Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. SC091489, Cesar C. Sarmiento, Judge.
Parker, Milliken, Clark, O’Hara & Samuelian and David K. Eldan, for Defendants and Appellants.
Law Office of Nancy B. Goldstein and Nancy B. Goldstein, for Plaintiff and Respondent.
ZELON, J.
INTRODUCTION
Respondent Bruce Collins filed a complaint to quiet title over 12 acres of property located in Los Angeles County. Collins alleged that Appellants Park Lands Ranch, LLC and Yogibear Properties, LLC’s sole interest in the property was a recorded easement that ran across the eastern portion of the land. Appellants alleged that, in addition to the recorded easement, they owned an easement by necessity over two dirt roads that ran along the western portion of the property. After holding a bench trial, the court ruled that Appellants’ recorded easement terminated any pre-existing easement by necessity. Appellants appeal the trial court’s ruling; we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Respondent Bruce Collins owns approximately 12 acres of land located in Los Angeles County, California. The property is bordered to the north and west by Mulholland Highway. Appellants Park Lands Ranch, LLC and Yogibear Properties, LLC (collectively PLR) own approximately 10 acres of property situated on the southern border of Collins’s land. Currently, the only passable route to PLR’s property is two dirt roads that run across the western portion of Collins’s land to Mulholland Highway.
In December of 2007, Collins filed a complaint to quiet title seeking a determination that PLR did not have an easement interest in the dirt roads. The complaint alleged that PLR’s only interest in Collins’ property was a recorded easement that linked PLR’s land to Mulholland Highway along an unimproved route located on the eastern portion of Collins’ land. Shortly after Collins filed suit, PLR filed a cross complaint to quiet title alleging that that it had an easement by necessity over the roads on the western side of Collins’ property.
At trial, PLR introduced evidence that, prior to 1907, the parties’ adjacent properties were owned in common by an individual named Skinner. In February of 1907, Skinner conveyed the 10 acres of land now owned by PLR to an individual named Norberg. Skinner retained possession of approximately 150 additional acres, which included the 12 acres now owned by Collins. PLR’s expert witness testified that the 1907 conveyance severed access between Nordberg’s land and a public road that ran through the property that Skinner had retained. The expert concluded that because “Norberg would have to cross Skinner’s property to get to [the road]... you’ve created a strict easement for necessity.” PLR further contended that the appropriate location of the easement by necessity was along the two dirt roads on the western portion of Collins’s land, arguing that the roads “provide[] the only existing and actual access from Mulholland to the [PLR] land” and “impose[] the least intrusion on and inconvenience to Collins’ land.”
Collins’s evidence established that, between 1965 and 1978, PLR’s predecessors in interest had secured various land rights over the eastern portion of Collins’s property that resulted in a single recorded easement connecting PLR’s property to Mulholland Highway. Collins contended that because this recorded easement provided PLR access to Mulholland Highway, it terminated any previously existing easement by necessity. Although PLR stipulated to the existence of the recorded easement, it argued that the easement did not afford “reasonable” or “adequate” access to Mulholland Highway because it ran over steeply-graded, unimproved land. PLR’s expert testified that, due to the contours of the land within the recorded easement, it would cost “well over a million dollars” to construct a passable route to Mulholland Highway. Collins’s expert, on the other hand, testified that a road could be built on the easement for “less than half a million dollars.”
The evidence at trial indicated that, when purchasing the property, Appellants were provided with easement deeds illustrating the route of the recorded easement.
In its closing brief, Collins argued that PLR had failed to establish an easement by necessity. Collins first asserted that PLR’s claim failed because it had not introduced sufficient evidence that Skinner had access to a public road when he conveyed property to Norberg. Collins also argued that, under California law, an easement by necessity terminates when it is no longer absolutely necessary to provide access to a public way. Therefore, even if PLR had established that Skinner’s 1907 conveyance created an easement by necessity, the easement terminated when PLR’s predecessors in interest obtained a recorded easement connecting PLR’s property to Mulholland Highway.
