Easements – Purpose and Scope

“An easement is a nonpossessory interest in the land of another that gives its owner the right to use that property. [Citation.] As such, an easement cannot be an estate in real property. [Citation.] An easement may not be imposed upon another easement because only an estate in land may serve as the servient tenement. [Citations.]” (Carstens v. California Coastal Commission, supra, 182 Cal.App.3d at p. 287.)

“A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.” (CC 1104; see Larsson v. Grabach (2004) 121 Cal.App.4th 1147, 1151-1152.)

“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.”

(Kellogg v. Garcia (2002) 102 Cal.App.4th 796, 799.)

In Zissler v. Saville (2018) 29 Cal.App.5th 630, the easement at issue was described as “‘[p]roviding Grantee access, ingress and egress to vehicles and pedestrians over Grantors’ real property from Green Meadows Road to Grantees’ real property.’” (Id. at 635.) “‘An easement agreement is subject to the rules of interpretation that apply to contracts ... As with all contracts, the paramount goal of interpreting a writing creating an easement is to determine the intent of the parties.’” (Id.) But “[i]t is fundamental that the language of a grant of an easement determines the scope of the easement.”(Id.) “The extent of a servitude is determined by the terms of the grant.” (Id. at 639.)

In California, “a covenant against encumbrances, implied in a grant of real estate under section 1113, imposes a personal obligation on the grantor; and that where there are two or more grantors, such obligation is joint and several, and is binding on one of them, although he may have no interest in the land at the time of the execution of the grant.” (Evans v. Faught (1965) 231 Cal.App.2d 698, 712.)

Judicially Created Easements (Equitable Easement)

For well over 75 years, the California courts have had the discretionary authority to deny a landowner's request to eject a trespasser and instead force the landowner to accept damages as compensation for the judicial creation of an easement over the trespassed-upon property in the trespasser's favor, provided that the trespasser shows that

1. her trespass was 'innocent' rather than "'willful or negligent,'
2. the public or the property owner will not be 'irreparably injured' by the easement, and
3. the hardship to the trespasser from having to cease the trespass is 'greatly disproportionate to the hardship caused... by the continuance of the encroachment.

(Shoen v. Zacarias (2015) 237 Cal.App.4th 16, 19, stating: "[T]here are good reasons to require the trespasser seeking an equitable easement to prove that she will suffer greatly disproportionate hardship from denial of the easement than the presumptively heavy hardship the owner will suffer from its grant.") (Id. at 20.)

“[E]quitable easements give the trespasser ‘what is, in effect, the right of eminent domain by permitting him to occupy property owned by another.’” (Shoen v. Zacarias (2015) 237 Cal.App.4th, 20 citing Christensen v. Tucker (1952) 114 Cal.App.2d 554, 560; Donnell v. Bisso Bros. (1970) 10 Cal.App.3d 38, 46) “Such a right is in tension with the general constitutional prohibition against the taking of private property.” (Shoen v. Zacarias (2015) 237 Cal.App.4th, 20 citing U.S. Const., 5th Amend. ['[private property' 'shall' not 'be taken for public use, without just compensation']; Cal. Const., art. I, § 19(a).) “This is why courts approach the issuance of equitable easements with ‘an abundance of caution’, and resolve all doubts against their issuance.” (Shoen, supra, 237 Cal.App.4th at 20.) “It explains why additional weight is given to the owner's loss of the exclusive use of the property arising from her ownership, independent of any hardship caused by the owner's loss of specific uses in a given case.” (Id. at 21.) “And it elucidates why there must be a showing that the hardship on the trespasser be greatly disproportionate to these hardships on the owner.” (Id.) “To allow a court to reassign property rights on a lesser showing is to dilute the sanctity of property rights enshrined in our Constitutions.” (Id.)