Murphy v. Burch
| Decision Date | 19 November 2007 |
| Docket Number | No. A117051.,A117051. |
| Court | California Court of Appeals Court of Appeals |
| Parties | Cheryl MURPHY, Plaintiff and Respondent, v. Roger BURCH, et al., Defendants and Appellants. |
Petersen Law Offices, Thomas E. Owen, Robert C. Petersen, Fort Bragg, for Appellants.
Carter, Vannucci & Momsen, LLP, Jared G. Carter, for Respondent.
Appellants Roger and Michele Burch appeal from a judgment of the Mendocino County Superior Court which held, on facts stipulated by the parties, that an easement by necessity existed across property owned by them in favor of plaintiff and respondent Cheryl Murphy (as trustee of the "Murphy Children Education Trust"), the owner of neighboring property which lacks access to a public road. We disagree and hence reverse.
As already noted, the parties stipulated to the facts in this case. As pertinent here, they are as follows: Prior to 1876, all of the properties involved in this case were owned by the federal government. In that year, the first of several parcels now making up the Burch property was deeded, by federal government patent,1 to one of the several predecessors in interest to the Burches. Between then and 1929, all the remaining properties now comprising the Burch property were likewise deeded to private owners by the federal government; by 1929, the Burches' predecessors in interest owned all the property the Burches presently own. The other property, the parcel now owned by respondent Murphy, was still owned by the federal government.
However, that situation changed three and a half years later, on December 28, 1932, when the federal government granted to one John Bridges, again by patent, the property that now comprises the "landlocked" four parcels making up the Murphy property. After eight prior transfers of title starting in 1933, Murphy's trust purchased the property in 1998.
At the time of the 1932 conveyance to Bridges, Murphy's predecessor in interest, the federal government's patent grant did not include any grant of an easement over the access road from that property to the nearest public road, State Highway 162. There was such an access road, but it ran across the neighboring property, then owned by the Burches' predecessor in interest. At no time in the past had there been any express grant of an easement from what is now the Murphy property over what is now the Burch property to that state highway. Nor, per the parties' stipulation submitted to the trial court, had there been an acquisition of an easement by prescription in favor of what is now the Murphy property. The Murphy property was, therefore, "landlocked" without any express or prescriptive easement across the neighboring Burch property to the state highway.
In October 2002, the Third District Court of Appeal decided Kellogg, supra, 102 Cal.App.4th 796, 125 Cal.Rptr.2d 817, a case which will be discussed in detail below. Based on, and indeed citing that decision, in 2003 respondent Murphy's counsel wrote to all the property owners along the access road requesting that they deed to her access across their property on the access road pursuant to the decision in Kellogg.2 Several of the other property owners settled this issue with Murphy out of court, but the Burches (and apparently the owners of two other parcels) declined this request. On October 15, 2004, Murphy filed the present quiet title action against them. The Burches answered that complaint and cross-complained against Murphy to quiet title to the easement; this cross-complaint was, in turn, answered by Murphy. The owners of the other two parcels named in the action settled with Murphy.
The stipulated facts were submitted to the court on April 18, 2006, and both parties thereafter submitted briefs on the issue of the existence of an easement by necessity in favor of Murphy over the Burch property. On August 7, 2006, the case was argued before the trial court, which issued its tentative decision in favor of Murphy on October 26, 2006. No statement of decision was requested or issued and, on November 29, 2006, judgment in accordance with the tentative decision was issued in favor of Murphy. The Burches filed a timely notice of appeal.
Bearing in mind the parties' stipulation to the relevant facts, the issue before us is clear: did the patent conveyances by the federal government to, first, the various predecessors in interest to the Burch appellants and, three and a half years later, to the predecessor in interest to respondent Murphy include an easement by necessity over the former property in favor of the latter property? Equally clear is that this is purely an issue of law entitled to de novo review by us. (See, e.g., Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 437-438, 129 Cal.Rptr .2d 436, and authorities cited therein.)
The parties properly devote much of their briefs to us debating which of two recent appellate decisions (and, in some respects, how much of each) governs the outcome of this appeal. These decisions are Moores v. Walsh (1995) 38 Cal.App.4th 1046, 45 Cal.Rptr.2d 389 (Moores), a decision by our colleagues in Division Three of this court, and Kellogg, supra, 102 Cal. App.4th 796, 125 Cal.Rptr.2d 817, a decision by the Third District Court of Appeal. Both cases involved, as does the present one, parcels of major blocs of land owned in the 19th century by the federal government.
Before getting to those cases, however, a brief general outline of California law relating to easements by necessity, in cases where there was no prior federal land ownership and patent grant, is appropriate.
That law is best summarized in two decisions by other divisions of this court. The first, chronologically is Reese v. Borghi (1963) 216 Cal.App.2d 324, 332-333, 30 Cal.Rptr. 868 (Reese), where Justice Sullivan, writing for a unanimous Division One of this district, stated: "The California rule is settled that a right-of-way of necessity arises by operation of law when it is established that (1) there is a strict necessity for the right-of-way as when the claimants' property is landlocked [citations] and (2) the dominant and servient tenements were under the same ownership at the time of the conveyance giving rise to the necessity."
This statement was elaborated upon in a decision by then-Presiding Justice Anderson of Division Four of this district, Roemer v. Pappas (1988) 203 Cal.App.3d 201, 249 Cal.Rptr. 743 (Roemer). There, the court affirmed a judgment of the Contra Costa County Superior Court that an easement of necessity had been created over the land of the appellant because of the satisfaction of the two requirements for such an easement set forth by the Reese court, namely, prior common ownership and the existence of necessity. Regarding the first requirement, the Roemer court stated: "` ' (Roemer, supra, at p. 205, 249 Cal.Rptr. 743.)
Regarding the requirement of necessity, the Roemer court continued: (Roemer, supra, 203 Cal.App.3d at p. 206, 249 Cal.Rptr. 743, citing Reese, supra, 216 Cal.App.2d at p. 332, 30 Cal.Rptr. 868.)3
The question at issue in this appeal is the extent to which these rules regarding easements of necessity apply to properties conveyed, whether simultaneously or at different times, by the federal government. The United States Supreme Court addressed this question in Leo Sheep Co. v. United States (1979) 440 U.S. 668, 99 S.Ct. 1403, 59 L,Ed.2d 677 (Leo Sheep.) There it was the federal government that, rather remarkably, was claiming an easement of necessity across Wyoming properties once owned by it, but later deeded to the Union Pacific Railroad in connection with the construction of that railroad in the mid-19th century. Two landowners of those formerly-Union Pacific properties claimed that the federal government was exceeding its powers in building a road across their lands to allow the public to reach a particular reservoir. The government countered that it had the power to do so based, among other things, on the easement by necessity doctrine.
The Supreme Court, in a unanimous decision written by Justice (later Chief Justice) Rehnquist, ruled in favor of the property owners and against the federal government. Regarding the "easement by necessity" claim of the government, the court held: ...
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