Roemer v. Pappas, A036735

Decision Date28 July 1988
Docket NumberNo. A036735,A036735
Citation203 Cal.App.3d 201,249 Cal.Rptr. 743
CourtCalifornia Court of Appeals Court of Appeals
PartiesThomas H. ROEMER et al., Plaintiffs and Respondents, v. James L. PAPPAS et al., Defendants and Appellants.

Philip M. Jelley, Stephen M. Judson, Fitzgerald, Abbott & Beardsley, Oakland, for defendants and appellants.

Ted Akulian, Page, Akulian, Harkins & Baker, Inc., Walnut Creek, for plaintiffs and respondents.

ANDERSON, Presiding Justice.

Defendants James L. and Alice Pappas appeal from a judgment establishing a right-of-way by necessity across their property.

I. Facts and Procedural History

The property which is the subject of this suit consists of two adjoining parcels of land, the Highland Court parcel (Highland parcel) and the Roemer parcel. Dr. Thomas Clark recorded a deed to the Highland parcel on March 23, 1946. He acquired the Roemer parcel through an installment land sale contract entered by December 26, 1948, at the latest. (The contract could not be found, but it's existence is not disputed.)

On June 30, 1950, Dr. Clark sold the Highland parcel to Evelyn and Scott Sparling; this sale left the Roemer parcel landlocked. Approximately seven months later, Dr. Clark acquired the deed (i.e., legal title) to the now landlocked Roemer parcel (on Feb. 26, 1951); on January 22, 1959, he transferred the Roemer parcel to his daughter and grandson, Georgia C. and Thomas H. Roemer, the plaintiffs herein.

The Roemers had several casual discussions with the Sparlings concerning access to public roads over the Highland parcel, and at one point they hired an attorney to assist them; his services were discontinued when Mr. Sparling assured them that they could work something out without legal assistance. However, nothing was ever done to secure an easement for the benefit of the Roemer parcel over the Highland parcel. In 1982 the Sparlings sold a portion of the Highland parcel to the Pappases who were advised of the Roemers' possible claim to an easement; they executed a written agreement to hold Mrs. Sparling harmless from any such claim.

Ultimately, to secure access the Roemers brought this action to quiet title in an easement by way of necessity against both the Pappases and the widowed Mrs. Sparling; they dismissed Mrs. Sparling as a party approximately two years before trial. The trial court found for the Roemers and granted them a way of necessity over the Pappases' property.

On appeal defendants challenge the judgment on the following grounds: (1) An easement by necessity cannot have arisen, because the putative common owner (Dr. Clark) held only an equitable title to the dominant tenement when the alleged necessity arose. (2) The common owner lacked the intent to retain an easement. (3) The trial court erroneously rejected the defenses of unclean hands and "balancing of the equities." (4) The trial court erred in locating the easement on defendants' parcel rather than on an adjacent parcel. (5) Plaintiffs should be required to compensate defendants for the value of the property taken.

We reject each of these contentions and affirm the judgment.

II. A Right-of-Way by Necessity has been Established
A. Common Ownership

The defendants first argue that the plaintiffs are not entitled to an easement by way of necessity because there never existed the requisite common ownership of the Highland and Roemer parcels for this doctrine to apply. They argue that the equitable title held by Dr. Clark to the Roemer parcel was not sufficient to encumber the Highland parcel with a way of necessity when he sold it.

" 'A way of necessity is an easement arising from an implied grant or implied reservation; it is of common-law origin and is supported by the rule of sound public policy that lands should not be rendered unfit for occupancy or successful cultivation. Such a way is the result of the application of the presumption that whenever a party conveys property, he conveys whatever is necessary for the beneficial use of that property and retains whatever is necessary for the beneficial use of land he still possesses....' " (Daywalt v. Walker (1963) 217 Cal.App.2d 669, 672-673, 31 Cal.Rptr. 899.) The philosophy behind this presumption is that the demands of our society prevent any man-made efforts to hold land in perpetual idleness as would result if it were cut off from all access by being completely surrounded by lands privately owned. (Reese v. Borghi (1963) 216 Cal.App.2d 324, 331, 30 Cal.Rptr. 868.)

A preliminary requirement to establishing a way of necessity is that the dominant and servient tenements be under the same ownership at the time of the conveyance giving rise to the necessity. (Reese v. Borghi, supra, 216 Cal.App.2d at pp. 332-333, 30 Cal.Rptr. 868.) Dr. Clark bought the Roemer parcel under an installment land sale contract, whereby the seller, the Moraga Company, retained legal title to the property until the final payment was made, at which point legal title was conveyed to him. Defendants admit that Clark held equitable title to the Roemer parcel when he sold the Highland parcel to the Sparlings. They contend that because Clark did not have legal title, he was not a common grantor for purposes of application of the doctrine of way of necessity. While this appears to be a case of first impression, we find the distinction without significance.