PLR’s closing brief argued that its expert witness’s testimony provided sufficient evidence to conclude that Skinner had access to a public road at the time he conveyed property to Norberg. PLR further argued that although California law requires strict necessity for the creation of an easement by necessity, such an easement only terminates if the dominant tenement “acquires other access that is reasonably sufficient for the beneficial enjoyment of the dominant estate.” In PLR’s view, the recorded easement over the eastern portion of the Collins’s property did not provide reasonable access to Mulholland Highway due to the costs of building a passable road along the route.
On January 21, 2009, the trial court entered judgment in favor of Collins. The court declined to rule on whether PLR had proven an easement by necessity. Instead, it held that, regardless of whether such an easement had existed as the result of the 1907 conveyance, it was terminated by the recorded easement acquired by PLR’s predecessors. The court disagreed with PLR’s contention that different legal standards applied to the creation and termination of easements by necessity, ruling that, in both instances, California law required strict necessity. As a result, PLR’s evidence regarding the costs associated with constructing a passable route over the recorded easement was irrelevant. PLR timely appealed the judgment.
DISCUSSION
A. Standard of Review
PLR concedes that, under a standard of strict necessity, its recorded easement would terminate any pre-existing easement by necessity. However, PLR argues that, contrary to the trial court’s ruling, an easement by necessity only terminates if the easement owner obtains alternative access that is “reasonable” or “adequate.” PLR further contends that, in this case, its recorded easement did not provide reasonable alternative access to Mulholland Highway because the cost of building a passable road along the easement would exceed the value of PLR’s property.
The trial court’s determination that a strict standard of necessity applies to the termination of easements by necessity presents a question of law that we review de novo. (Kellogg v. Garcia (2002) 102 Cal.App.4th 796, 803 (Kellogg).) Because we conclude that the trial court applied the correct legal standard in this case, we need not decide whether PLR’s recorded easement provided reasonable access to Mulholland Highway, which presents a question of fact that would be subject to the substantial evidence standard of review. (See Leonard v. Haydon (1980) 110 Cal.App.3d 263, 269 (Leonard) [affirming case law holding that whether an “easement [is]... reasonably necessary to the beneficial enjoyment of the land granted... is a question of fact for the trial court”]; Kellogg, supra, 102 Cal.App.4th at p. 803.)
B. The Trial Court Properly Applied California Easement Law
1. Overview of easements by necessity
“Generally, an easement by necessity arises from an implied grant... when a property owner (the grantor) conveys to another (the grantee) one out of two or more adjoining parcels of the grantor’s property. When there is no express provision for access, and the parcel conveyed is either landlocked entirely by the parcels retained by the grantor or landlocked partly by the grantor’s retained land and partly by the land of others, the grantee may claim an implied grant of a right-of-way of necessity over the land retained by the grantor. [Citation.]... [T]he landlocked parcel benefitted by the implied right-of-way is called the dominant tenement or dominant estate, while the burdened property is referred to as the servient tenement or servient estate. Remote grantees in the chain of title may assert the easement long after its creation by the original common grantor, and despite the failure of a prior grantee to exercise the right.” (Murphy v. Burch (2009) 46 Cal.4th 157, 162-163 (Murphy).)
“The circumstances for the creation of an easement by necessity... are well known: ‘An easement by way of necessity arises... when it is established that (1) there is a strict necessity for the right-of-way, as when the claimant’s property is landlocked and (2) the dominant and servient tenements were under the same ownership at the time of the conveyance giving rise to the necessity.’ [Citations.]” (Kellogg, supra, 102 Cal.App.4th at p. 803; see also Murphy, supra, 46 Cal.4th at p. 163.)
Under the strict necessity requirement, “the party claiming the easement must demonstrate it is strictly necessary for access to the alleged dominant tenement. No easement will be implied where there is another possible means of access, even if that access is shown to be inconvenient, difficult, or costly.” (Murphy, supra, 46 Cal.4th at p. 164.) “As was said in the very early California case of Kripp v. Curtis (1886) 71 Cal. 62, 65, and consistently followed since that date: ‘The right of way from necessity must be in fact what the term naturally imports, and cannot exist except in cases of strict necessity. It will not exist where a man can get to his property through his own land. That the way over his own land is too steep or too narrow, or that other and like difficulties exist, does not alter the case, and it is only where there is no way through his own land that a grantee can claim a right over that of his grantor. It must also appear that the grantee has no other way.’ [Citation.]” (Horowitz v. Noble (1978) 79 Cal.App.3d 120, 131, fn. 4.) Stated more simply, a way of necessity exists only “ when the claimed way constitutes the only access to the claimant’s property.” (Roemer v. Pappas (1988) 203 Cal.App.3d 201, 206 [questioned on other grounds as the result of superseding statute, Murphy, supra, 46 Cal.4th at p. 170].)
