July 23, 2018

A. INTRODUCTION

Litigation of disputes regarding easements is uniquely challenging. This is so because litigation of easement disputes typically presents a mixture of legal conundrums, factual disputes and human emotions. Litigation of easement disputes often involves legal complexity because of conflicting legal theories and precedents, which can make struggles over a few feet of land as much of a legal challenge as commercial disputes involving millions of dollars. Such litigation often presents unique factual inquiries because historic reconstruction is necessary to determine the intent of parties long since departed and/or patterns of past usage of an easement. Finally, the human element often supercharges an already complex dispute because easement battles almost always arise between neighboring property owners, whose emotions tend to run high. The following outline discusses each of these three elements in turn.

B. COMMON CAUSES OF ACTION AND THEORIES IN EASEMENT LITIGATION
When initiating an action to resolve a dispute over an easement, express, implied or prescriptive, several causes of action are often relied upon to frame the dispute, whether the plaintiff is the dominant tenement, seeking to clarify rights in an easement, or the servient tenement seeking to eliminate or limit the rights of a dominant tenement under an easement. Although not exhaustive, the following is a short list of the usual suspects, with some elements and requirements of each noted:

(1) QUIET TITLE
A quiet title action is brought, pursuant to statutory authority (CCP s. 760.010 et seq.), to establish title in a particular interest in land, which may include an easement. Unique requirements of this cause of action are that the complaint be verified under penalty of perjury (CCP s. 761.020), that the filing of the complaint be accompanied by a recorded notice of pending action (CCP s. 761.010), and that all parties with a potential interest in the land, which may include lenders or other easement holders, be joined as parties. (CCP s. 762.020.) To the extent proper notices are recorded and the proper parties are joined, a judgment in a quiet title action binds title. (CCP s. 764.030.)

(2) DECLARATORY RELIEF
A declaratory relief cause of action similarly places disputes between parties over the use or existence of an easement before the court for resolution. A cause of action for declaratory relief does not have the same procedural requirements as a quiet title action, and can be an effective means for resolving disputes between two litigants, which will be binding on the parties to the litigation and their successors, but not necessarily binding on third parties, unless joined in the litigation.

(3) INJUNCTIVE RELIEF
Injunctive relief, although technically not a legal cause of action, is frequently pled as a separate claim, requesting the court to issue orders, both temporary and permanent, limiting a party from exercising their rights with respect to an easement in a certain way, or preventing a party from interfering with the use of an easement. Such a claim must be joined with another cause of action, such as quiet title or declaratory relief, or a tort cause of action discussed below, setting forth the substantive legal right giving rise to the claim for injunctive relief. If interference with an easement is immediate, and causes the plaintiff irreparable harm, it may be possible to convince a judge to issue a temporary restraining order preventing such interference, on shortened notice, or a preliminary injunction preventing such interference, after more lengthy notice. In order to obtain such interim relief, it is generally necessary to show that the plaintiff is likely to succeed on the merits, that it will suffer irreparable harm which cannot adequately be compensated with damages, or for which damages will be difficult to ascertain, and that a balancing of equities favor the granting of the injunction. (CCP s. 526; Baypoint Mortgage v. Crest Premium Real Estate Etc. Trust (1985) 168 Cal.App.3d 818, 824; Robbins v. Superior Court (1985) 38 Cal.3d 199, 206.) It will almost always be necessary to post a financial bond to obtain a preliminary injunction, to protect the party that is restrained in the event that it is ultimately determined that issuance of the injunction was not appropriate. (Rule of Court 3.1150(f).)

The wording of the injunction can be critical. For example, if an injunction prohibits a party from taking certain action, such as interfering with an easement, it is deemed “prohibitory” and will continue in effect during an appeal absent an order by the Court of Appeal to the contrary. On the other hand, if the injunction mandates that a party take a particular affirmative action, for example removing a structure built in an easement, such an injunction may be deemed “mandatory” and is usually stayed by the filing of a notice of appeal, and triggers a more rigorous standard of appellate review. See Mason v. Superior Court (1972) 23 Cal.App.3d 913; Bo Kay Chan v. Gerdon Land Co. (1951) 103 Cal.App.2d 724.

