Easements

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By Glen Hansen

In Zanelli v. McGrath (2008) 166 Cal.App.4th 615, the Court of Appeal, First Appellate District clarified the circumstances under which easements may be extinguished under the doctrine of merger where the dominant and servient tenements are jointly owned by more than one person. As with most easement cases, the specific facts in Zanelli were critical to both the establishment and extinguishment of the easement in question.
Continue Reading Extinguishing Easements Through Merging Properties Under Common Ownership

By Cori Badgley

In the area of prescriptive easements, courts and practitioners have been challenged by the issue of who has the burden to prove “adverse use.” “The elements necessary to establish an easement by prescription are open and notorious use of another’s land, which use is continuous and uninterrupted for five years and adverse to the land’s owner.” Some courts have held that by providing evidence that the use is open, notorious and continuous, a presumption arises that the use is also adverse, and therefore, the defendants, and not the plaintiffs, must prove that the use is not adverse. The Court of Appeal, Second Appellate District in Grant v. Ratliff (July 16, 2008) 2008 Cal.App.Lexis 1063, disagreed with these courts.
Continue Reading Long-time Debate Over Presumptions in Prescriptive Easement Cases Settled by Second Appellate District

By William W. Abbott

The Subdivision Map Act (“SMA”) contains a process for re-subdividing all or a part of an existing subdivision. When that occurs, public easements shown on the prior map are extinguished unless incorporated into the new map. (Gov. Code, § 66499.20 ½.) This sounds like a simple enough concept, but in reality, there is nothing truly simple whenever the facts involve dirt, the SMA and easements. This is illustrated by the recent case of Christian v. Flora (June 30, 2008) 2008 Cal.App.Lexis 959.
Continue Reading Old Maps, Re-Subdivision Maps, and Relocated Easements

By William W. Abbott

The case of Brewer v. Murphy (Court of Appeal, Fifth Appellate District, Case No. F051700) involved three riparian owners and a dispute over a spring box and pipeline. The riparian owners are listed here in order from the lower riparian to the upper riparian: Brewer, Hagg and Murphy/Klein. In 1979, Brewer acquired property in eastern Fresno County. The source of water was a spring box on property owned by Murphy/Klein’s predecessor, located roughly one mile away. When Murphy (and later Klein, who acquired a part interest from Murphy) took title, neither was actually aware of the spring box or pipeline.
Continue Reading Open Hostility: Validating Prescriptive Easements

By William W. Abbott

The California Attorney General was recently asked whether or not the grant of a conservation easement on a portion of a parcel constituted a “division” for purposes of the Subdivision Map Act. (Government Code, §§ 66410 et seq.) The AG concluded, as many surveyors, local officials and land use attorneys had already determined, that such a conveyance was in fact, not a subdivision. (California Attorney General Opinion 06-801, August 14, 2007.)…
Continue Reading Conservation Easements and the Subdivision Map Act

By Leslie Walker and Joel Ellinwood, AICP

Establishing estoppel against the government in land use matters requires additional findings not required against a private party. In Feduniak v. California Coastal Commission (2007) 148 Cal.App.4th 1346, two Pebble Beach landowners found out exactly how difficult that task can be.
Continue Reading The Difficulty in Establishing Estoppel Against A Public Agency