In Legal War Between Brothers Over An Implied Easement For Well Water, The Court Mandates ... Sharing
By Glen C. Hansen
In Thorstrom v. Thorstrom (2011) 196 Cal.App.4th 1406, the Court of Appeal for the First Appellate District applied the doctrine of implied easements and held that the water from a well dug by a mother on one of her two parcels of neighboring property should be reasonably shared by her sons after the mother died and her sons took separate possession of the parcels.
Property owned by Evelyn Sallinen before her death in February of 2003 was divided into two legal parcels situated in Fort Bragg, California: a larger parcel of 7.2 acres on which was located the family home, and a smaller parcel of 1.37 acres where Evelyn built a home in 1968, which she occupied with her husband until her death. Her son, Plaintiff Wayne Thorstrom, and his wife Arlyne (collectively, “Plaintiffs”) occupied the family home on the larger parcel (“Plaintiffs’ Parcel) continuously beginning in 1969. Evelyn’s other son (and brother of Wayne), Alan and his wife Linda (collectively, “Defendants”) occupied the home on the smaller parcel (“Defendants’ Parcel”) after Evelyn’s death.
Three wells were located on Evelyn’s property. An “old well” about 12 to 15 feet deep and a pump house on Plaintiffs’ Parcel provided good water, but would often “go dry.” A well drilled on Defendants’ Parcel in 1969 (“1969 Well”) supplied Evelyn's water uses, which were exceedingly modest. Plaintiffs were sometimes forced to use the 1969 Well for their source of water when the Old Well was dry. According to Plaintiffs, Wayne inspected the pump for the 1969 Well regularly; it continued to function properly to provide Evelyn with water until her death.
In 1980, Evelyn paid for a larger well and pump placed on Plaintiffs’ Parcel (“1980 Well”), so they “would have water all the time.” The housing for the 1980 Well and its electronic controls remained on Defendants’ Parcel to avoid additional costs associated with installation of entirely new equipment. A faucet on the 1980 Well was connected by Plaintiffs to an underground hose that ran to the Old Well, and from there to the plumbing for Plaintiffs’ house. The electrical system located at Evelyn’s house was used to activate the faucet and underground line to pump water from the 1980 Well to the Old Well. No lines or pipes connected the 1980 Well to the 1969 Well or to Defendants’ Parcel. After the 1980 Well was installed, Evelyn continued to use the 1969 Well for her water needs. According to Plaintiffs, before Evelyn’s death the 1980 well was exclusively used to serve Plaintiffs’ Parcel. Evelyn told Wayne’s wife, Arlyne, that both the Old Well and the 1980 Well “belonged” to Plaintiffs, and the 1969 Well on Defendants’ Parcel was “Alan’s well.”
On September 11, 1997, Evelyn created a revocable living trust (the Trust) into which the two parcels of property were transferred. According to the Trust provisions, Wayne was granted the Plaintiffs’ Parcel and Alan received Defendants’ Parcel. A will executed by Evelyn on April 9, 2000 distributed her real property in essentially the same manner. Evelyn also signed what the court called a “rather curious” handwritten document entitled “Minutes Evelyn V. Sallinen Personal Trust” (Minutes), dated “Feb 21—20001 [sic],” which referred to wells Nos. 1 and 2, and stated that the “water well” located on Plaintiffs’ Parcel “shall be used for emergency purposes in the case of drought or pump break down for the home” on Plaintiffs’ Parcel. A later amendment to her Trust provided that, upon her death, a two-acre parcel was to be taken from Plaintiffs’ Parcel and given to Arlyne’s son.
Plaintiffs testified that, after Defendants took possession of Defendants’ parcel following Evelyn’s death in 2003, Defendants planted various gardens, numerous trees, and a lawn on their parcel that did not exist while Evelyn was alive. To water the gardens and wash their vehicles Defendants had “water going at all times.” Also, without Plaintiffs’ permission, Defendants removed the faucet on the 1980 Well that served Plaintiffs’ parcel. Over Plaintiffs’ objection, in 2005 Defendants installed a 2,500-gallon water storage tank on Defendants’ Parcel. The tank was designed to refill when the water level dropped by 100 to 150 gallons from the tank’s capacity. Underground pipes from the 1980 well on Plaintiffs’ Parcel, which had been connected to the pump house for the 1969 Well on Defendants’ Parcel, were rerouted to the new storage tank. Defendants diverted essentially all of the water from the 1980 Well to the new storage tank for use on Defendants’ parcel. Plaintiffs thereafter received only a minute and entirely inadequate quantity of dirty water from the 1980 Well for use on Plaintiffs’ parcel. On several occasions Plaintiffs attempted to have plumbers determine the reason they “weren't getting any water” from the 1980 well, but, despite a restraining order against him obtained by Plaintiffs, Alan harassed and threatened Plaintiffs’ workers until they left. Plaintiffs further testified that Alan harassed her through threatening telephone calls in which he swore and screamed at her, and on one occasion by blocking a road on the property.
Plaintiffs’ expert found that the equipment on the 1969 Well was no longer operational, the pump was inoperable, and the flow rate for the well was “extremely marginal” for domestic use, although a “single person living in the house with no landscaping or yard work” might “get by” with conservation measures.