(4) MISCELLANEOUS TORT ACTIONS.
In addition to the causes of action noted above, several tort causes of action are often pled in easement disputes, including trespass, nuisance and negligence. An action for trespass can often be used to seek damages caused by alleged misuse of an easement outside of its proper boundaries. Nuisance can be alleged where the activity constituting the misuse of an easement, or interference with an easement, fits within the definition of a nuisance. The definition of a nuisance may include “an obstruction to the free use of property.” Civ. Code Section 3481. Negligence is usually a weaker claim, but is often alleged and may trigger general liability insurance coverage for the defendant, which may be critical in instances where title insurance does not cover the dispute.

(5) COURT TRIAL OR JURY TRIAL.
With respect to causes of action for quiet title, declaratory relief and/or injunctive relief, such claims are generally equitable in nature and subject to a trial by the court, and not by a jury. Thomson v. Thomson (1936) 7 Cal.2d 671, 681-682 (quiet title); Wolford v. Thomas (1987) 190 Cal.App.3d 347, 425 (injunction to prevent nuisance); Porter v. Superior Court (1977) 73 Cal.App.3d 793, 801 (declaratory relief). To the extent that a claim for damages is asserted pursuant to the tort causes of action discussed above, there may be a right to a trial by jury. Typically, courts will bifurcate the trial of equitable issues and legal issues and try the equitable issues first. Walton v. Walton (1995) 31 Cal.App.4th 277.

C. LEGAL THEORIES SUPPORTING CLAIMS WITH RESPECT TO EASEMENTS

Although the above described causes of action of quiet title, declaratory relief and injunctive relief provide the legal framework for most easement disputes, they do not provide the substantive legal theories on which such causes of action may rely in particular cases. For example, a quiet title cause of action or a declaratory relief cause of action may be an appropriate vehicle in which to assert a legal claim for enforcement of an express easement, a claim to establish a prescriptive easement, or a claim to establish abandonment of an easement. Although this presentation regarding litigation defers, for the most part, to presentations by other speakers regarding substantive rights, the following is a brief discussion of some common legal theories asserted in litigation pertaining to easements and the distinctive elements of such claims.

(1) INTERFERENCE WITH EXPRESS EASEMENT
A claim for interference with express easement will usually depend upon proof of the express easement, which should usually be established from documents in the public record, and establishment of facts setting forth interference with use of the easement, whether by deliberate obstruction or otherwise. Although some cases in this regard are straightforward, unique challenges are presented when use of an easement has ceased for a period of time or where the location of the use, as exercised, varies from its legal description. See Johnstone v. Bettencourt (1961) 195 Cal.App.2d 538; Kosich v. Braz (1967) 247 Cal.App.2d 737.

(2) ESTABLISHMENT OF PRESCRIPTIVE EASEMENT
A prescriptive easement may be acquired by open, notorious, continuous adverse use, under claim of right, for a period of five years. Code Civ. Proc. Sec. 321; Civ. Code Sec. 1007; Applegate v. Ota (1983) 146 Cal.App.3d 702, 708. It should be noted that, unlike a claim for adverse possession, a plaintiff need not demonstrate payment of taxes on the subject property in order to establish rights to continued use. 

In Applegate, the plaintiffs introduced evidence that they had frequently used a roadway located in Carpinteria Valley, along with members of the public, for over six years. Defendant placed a chain link fence and boulders on the shoulder of the road, effectively preventing vehicles from passing one another. Division Six of the Second District Court of Appeal affirmed findings of the trial court that a prescriptive easement had been established, concluding that:

“[U]se of an easement over a long period of time without the landowner’s interference is presumptive evidence of existence of an easement. . . . Although appellants contend that there were no acts by respondents inconsistent with permissive use, once a prima facie case is shown by the party asserting the easement, the burden of proof shifts to the landowner to show the use is permissive rather than hostile."

146 Cal.App.3d at 708. Accord, Miller v. Johnston (1969) 270 Cal.App.2d 289, 294 (evidence of use creates a “prima facie" title to the easement by prescription); MacDonald Properties Inc. v. Bel-Air Country Club (1979) 72 Cal.App.3d 693, 702 (continuous use of an easement over a long period of time without the landowner’s interference is presumptive evidence of its existence). It should be noted that a prescriptive easement may not be used as a legal theory to obtain the right to use property exclusively. Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296; Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1091. Prescriptive easement may only be used as a means to obtain a non-exclusive easement.

(3) ESTABLISHMENT OF EQUITABLE EASEMENT.

