Moylan v. Dykes

• Decision Date: 27 May 1986
• Court: California Court of Appeals Court of Appeals
• Parties: James MOYLAN, et al., Plaintiffs, Cross-Defendants and Respondents, v. David and Barbara DYKES, Defendants, Cross-Complainants and Appellants. Civ. 24189.

Page 673

226 Cal.Rptr. 673

181 Cal.App.3d 561

James MOYLAN, et al., Plaintiffs, Cross-Defendants and Respondents, v. David and Barbara DYKES, Defendants, Cross-Complainants and Appellants.

Civ. 24189.

Court of Appeal, Third District, California.

May 27, 1986.

Review Denied Aug. 13, 1986.

Robert Eli, Inc., Nevada City, for defendants, cross-complainants and appellants.

Berliner & Spiller, Steven T. Spiller, and Holly Kraemer, Nevada City, for plaintiffs, cross-defendants and respondents.

SIMS, Associate Justice.

In this case we conclude a road easement reserved in a deed may be appurtenant to a parcel of real property the easement does not touch.

Defendants David and Barbara Dykes appeal from a judgment enjoining them from interfering with plaintiffs James Moylan, Eldred Koehn-Hoffman, and Caroline Niemann's use of an easement across their (defendants') land. The judgment also awarded each plaintiff $3,975 plus interest as damages for defendants' obstruction of the easement.

Defendants contend: (1) plaintiffs do not have an easement on their land based on record title; (2) defendants' motion for judgment on the pleadings should have been granted because plaintiffs' complaint alleged a gap in their legal title to the easement; (3) the easement cannot be sustained on theories of adverse possession or implication; and (4) there was no evidentiary basis for the award of damages.

We conclude plaintiffs' easement is established by record title; we need not consider theories of easement by implication or adverse possession. Defendants' other contentions are without merit. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This case involves several adjoining parcels of largely undeveloped land in the foothills of Nevada County. The land, in the vicinity of Casa Loma Road, is traversed by seasonal streams and logging roads.

All the land in question was originally owned by John Antonowitsch. In June of 1967 Antonowitsch sold a portion of the land to Herbert Courtney. Courtney's land abutted Casa Loma Road on the north (see Fig. 1, post). In 1970 Courtney desired to sell the northern portion of his property with road access and retain a portion of his property to the south. Apparently, access to the southern portion of Courtney's property was via a road leading through Antonowitsch's parcel. Courtney testified that, to preserve his access to the southern portion of his land, he and Antonowitsch deeded each other easements for ingress, egress and utilities through their parcels. Courtney granted Antonowitsch a 9-course easement leading from Casa Loma Road to Antonowitsch's parcel; in exchange Antonowitsch granted Courtney a 4-course easement leading from the 9-course easement to the southern portion of Courtney's property. These deeds were recorded on September 15, 1970, in preparation for Courtney's sale of his northern parcels.

On September 15, 1970, following recordation of the easements, Courtney sold his northern property, known as parcels 31, 32, and 33, to defendants David and Barbara Dykes. In order to preserve his own access from Casa Loma Drive, Courtney retained in his deed to defendants a 9-course easement identical to the one he had granted Antonowitsch. The deed described the easement as "an easement 60.00 feet in width for ingress, egress and utility purposes...." The easement is not designated as appurtenant to Courtney's southern property nor designated as an easement in gross.

Courtney testified at trial that, although he had reserved the easement across the western portion of defendants' parcel for access to his property to the south, he did not recall discussing the need to reserve an easement over parcel 32 to provide access from Antonowitsch's easement to his southern parcel. Courtney explained he relied on his real estate broker to put the transaction together properly. (See Fig. 2, post.)

On January 20, 1971, Courtney sold his southern property to Jonathan Taylor. Courtney's deed to Taylor does not mention any easements. Taylor later subdivided his parcel into three parcels designated as A, B and C. (See Fig. 3, post.)

On March 12, 1971, Taylor conveyed his parcel C to plaintiff Moylan. In order to provide Moylan access to his property Taylor granted him an easement over his parcels A and B to the north. Apparently, Taylor's deed to Moylan also purported to grant Moylan an easement over defendants' parcel 32 to the north of Taylor's parcel A. However, as noted above, Courtney never reserved such an easement in his deed to defendants and defendants never granted such an easement to Taylor. Moreover, the purported easement over defendants' parcel 32 is misdescribed so that, even assuming it were valid, it would not connect to the Antonowitsch easement.

Moylan subsequently subdivided his property into parcels A, B, C, and D. (See Fig. 4, post.)