Under an installment land contract, the buyer agrees to make payments over time and the seller agrees to convey legal title to the buyer at some future date. "During the term of the contract the [buyer] acquires an 'equity ownership' in the property." (1 Miller & Starr, Current Law of Cal.Real Estate (rev. ed. 1975) § 2:32, pp. 260-261.) The seller conveys "his equitable interest in the property" (Tucker v. Lassen Sav. & Loan Assn. (1974) 12 Cal.3d 629, 637, 116 Cal.Rptr. 633, 526 P.2d 1169), retaining only "naked legal title" as security (Estate of Reid (1938) 26 Cal.App.2d 362, 367, 79 P.2d 451). Equity "considers the purchaser to be the owner of the land," and the seller is said to have "no greater rights than he would possess if he had conveyed the land and taken back a mortgage." (Elliott v. McCombs (1941) 17 Cal.2d 23, 31, 109 P.2d 329.) The buyer's interest is subject to property tax (Eisley v. Mohan (1948) 31 Cal.2d 637, 643, 192 P.2d 5), and the buyer will receive title free and clear, as against the sellers' judgment creditors, upon making the final payment under the contract (1 Miller & Starr, supra, § 2:34, p. 268). In sum, the buyer is generally deemed the "owner" notwithstanding the retention of legal title by the seller. (See Elliott v. McCombs, supra, 17 Cal.2d at p. 31, 109 P.2d 329 [buyer "is for all purposes the owner"].) Here, as the trial court correctly observed, Dr. Clark as purchaser had taken possession of the property and paid taxes thereon; the seller retained legal title for security and Clark was for all purposes, the owner.

The significance of purchasing real property under an installment land sale contract as compared to buying property outright and securing the loan for that purchase with a deed of trust lies in the remedy for breach of the agreement--an action for breach of contract in the former case and foreclosure on the deed of trust in the latter. We see no reason to deny respondents the benefit of the strong public policy favoring ways of necessity simply because the common grantor (Clark) employed different means in purchasing the Highland and Roemer parcels.

B. Existence of Necessity

To establish a right to a way of necessity, strict necessity must exist; that is, when the claimed way constitutes the only access to the claimant's property. (Lichty v. Sickels (1983) 149 Cal.App.3d 696, 699, 197 Cal.Rptr. 137; Reese v. Borghi, supra, 216 Cal.App.2d at p. 332, 30 Cal.Rptr. 868.) While evidence was presented that respondents had contacted the owner of property abutting his on the other side of the Highland parcel and been denied access, the trial court correctly concluded that such attempt is not a prerequisite for establishing an easement by way of necessity: "Plaintiffs' common law right to seek a right-of-way of necessity is not affected by the fact that they could have a right-of-way by condemnation [citations]." (Reese v. Borghi, supra, 216 Cal.App.2d at pp. 329-330, 30 Cal.Rptr. 868.) Just as in Reese, "the plaintiffs here were not 'driven to a proceeding to condemn the land on payment of its value,' " citing Taylor v. Warnaky (1880) 55 Cal. 350, 351. (Id., at p. 330, 30 Cal.Rptr. 868.)

However, creation of a way of necessity is founded upon the salutory public policy against permitting land to remain in perpetual idleness. (Lichty v. Sickels, supra, 149 Cal.App.2d at p. 703, 197 Cal.Rptr. 137.) And where land is not capable of being developed, ingress and egress rights will not affect that land's idleness and no necessity for an easement then arises.

Defendants contend that the court erred in sustaining plaintiffs' motion in limine to exclude evidence concerning the "difficulty of building on or developing the [plaintiffs'] property." They argue that if allowed to develop this issue, they would have established the issue of the "undevelopability" of the Roemer parcel and that strict necessity did not exist because there could be no beneficial use to which the property might be put.

Defendants may be correct that if they can establish that the Roemer parcel is incapable of development and, therefore, useless, there exists no necessity for access. Since the doctrine of easement by way of necessity rests upon the public policy that the law favors utilization of land, that policy is not furthered if the land is incapable of utilization. However, defendants confuse "incapability" of development and "difficulty" of development. Plaintiffs' motion in limine was directed to "defendant's proposed testimony concerning the difficulty of...

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