Defendants testified that the 1969 Well was “abandoned,” and that the only source of water for the house on Defendants’ Parcel was the 1980 Well on Plaintiffs’ Parcel. The pressure tank in the pump house on Defendants’ Parcel is connected by pipes to the 1980 Well. Alan also observed that water pipes ran from the 1980 well to defendants' house. Alan acknowledged that he unscrewed a spigot or valve connected to a PVC pipe on the 1980 Well, although he testified that he did not realize that Plaintiffs were taking any water from the 1980 well. Because Alan paid the electric bill for the 1980 Well, and the pipes from that well were connected to his house, he “didn't feel that that water was anybody else’s.”
Plaintiffs filed a complaint against Defendants on February 10, 2005, to quiet title, for declaratory and injunctive relief, and for trespass. In a bench trial, the trial court found that Defendants have an implied “easement for the continued and unrestricted use of water from the drilled well located on the 5.2-acre parcel” owned by Plaintiffs. The trial court restricted Plaintiffs’ use of water from the 1980 Well to “emergency purposes” only “in time of documented drought or documented breakdown of the pump” on the Old Well on Plaintiffs’ Parcel, and only upon prior reasonable notice to defendants. Plaintiffs appealed.
The Court of Appeal agreed with the trial court and Plaintiffs that none of the testamentary documents created an express easement. Evelyn distributed the Plaintiffs’ Parcel on which the 1980 Well is located to Plaintiffs without granting Defendants any form of express grant or reservation of an easement to use the well water from Plaintiffs’ Parcel. The “Minutes” not only did not expressly grant Defendants an easement to water from the 1980 Well, but that document failed to qualify as any form of grant deed or reservation of rights to water for the benefit of Defendants’ Parcel.
The Court of Appeal also agreed with the trial court that an implied easement exists under the facts in this case. An easement will be implied when, at the time of conveyance of property, the following conditions exist: (1) the owner of property conveys or transfers a portion of that property to another; (2) the owner's prior existing use of the property was of a nature that the parties must have intended or believed that the use would continue; meaning that the existing use must either have been known to the grantor and the grantee, or have been so obviously and apparently permanent that the parties should have known of the use; and (3) the easement is reasonably necessary to the use and benefit of the quasi-dominant tenement. Because the law does not favor the implication of easements, an easement by implication will not be found absent clear evidence that it was intended by the parties. In order to determine that intent, courts take into consideration the circumstances attending the transaction, the particular situation of the parties, and the state of the thing granted. In this case, while the evidence indicated that Evelyn constructed the 1980 Well for Plaintiffs’ use, and thereafter made extremely limited use of the well for her own purposes, nevertheless it did not appear that Evelyn intended to transfer Defendants’ Parcel to Defendants without also granting them any access to the water from the 1980 Well, or to make them dependent on the limited and unreliable water from the antiquated 1969 Well. Also, Defendants established that the easement was reasonably necessary for the use and benefit of their “quasi-dominant tenement.”
However, the Court of Appeal reversed the judgment because the scope of the easement granted by the trial court to Defendants was excessive. Where an easement is acquired by an implied grant, the scope of the easement is measured by the extent the property was obviously and permanently used at the time when the transfer was completed; that is inferred from all of the circumstances of the case among which the existing and reasonably to be expected uses are considered. Among the circumstances to be considered are the use which is being made of the dominant tenement at that time, and such uses as the parties might reasonably have expected from the future uses and normal development of the dominant tenement. In addition, the use of an easement cannot be altered to impose an unreasonable or unintended burden on the servient tenement. And the owner of the servient tenement may make any use of the land that does not interfere unreasonably with the easement.
Here, the implied easement as granted by the trial court and exercised by Defendants impermissibly interfered with Plaintiffs’ right to continue their reasonable use of the 1980 Well. Nothing in the record suggests that the 1980 Well was drilled, constructed and used to benefit Defendants’ parcel alone. Plaintiffs continued to use water from the 1980 Well for the reasonable needs associated with their household and property without diminution during Evelyn's lifetime.
The court held that “Plaintiffs and Defendants are both entitled to reasonable residential use of the water from the 1980 Well. Neither party may make excessive use of the water which unnecessarily impedes the rights of the other.” The court added: “Each party is entitled to reasonable use of the well consistent with the volume of water available at any given time.” Defendants are entitled to more water than Evelyn used because “reasonable increase in the domestic use of the 1980 Well water by defendants may have been expected in light of Evelyn’s unusually parsimonious water use as the sole previous occupant of defendants’ parcel.” But Defendants’ conduct regarding the water storage tank was also wrong: “the addition of a storage tank with an automatic refill feature that functioned to deprive plaintiffs of the beneficial use and enjoyment of the water from the 1980 Well on their parcel was not, under the facts presented, within the reasonable contemplation of the parties when the easement was created. To find that defendants' use of the well water is unreasonable under the circumstances is an understatement.”
The court found it necessary to issue very specific injunctive relief for future harmony in the siblings’ water wars: “Defendants are ordered to cease any and all use of the existing 2,500-gallon water storage tank on their property, which we find constitutes an excessive, unintended use and storage of the well water; defendants are proscribed from any unreasonable storage of water derived from the 1980 Well; defendants are also prohibited from interference by any means with plaintiffs’ use of their reasonable share of the well water. We do not prohibit defendants … from reasonably storing water from the well in a manner that does not result in appropriation of plaintiffs’ share of the water.”
So at the end of the litigation the court ordered the brothers to … share.
Glen C. Hansen is an attorney at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.