Moylan's four parcels are now referred to as parcels 59, 60, 61, and 62. Moylan conveyed parcels 59 and 61 to others; those parcels are not involved in this litigation. Taylor's parcels A and B are now owned by plaintiffs Koehn-Hoffman and Niemann. Defendants' parcel 32 is now owned by Wendy Hansen. Hansen was named as a defendant in this lawsuit but she filed a disclaimer of any interest adverse to plaintiffs' easement and judgment was entered against her establishing plaintiffs' easement. That judgment was final as of the date of trial in this case.

Defendants' sale of parcel 33 to Scott and Leblanc evidently failed, as did defendants' sale of parcel 31 to Leavitt. Defendants own parcels 31 and 33. The Antonowitsch parcel is now owned by William and Elizabeth George.

The current owners of the various parcels are indicated on Figure 5, post.

In June of 1979 Moylan, Niemann, and Koehn-Hoffman filed this action against the Dykes, the Antonowitsches, and Hansen to establish their right to use the entire easement from Casa Loma Drive to the Moylan property. The complaint was subsequently amended to substitute the Georges for the Antonowitsches. Each of the defendants filed disclaimers of any interest adverse to the easement. On January 7, 1980, judgment was entered for plaintiffs.

In June of 1980 defendants Dykes constructed a fence across the easement, obstructing its use. On June 3, 1980, the Dykes noticed a motion to vacate the judgment as to them pursuant to Code of Civil Procedure section 473; that motion was ultimately granted. As to the remaining defendants the judgment is now final.

In its present form, the litigation concerns only defendants Dykes' right to restrict use of the 9-course easement across their own land, parcels 31 and 33. On February 15, 1983, plaintiffs filed a supplemental complaint for damages for loss of use of the easement.

In its statement of decision (incorporating by reference its tentative decision) the trial court considered Courtney's reservation of the 9-course easement in his deed to defendants. The trial court found the easement was intended to be appurtenant to Courtney's southern property including that now owned by plaintiffs. The trial court noted that the easement as reflected in the Courtney-Dykes deed did not physically touch Courtney's southern property; however, it determined that fact was immaterial. The trial court concluded plaintiffs' easement was established by record title; it did not consider whether the easement could be established by adverse possession or by implication. Judgment was entered as noted above and defendants timely filed notice of appeal.

DISCUSSION

I

Defendants' principal contention is that the trial court erred in concluding plaintiffs' right to use the 9-course easement across defendants' land was established by record title. We conclude the trial court was correct.

A

We begin with some fundamentals of the law of easements. An easement is an incorporeal interest in the land of another which gives its owner the right to use another's property or to prevent the use of property by its owner. (3 Miller & Starr, Current Law of Cal. Real Estate (Rev.Ed.1977) Easements, § 18:4, p. 252.) The land to which the easement attaches is called the dominant tenement; the land to which the burden or servitude is imposed is called the servient tenement. (Civ.Code, § 803; Cushman v. Davis (1978) 80 Cal.App.3d 731, 735, 145 Cal.Rptr. 791; 3 Miller & Starr, op. cit. supra, § 18:5, p. 254.) ¹

Easements are classified as appurtenant or in gross. ( § 801; Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 521, 67 Cal.Rptr. 761, 439 P.2d 889.) The basic effect of the distinction between easements appurtenant and easements in gross arises when the owner of an easement conveys his property. The conveyance of the dominant tenement transfers all appurtenant easements to the grantee, even though the easements are not specifically mentioned in the deed. ( §§ 1084, 1104; 3 Miller & Starr, op. cit. supra, § 18:5, p. 256.) An easement in gross, unlike an appurtenant easement, is merely a personal right to use the land of another. (3 Miller & Starr, op cit. supra, § 18:6, p. 257.) It does not pass with the land.

Generally, the determination of whether an easement is appurtenant or in gross is made by reference to the instrument creating it. (3 Miller & Starr, op. cit. supra, § 18:7, p. 258.) However, in this case, as often happens, the instrument itself (the Courtney-Dykes deed) is deficient because it fails to specify whether the easement is in gross or appurtenant and fails to identify a dominant tenement. (See id., at p. 258.) Moreover, the character of the easement as appurtenant or in gross cannot be determined by the nature of the rights granted because easements for right of way ("ingress and egress") may be either appurtenant or in gross. (Ibid.)

When a court is called upon to determine whether an easement is appurtenant or in gross, it applies the general rules relating to the interpretation of deeds. (3 Miller & Starr, op. cit. supra, § 18:7, p. 258.) In most cases, "Grants are to...