Even if an exclusive easement cannot be proven pursuant to a theory of prescriptive easement, due to the prohibition on exclusive prescriptive easements noted above, other alternative theories may be available to achieve the same result.

One such legal theory is the doctrine of equitable easements, which allows a court, sitting in equity, to fashion a remedy which can involve the functional equivalent of an exclusive prescriptive easement. For example, in Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, the claimants had constructed extensive landscaping improvements on property they believed that they owned, within a chain link fence marking their property line. When their neighbor obtained a survey revealing that the improvements, which included a waterfall, rockwork and a pond, fell within the legal description of their property, they brought an action for declaratory relief to have the improvements removed. The trial court, balancing the relative hardships and equities, allowed the encroachments to remain, notwithstanding the fact that the improvers had not asserted a claim for adverse possession. The Court of Appeal affirmed, distinguishing the trial court’s equitable powers from the doctrine of prescriptive easement and finding that “the courts may exercise their equity powers to affirmatively fashion an interest in the owner’s land which will protect the encroacher’s use.” See also Linthicum v. Butterfield (2009) 175 Cal.App.4th 259 (road easement to land locked parcel); Tashakori v. Lakis (2011) 196 Cal.App.4th 1003 (access over driveway to land locked parcel).

(4) ABANDONMENT
There are various means by which an easement may be deemed terminated, including a merger of titles between the servient and dominant tenement, destruction of the servient tenement, the exercise of acts by the parties incompatible with the existence of an easement, or by abandonment. With respect to the abandonment of an express easement, abandonment generally must involve non-use coupled with the intent to abandon an interest. Wilson v. Abrams (1969) 1 Cal.App.3d 1030, 1035-1036. Such intent generally need not be established with respect to an easement obtained by prescription, which can be deemed abandoned by non-use alone.

In addition to the above theories of abandonment, which can be established in a declaratory relief or quiet title action, the Civil Code also provides a specific statutory procedure for establishing abandonment, with requirements similar to a quiet title action. Pursuant to Civil Code Section 887.010 et seq., an easement may be deemed abandoned if, for a period of 20 years immediately preceding commencement of the action: (1) the easement is not used at any time, (2) no separate property tax assessment is made of the easement or, if made, no taxes are paid on the assessment, and (3) no instrument creating, reserving, transferring, or otherwise evidencing the easement is recorded. (Civ. Code Section 887.050.) It should be noted that such an action can be avoided by filing a notice of intent to preserve easement within the 20 year period. (Civ. Code Section 887.060.)

D. FACTUAL CHALLENGES IN EASEMENT LITIGATION
Disputes over easements often present unique factual challenges. This is so because disputes that arise in the present day regarding the existence or enforcement of easements often involve issues of fact regarding events which happened many years ago. Such events may include the recording of various documents of title affecting easement rights which have long ago been forgotten, the conduct of former owners of the properties at issue, who may be deceased or otherwise unavailable, and patterns of historic use of an easement which frequently need to be established through creative means. The following is a discussion of some of the factual issues which frequently arise in easement litigation, and some means for resolving them.

(1) COMPLEXITIES AND AMBIGUITIES OF TITLE
Factual issues which may arise under this category include potentially conflicting express easements or deeds, potentially defective legal descriptions accompanying express easements or deeds, the existence of CC&Rs which may adversely affect the enforcement of easements or many other unforeseen issues. The key to resolving such issues will often turn on the retention of experts, both experts in title matters to research and verify the historic record of title with respect to a property, and expert surveyors to interpret documents of title and establish the precise location of easements described in legal documents.

(2) IDENTIFYING INTERESTED PARTIES
As noted above, particularly with respect to a quiet title action, it may be essential to identify all parties with a potential interest in the property. Sometimes this task is simple, when the dispute involves two parties who are clearly the sole owners of adjoining properties which are subject to the dispute. However, careful research needs to be performed to insure that there may not be other parties to the dispute who must be joined as parties, for example lenders who hold a legal interest in the property, past property owners who may still hold some reversionary or secondary interest in an easement, or neighbors or other third parties who may also be users of the easement.