2. The trial court properly concluded that a strict standard applies to the termination of an easement by necessity
PLR concedes that an easement by necessity is established only if the party claiming the easement demonstrates that it is strictly necessary to provide access to its property. However, PLR contends that, once established, an easement by necessity remains in existence until the dominant tenement obtains “reasonable” or “adequate” alternative access. In effect, PLR argues that the standard applicable to the termination of easements by necessity is the same standard that applies to the creation of implied easements, which requires a showing that “‘the easement is reasonably necessary to the use and benefit of the quasi-dominant tenement.’ [Citation.]” (Muzzi v. Bel Air Mart (2009) 171 Cal.App.4th 456, 467.) Unlike the strict necessity element applicable to easements by necessity, in cases of implied easements, “[t]he test of necessity is whether the party claiming the right can, at reasonable cost, create a substitute on his own estate.” (Navarro v. Paulley (1944) 66 Cal.App.2d 827, 830; Leonard, supra, 110 Cal.App.3d at pp. 272-273 [distinguishing “the ‘reasonable’ necessity... requirement of an implied easement, from the ‘strict’ necessity... element of an easement or way of necessity”].)
To establish an implied easement, the moving party must show that “‘at the time of conveyance of the property, the following conditions exist: 1) the owner of the 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.’ [Citation.]” (Muzzi v. Bel Air Mart (2009) 171 Cal.App.4th 456, 467.)
A review of the relevant case law demonstrates that the trial court correctly concluded that a standard of strict necessity, rather than one of reasonable necessity, applies to the termination of easements by necessity.
a. California case law regarding the termination of easements by necessity
California courts have consistently held that an easement by necessity terminates “when it ceases to be absolutely necessary.” (Daywalt v. Walker (1963) 217 Cal.App.2d 669, 677 (Daywalt).) The Supreme Court first articulated this principle in Kripp v. Curtis, supra, 71 Cal. 62: “[a] right of way from necessity only continues while the necessity exists. It is not enough that it continues to be a way of convenience, if it ceases to be indispensable as a means of access to the land.” (Id. at p. 65.) Twenty years after Kripp, the Supreme Court re-affirmed this principle, holding that “[u]nquestionably appellant had a way of necessity across his grantor’s ranch until a road was dedicated to his use, but when that was done his right to a way of necessity ceased, and it matters not that the old road was more convenient for his purposes. When it ceased to be indispensable the right ceased.” (Cassin v. Cole (1908) 153 Cal. 677, 679 (Cassin).)
More recent decisions have continued to follow the standard enunciated in Kripp and Cassin. For example, in Daywalt v. Walker, supra, 217 Cal.App.2d 669, the court stated that:
If a way of necessity had arisen, it would have persisted only so long as the necessity existed; if a later legally useable means of access had been created, the way of necessity would have been eliminated.... [¶] The applicable general rule is... as follows: ‘... a way of necessity ceases as soon as the necessity to use it ceases. Accordingly, a right of way of necessity ceases when the owner of the way acquires a new means of access to his estate, as where he acquires other property of his own over which he may pass, or where a public way is laid out which affords access to his premises; and the fact that a former way of necessity continues to be the most convenient way will not prevent its extinguishment when it ceases to be absolutely necessary.’
(Id. at pp. 676-677; see also Kellogg, supra, 102 Cal.App.4th at p. 804 [easement by necessity “‘“extinguish[es] when it ceases to be absolutely necessary”’”].)
In Moores v. Walsh (1995) 38 Cal.App.4th 1046 (Moores), the court applied these principles in ruling that an easement by necessity terminated as the result of a government entity’s ability to exercise eminent domain to obtain alternative access. Appellant William Moores purchased a landlocked parcel of property from the Regents of the University of California (Moores parcel). Moores alleged the existence of an easement by necessity over a portion of bordering property owned by Respondent William Walsh (Walsh parcel). The evidence showed that the Moores and Walsh parcels had previously been owned in common by the United States. In 1873, the United States granted the Moores parcel to the State of California, leaving it landlocked on all sides by federally owned land. The State later transferred the land to the Regents of the University of California, who then sold the property to Moores. The Walsh parcel, on the other hand, consisted of what had been six parcels that the United States conveyed to various private owners in the late 1800s.
