By Glen Hansen
The Court of Appeal for the Third Appellate District held in Cottonwood Duplexes, LLC v. Barlow(November 13, 2012, C069564) ___ Cal.App.4th ___, that a trial court may not order a partial extinguishment of an express easement based on a finding that the reasonable use requirements of the dominant tenement do not require the full size and scope of the original easement.
In Cottonwood, a homeowner (Barlow) purchased property (dominant tenement) that included a 60-foot-wide easement for road and utility purposes along neighboring parcels across the entire southerly portion of Barlow’s property. The easement benefitted Barlow and other property owners. A subdivision was later created on several of those neighboring parcels (servient tenement). However, the easement prevented the developer of the subdivision from building on some of the proposed lots in the subdivision that would have abutted Barlow’s property. Those lots were planned with the expectation that either the easement would be quit-claimed in its entirety or that the easement would be reduced to only 15 feet wide against Barlow’s southern property line. The county would not issue building permits for those lots with the original easement in place. While the other property owners in the neighborhood agreed to abandon their rights to the easement, Barlow refused. The developer then brought an action against Barlow for declaratory relief and quiet title to get the court to either (1) declare that the easement had been extinguished due to “subsequent changes to the subdivision map and reasonable needs and historical uses by the parties”; or (2) declare that the scope and width of the easement be reduced to no more than 15 feet along the edge of Barlow’s property. The developer’s experts testified at trial that “there was no reasonable likelihood that the [county] would ever allow any type of primary access road to service … Barlow’s property within the confines of the … easement” and at best the county “might possibly allow a commercial driveway entrance as wide as 32 feet.”
The trial court ruled that “the reasonable use requirements of the Barlow Parcel both presently and in the future do not require the full size and scope of the … easement.” The trial court found that all utilities serving Barlow’s property were located on the public road that ran along Barlow’s property on the north, and the telephone poles were on Barlow’s property north of the easement. The trial court also found that Barlow’s property had “adequate and full access” from public streets on the north and east without having to resort to any access from the easement. The trial court also noted that reducing the size of the easement was not only consistent with Barlow’s “reasonable access requirements,” but would also would allow the developer “to proceed with appropriate use of its property and its approved subdivision without the impediment of the . . . easement,” which would “constitute imposition of the least burden on [the developer’s] parcel within the proper confines of the law relating to easements.” Based on “a reasonable extension” of the decision in Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697 (“Scruby”), the trial court narrowed the easement to only 32 feet wide, shortened the easement to just over half the length of Barlow’s property, and limited its use to only ingress and egress purposes, thereby eliminating Barlow’s utility easement altogether. Barlow appealed. The Court of Appeal reversed.
The Court of Appeal noted that “the trial court did not cite any existing law authorizing a court to partially extinguish a granted easement based on the court’s determination of the dominant tenement’s reasonable needs.” The court rejected the trial court’s reliance on Scruby. In Scruby, the only access to the plaintiffs’ landlocked property from the highway was over a nonexclusive 52-foot-wide roadway and utility easement across the defendant’s property. However, the plaintiffs actually used only a 15-foot wide area of the easement for access to their property. The court in Scruby allowed the defendant to continue to place water tanks and plant grape vines within the area covered by the easement that the plaintiffs were not using, because the plaintiffs had
not been granted the right to exclusive use of each and every square inch of the easement area. Rather, [the defendant] may make continued use of the easement area although it may not do anything that unreasonably interferes with [the plaintiffs] having access to their property. [237 Cal.App.4th at p. 706.]
The Court of Appeal in Cottonwood distinguished Scruby because the latter “did not consider whether a court can partially extinguish a granted easement if the evidence shows that the owner of the dominant tenement does not reasonably need, either now or in the future, the entirety of the easement.” The Cottonwood court explained that the legal principles applied in Scruby cannot be logically “extended” to sanction the extinguishment of a granted easement, either in whole or in part, against the will of the easement owner. “Scruby dealt with the scope of use of an easement, not its continued existence.”
The Cottonwood court also rejected the developer’s argument that Barlow’s easement was extinguished because there was no evidence that Barlow intended to abandon any part of the easement that was granted to him. The court explained:
[Developer’s] argument here rests on the premise that “changed circumstances over the history and development of the” servient tenement can result in the partial extinguishment of a granted easement, without the dominant owner intending to abandon the easement. In other words, the owner of the servient tenement can, by making a part of a granted easement for all practicable purposes unusable, compel the extinguishment of that part of the easement against the will of the dominant owner. No California case, or any logical extension of a California case, supports this premise.
The Court of Appeal also rejected the developer’s argument that the public policy in favor of putting land to beneficial use supported the trial court’s decision. The fact that Barlow’s retention of the easement prevents the developer from building out all of the planned residential lots in the subdivision is the result of the developer’s choice to subdivide the servient tenement in a manner that required abandonment or a reduction of the easement. The court explained: “[I]f we were to accept [developer’s] public policy argument, we would be sanctioning the partial extinguishment of a granted easement when it was the voluntary, unilateral actions of the servient owner that rendered a portion of the servient tenement covered by the easement unusable.”
The court ordered that judgment be reversed and issued in favor of Barlow.
Glen Hansen is senior counsel 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.