(3) IDENTIFYING HISTORIC USES OF PROPERTY
The historic uses of an easement, or of an adjoining property, are often at issue in litigation involving easements. Such issues are particularly important in cases involving claims of prescriptive easement and cases involving claims that the location of an easement has been established or limited by historic use. Some of the tools for establishing facts regarding historic use are obvious, and some less so:

(4) INTERVIEWS WITH PERCIPIENT WITNESSES
Although this strategy falls within the category of the obvious, it is sometimes necessary to demonstrate tenacity and creativity to locate percipient witnesses with knowledge of the facts. For example, a prior owner of the property may be deceased, but the grown children of the property owner, who once played in the easement area now fenced in by another property owner, may be alive and easily located. A property owner nearby, who has lived within view of the easement area may provide another resource. Interviews with such witnesses should not stop with their recollection of the facts. Frequently old family snap shots can hold the key of establishing historic use.

(5) HISTORIC MAPS, SURVEYS AND PHOTOGRAPHS
Even if percipient witnesses have no maps or photographs of a disputed area, such documents may be available from other sources. Publicly recorded maps are an obvious source. Other less obvious sources may include photographs available through public museums or historical associations. Other resources for such documents include the files of title companies who may have conducted title searches or property inspections associated with prior sales of the property, and files maintained by surveyors who may have surveyed the property in prior years. 

(6) AERIAL PHOTOGRAPHS.
Aerial photographs can be an excellent resource in easement litigation, as well as real property litigation generally. For example, the University of California periodically compiles aerial photographs of the Santa Barbara area. Changes in historic patterns of use, even down to the movement of a particular path or roadway over a period of time, can often be pinpointed through changes observable in aerial photographs taken of the same area over a period of years. 

(7) WHAT IS UNDER THE GROUND?
Sometimes investigation of historic patterns of usage do not end with exploration of what is above the ground. For example, excavation of a few feet of ground may disclose a type of brick or pavement verifying historic use of an easement for a roadway, or reveal the location of an abandoned sprinkler system confirming historic use of the property for landscaping by a particular landowner.

E. HUMAN CHALLENGES IN EASEMENT LITIGATION

Although litigation over easements may only involve a small piece of land, such litigation frequently, if not always, is of exceeding importance to the litigants, either because the land in question is necessary for ingress and egress to their property, or because use of the land by another is a threat to privacy. In short, the land at issue in an easement dispute may be insignificant to an objective third party, but can be of paramount importance to both property owners, who view the easement dispute as an invasion of their personal rights and privacy interests. Although one’s home may be one’s castle, when two adjacent castles are required to share the same moat, emotions tend to run high. Advice for dealing with the human element of easement disputes is more difficult to set forth in objective terms. However, the following may provide some useful guidelines:

(1) IDENTIFY CLIENT OBJECTIVES AND SET REALISTIC GOALS
Clients in easement disputes frequently seek all or nothing remedies that may, or may not, have a realistic chance of success, but frequently have serious down sides if unsuccessful. Easement litigation can be very expensive because of the complex factual and legal issues involved, as well as the need to retain experts. Particularly where insurance is not available, clients need realistic advice, out of the starting gate, as to the potential costs of litigation, as well as the downsides of not succeeding in the litigation, and guided to a cost effective litigation strategy.

(2) EXPLORATION OF MEDIATION OR OTHER ALTERNATIVE DISPUTE RESOLUTION MECHANISM.
Courts now frequently require the parties to explore mediation or other alternative dispute mechanisms early on in a litigated matter. Easement disputes are particularly good candidates for mediation, because they frequently involve human relationships that have become unworkable, as well as objective disputes regarding interests in real property. Like most civil litigation matters, most easement disputes are resolved in settlement, whether before or after trial. Pursuit of such a solution earlier, rather than later, can be the most effective solution for all parties.

(3) EXPLORE CREATIVE SOLUTIONS.
Easement disputes do not have to be resolved by one party winning, and the other losing, or even by splitting the difference. Numerous other solutions may be available to resolve easement disputes. By means of example, if parties truly cannot get along in a shared use arrangement, it may be possible to partition shared property to provide for apportioned exclusive use rather than shared use or to fashion a limited exclusive easement, rather than a broader non-exclusive easement, to satisfy the same objective. Other creative solutions may be possible as well, such as exchanging the quit claim of an easement for a long term lease or irrevocable license to use another portion of the property to satisfy the same objectives as the easement. In many if not all cases, creative solutions can serve to provide both clients with results that could not be achieved in litigation, win or lose.