Moores argued that he had satisfied the strict necessity element by demonstrating that, at the time the federal government conveyed the Moores parcel to California, the parcel was landlocked on all sides by federal land. Walsh disagreed, arguing that strict necessity was lacking because the State of California could have used eminent domain to condemn an easement over the federal government’s land. The trial court ruled that Moores had established strict necessity because the State lacked the power to exercise “eminent domain against the federal government.” (Id. at p. 1051.) However, it further ruled that any resulting easement by necessity had long since terminated:
even if a right to an easement by necessity arose in 1873, such an easement “only continues while the necessity exists.” [Citations] When the claimed servient tenement owned by the federal government was later transferred to private owners, any easement by way of necessity was extinguished because the state could then exercise its power of eminent domain. Thus, when [Moores] purchased the property from The Regents they acquired no easement over the Walsh parcel because The Regents had no easement to convey.
(Ibid.) In reaching its ruling, the court never considered how much it would cost to condemn an easement or whether such costs were reasonable in comparison to the total value of the dominant tenement. Rather, the court determined that once the State had a legal means of acquiring access, the easement by necessity immediately terminated.
The court’s analysis demonstrates that, as stated in the numerous cases cited above, an easement by necessity ends the moment the dominant tenement “‘“acquires a new means of access to his estate... and the fact that a former way of necessity continues to be the most convenient way will not prevent its extinguishment when it ceases to be absolutely necessary.”’ [Citation.]” (Kellogg, supra, 102 Cal.App.4th at p. 804.)
b. PLR has not demonstrated that California applies a reasonableness standard to the termination of easements by necessity
Despite extensive case law indicating that California applies a strict necessity standard to the termination of easements by necessity, PLR argues that other decisions have recognized that an easement by necessity terminates only if the dominant tenement acquires alternative access that is reasonable or adequate. PLR first cites Murphy v. Burch, supra, 46 Cal.4th 157, which considered whether an easement by necessity arises “when common ownership is traced back to a federal grant made without an express reservation for access.” (Id. at p. 161.) The Court provided a general overview of easements by necessity, stating, in part, that “such an easement continues only as long as the need for it exists. [Citations.] Thus, if adequate alternative access becomes available, the easement terminates...” (Id. at pp. 163-164.)
PLR attaches great significance to the Supreme Court’s use of the phrase “adequate alternative access, ” arguing that this language demonstrates that the standard applicable to the termination of an easement by necessity is reasonable necessity rather than strict necessity. However, the Court’s abbreviated statement regarding the termination of easements by necessity was not relevant to the issue decided in Murphy. Therefore, the statement does not constitute legal authority. (Johnson v. Bradley (1992) 4 Cal.4th 389, 415 [“cases are not authority for propositions not considered therein”].) Moreover, other than the single sentence PLR cites, the Court’s opinion contains no discussion regarding the specific circumstances under which an easement by necessity terminates. As a result, it is unclear whether the term “adequate” was intended to have any special meaning or whether it simply meant to restate the principles articulated in Kripp and Cassin. In any event, we are not convinced that the Supreme Court’s passing statement was meant to overrule a century of case law holding that a standard of strict necessity applies to the termination of easements by necessity.
PLR next cites a passage from Lichty v. Sickels (1983) 149 Cal.App.3d 696, in which the court stated that, “in order to operate as an extinguishment of the way [of necessity] it must appear that the outlet by means of the new way is reasonably sufficient to the beneficial enjoyment of the dominant estate.” (Id. at p. 701.) Again, PLR contends that this single passage establishes a reasonableness standard. We disagree. First, the passage PLR cites had no bearing to the actual legal issue Lichty decided, which was “whether the statute of limitations embodied in [Code of Civil Procedure] section 318 applies to an action for an easement by necessity.” (Id. at p. 698.) Therefore, as with Murphy, this isolated statement does not support PLR’s argument. (Johnson, supra, 4 Cal.4th at p. 415 [“cases are not authority for propositions not considered therein”].)
