By Cori Badgley and Nathan Jones

Easement disputes between neighboring property owners are easy fuel for lawsuits. Generally, an easement is a right to use another’s property, for a specific purpose. For the most part, easements are non-exclusive, meaning that so long as the underlying property owner does not interfere with the easement-holder’s right of use, he can continue to use the easement property. While this is the general rule, Gray v. McCormick (2008) 167 Cal.App.4th 1019 is an easement dispute case where the easement holder (“Gray”) claimed that the servient property owners (“McCormick”) had no right to use a connecting driveway that ran across their property because Gray held an exclusive easement over McCormick’s land.

The parties in this case are neighbors in a master planned subdivision. McCormick’s property fronts on the street. Gray’s property is set off the street directly behind McCormick and is connected to the street by an extended driveway that is located on the side of McCormick’s property paralleling the property line. The recorded easement was approximately 16 feet wide by 90 feet long. The easement was recorded in the CC&Rs for the community as an “exclusive” easement. McCormick had been using the easement for passage of their horses, transportation for their horse feed and manure, and access to their stables in their backyard. Gray had plans to improve the driveway, including paving and landscaping the easement to improve its general appearance from unimproved dirt track to a formal driveway. Gray preferred no horse refuse. Litigation ensued after the parties could not agree on McCormick’s use. Gray alleged that he had an absolute right to exclude McCormick from any driveway use.

McCormick countered that the term “exclusive” was intended only to exclude outsiders from using the driveway, but not at their use, since the easement runs across McCormick’s property. In other words, so long as McCormick did not interfere with the Gray’s access, ingress and egress, McCormick could continue to use the easement for access and use to the back yard. McCormick further argued that exclusive easements are not permitted under California law. A trial court judgment was entered in favor of McCormick. This appeal followed.

Gray argued on appeal that the exclusive easement permitted him to exclude McCormick from the property. The court of appeal analyzed the intended degree of exclusivity in the easement language contained in the CC&Rs. “Under section 806 of the Civil Code, the extent of a [easement] is determined by the terms of the grant.” After reviewing the easement terms, the court declared that the overall structure of the grant, along with the specific enumerated rights of the easement, such as the right to construct, install, maintain and repair; and requirements to insure the driveway, showed that the easement was intended to be exclusive. While the court acknowledged that the general rule of easements permits mutual use so long as there is no interference by the servient landowner with the easement holder’s rights, citing Pasadena v. California-Michigan etc. Co. (1941) 17 Cal.2d 576, the appellate court distinguished this case because a general easement was not at issue. The cases cited by McCormick involved the interpretation of non-exclusive easements; therefore they were not controlling authority.

McCormick argued that exclusive easements are prohibited under California law, claiming that they amounted to complete ownership of real property, rather than a permitted use. The appellate court disagreed, and held that previous case law recognized the viability of exclusive easements in California. (Pasadena v. California-Michigan etc. Co.; Blackmore v. Powell) The easement language analyzed in the Blackmore case, which was even less restrictive than in the instant case, resulted in the creation of an exclusive easement. The appellate court further held that exclusive easements can be created by prescription, including the mistaken construction of improvements on another’s land. (Otay Water District v. Beckwith (1991) 1 Cal.App.4th 1041 [mistaken construction of reservoir on servient estate created exclusive easement through prescription]; Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749 [landscaping improvements, including sand traps, waterfalls, and swimming pool, mistakenly built on servient estate created encroachment, equitable powers entitled encroacher to exclusive use, also recognizing existence of exclusive easements].)

On an interesting side note, the appellate court did recognize that exclusive easements effectively amount to a conveyance of property, albeit in an unusual form. (See analysis of Blackmore v. Powell (2007).) The court skirted the substantive consequences of the issue by finding state case law that had already recognized the use of exclusive easements as proper in California. Of further interest was the courts’ refusal to consider subsurface and air rights in the case to determine if McCormick retained some remaining property right under or above the driveway easement. The court narrowed the case holding in interpreting the terms of the exclusive easement as applied to the facts here, in which a dispute over subsurface or air rights were not presented at trial or on appeal.

The appellate court effectively reversed the trial ruling, holding that any use of the surface easement area by McCormick was inconsistent with the exclusive use granted to the Grays. McCormick, albeit record owner of the property, cannot now walk, ride, or access the side of the property that holds the easement. While they pay mortgage, taxes, and insurance on the property, they have no right of use whatsoever. McCormick may not have been aware that they were buying such an impaired property, but the court did not consider any hardship to McCormick its resolution of the case would create. This case underlies the importance of determining the existence and effects of all encroachments and restrictions that exist on real property before deciding to purchase, or at least attempting to predict their effects.

Cori Badgley is an associate with Abbott & Kindermann, LLP and Nathan Jones is a law clerk with the firm. 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, nor 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.