Cushman v. Davis

• Decision Date: 08 May 1978
• Citation: 145 Cal.Rptr. 791,80 Cal.App.3d 731
• Court: California Court of Appeals Court of Appeals
• Parties: Leroy T. CUSHMAN, Plaintiff and Appellant, v. Richard D. DAVIS et al., Defendants and Respondents. Civ. 41178.

Page 791

145 Cal.Rptr. 791

80 Cal.App.3d 731

Leroy T. CUSHMAN, Plaintiff and Appellant, v. Richard D. DAVIS et al., Defendants and Respondents.

Civ. 41178.

Court of Appeal, First District, Division 3, California.

May 8, 1978.

Little, Evans, Zoller, White, Dok, Daiker & Matteoni by Norman E. Matteoni, San Jose, Harry D. Miller, Louis S. Weller, Miller, Starr & Regalia, Oakland, for plaintiff and appellant.

Hays, Sanford & Latta, Inc., Palo Alto, for defendants and respondents.

JENKINS, Associate Justice. ^*

This is a classic horn-book case. Concepts of easements "appurtenant" or "in gross", and "dominant" versus "servient" tenements, which were mystifying in law school, the bane of bar examinations, and buried during long legal and judicial careers, now surface.

A (appellant) owner of Blackacre since 1976, seeks to subdivide his 16-acre parcel and obtain access by a road across Whiteacre (owned by B (respondents)) to a public street. A's predecessor in title C (Murphy) had used the road only ten times per year five each in February and July to bring in equipment for spraying and picking in his apricot orchard. B's predecessor in title D (Anderson) had in 1947 carved out Whiteacre from a larger parcel, Greenacre, reserving the road easement now being sought by A. By deed, describing the easement as appurtenant, reservation was granted by D to a landowner adjacent to Greenacre, E (Davies). In 1967, Western Title became titleholder of the balance of Greenacre, and in 1976 granted A an easement across its property, and across B's property.

The road, improved and maintained by B, E and his successors, is used by them for access to and from their single family residences. A, and a few others, have used the road from time to time for sightseeing, as a lovers lane, access to a water tank, etc. B had put up signs that it was a private road and would frequently tell people to leave, although no chains were ever placed to obstruct passage.

A now seeks to quiet title to an easement for residential purposes for his subdividees, and B strenuously objects. A appeals a lower court decision giving only a limited right similar to that of his predecessors in title, i. e., five times each in February and July.

What are the rights of the parties?

A's rights depend upon his establishing an easement, upon terms sufficiently broad to permit multiple residential use by his proposed subdividees. An easement may be appurtenant or in gross. It is appurtenant when it is attached to the land of the owner, which is the dominant tenement, and burdens the land of another, the servient tenement. (3 Witkin, Summary of Calif.Law (8th Ed. 1973), Real Property, § 341, pp. 2041-2042.) An easement in gross is not attached to any particular land, but belongs to a person individually. (Witkin, supra.) Easements may be created by express words, by grant or reservation, usually by deed, by implication (Civil Code, section 1104) (usually involving division of land); by necessity (3 Powell on Real Property, § 410) and by prescription (open and notorious use, continuous, hostile to owner, exclusive and under claim of right). (Witkin, supra, p. 2059.)

Easements are presumed appurtenant unless there is clear evidence to the contrary. (Elliott v. McCombs (1941) 17 Cal.2d 23, 29, 109 P.2d 329.) Although a grantor may reserve interest in property to a stranger to grantor's title (Willard v. First Church of Christ Scientist (1972) 7 Cal.3d 473, 102 Cal.Rptr. 739, 498 P.2d 987) that intent must be clearly shown, which may be done by extrinsic evidence. (Cont. Baking Co. v. Katz (1968) 68 Cal.2d 512, 523, 67 Cal.Rptr. 761, 439 P.2d 889.) The record here reveals no facts which indicate D intended his reservation of rights to be personal; he retained large portions of Greenacre, which he subsequently granted to others; his grant to E described the easement as "appurtenant". The burden of overcoming the inference of appurtenancy is not met, and D did not have an easement in gross which his successor Western Title could deed to A.

But A does have an appurtenant easement, not by deed but by prescription. His predecessor D used the roadway openly and notoriously, hostile to its owners, for more than five years, under claim of right. (Pacific Gas & Electric v. Crockett Land and Cattle Co. (1924) 70 Cal.App. 283, 233 P. 370.) That use attached to the dominant tenement, Blackacre, and burdens Whiteacre, the servient tenement. Running with the land, it passed to A upon his purchase.

There is a strict limit, however, to that use. Formerly, it was very strict, was "fixed and determined by the manner of use in which it originated . . . (and) cannot be extended or increased so as to enlarge the burden except by grant or by adverse user which has been acquiesced in . . ." (Bartholomew v. Staheli (1948) 86 Cal.App.2d 844, 850, 195 P.2d 824, 828.) That rule has been modified in Gaither v. Gaither (1958) 165 Cal.App.2d 782, 332 P.2d 436, if the change is one of degree, not kind. A further expansion of the strict doctrine occurs by the adoption of principles set out in Restatement of Property, section 479, in Hill v. Allan (1968) 259 Cal.App.2d 470, 484, 66 Cal.Rptr. 676, 686: "In ascertaining whether a particular use is permissible under an easement created by prescription there must be considered ....