Second, an examination of the initial source of the sentence that PLR quotes from Lichty demonstrates that the passage does not reflect California law. The cited passage of Lichty is contained within a block quotation of 28 Corpus Juris Secundum, Easements, section 54. (Id. at pp. 701-702.) The C.J.S., in turn, cites Massachusetts law for the proposition that, to terminate a pre-existing easement by necessity, the newly-acquired access must be “reasonably sufficient.” (See 28 Corpus Juris Secundum, Easements, § 161, fn. 11 [citing Hart v Deering, (1916) 222 Mass. 407 [111 N.E. 37].) However, unlike California, Massachusetts recognizes the establishment of an easement by necessity in “circumstances of reasonable or absolute necessity.” (Goulding v. Cook (1996) 422 Mass. 276, 280; see also Pettingill v Porter (1864) 90 Mass. 1, 4-5 [8 Allen 1, 6] [to prove necessity, plaintiff must “prove that no other way could be conveniently made from the highway... without unreasonable labor and expense... disproportionate to the value of the property purchased”].) Given that Massachusetts follows a rule of reasonable necessity in the formation of easements by necessity, it is unsurprising that it follows a similar standard in the termination of such easements. As explained above, that is not the law in California. Therefore the passage from Lichty is insufficient to show that a standard of reasonableness applies here.
PLR also argues that numerous States apply a reasonableness standard to the termination of easements by necessity, citing cases from Massachusetts, Florida and Alabama. (See App.’s Op. Br. at pp. 7-8 [citing and discussing Hart v Deering (1916) 222 Mass. 407 [111 N.E. 37]; Enzor v. Rasberry (Fla. App. 1994) 648 So.2d 788, 792-793; Hereford v. Gingo-Morgan Park (Ala. 1989) 551 So.2d 918, 922.) However, like Massachusetts, Florida and Alabama require only reasonable, rather than strict necessity, in the formation of an easement by necessity. (See Oyler v. Gilliland (Ala. 1980) 382 So.2d 517, 519 [“If one has a way through his own land, he cannot impose a ‘way of necessity’ through his neighbor’s land, unless his own way is not reasonably adequate or its cost is prohibitive”]; Index, Inc. v. Moon (Fla. App. 1988) 534 So.2d 879, 879 [easement by necessity requires showing that “there is no other reasonable and practicable way of egress or ingress”] [citing Florida Statutes, Section 704.01 ].) Because each of the States PLR references apply a different standard to the creation of easements by necessity, they are not relevant in determining the standard that applies to the termination of such easements within this jurisdiction.
Finally, PLR argues that “the leading treatise” on easements states that “[an] easement of necessity does not end if the new access is not adequate for the productive use of the dominant estate.” (App. Op. Br. at p. 6-7 [citing and quoting Bruce & Ely, The Law of Easements and Licenses in Land, § 10:9 (2009)].) The treatise, however, does not cite any California cases in support of this proposition and does not reflect the standard applicable in this State.
c. PLR concedes it has alternative access, which terminates any easement by necessity
PLR concedes that it has a recorded easement that provides “seamless access... over Collins’ land and out to the north, to Mulholland.” Therefore, even assuming that Skinner’s 1907 conveyance created an easement by necessity, PLR has subsequently obtained an alternative “legally useable means of access.” (Daywalt, supra, 217 Cal.App.2d at p. 676.) As a result, any pre-existing easement by necessity has terminated.
PLR’s brief also implies that it would be extremely unfair to require him to build a road along the recorded easement, rather than allowing him to proceed over Collins’ property. Although the “fairness” of the outcome is irrelevant to our interpretation of the standard applicable easements by necessity, the record does not support PLR’s contention. At trial, Collins introduced evidence demonstrating that, prior to purchasing the property, PLR was provided documentation showing the recorded easement. The evidence also showed that PLR never reviewed these documents to verify what access was available to the land. Therefore, had PLR been more diligent, it would have discovered the difficulties associated with accessing this property.
DISPOSITION
The trial court’s judgment is affirmed. Respondents are awarded their costs on appeal.
We concur: PERLUSS, P. J.WOODS, J.