Property Class Notes 4/8/04

License

This is a privilege to use the land of another. It’s not an interest in property, and it is revocable at will (this is a key distinguishing factor of this servitude). It may be granted pursuant to a contract. It’s also not subject to the statute of frauds.

Easement

There’s a Restatement definition, but it doesn’t help us very much. It’s not subject to the will of the possessor of the land. It can be created by conveyance or grant. The essential attribute of an affirmative easement is that it gives the holder of the easement the right to use the land of another by going onto that land for some limited purpose. It’s not an estate in land because it will never become possessory. It doesn’t give you the right to possess land in the typical sense.

Easements are classified in a variety of ways: they can be affirmative or negative. They can be appurtenant—meaning that the benefit of the easement benefits a person in his capacity as a landowner—or in gross, meaning that the easement benefits someone without respect to any land.

An example of an easement appurtenant is a right of way. You might give a neighbor a right of way in order to travel to a public highway. That’s of no use to the holder of the easement except as a landowner. If that person sells the property, the easement will go to the next landowner.

An example of an easement in gross would be a conservation easement. You might grant an easement to a conservation society that doesn’t own land, but just doesn’t want certain land developed. This is also the case with utility companies. The telephone company wants to run wires across your land not for the benefit of any other tract of land, but rather to provide phone service to you and all your neighbors.

The other thing to say about easements in gross and easements appurtenant is that we’re taking about the benefit of the easement. The burden of the easement is always appurtenant.

The easement requires a dominant and a servient estate. You must have both in order to have an easement (though there is such a thing as a “quasi-easement”). The dominant estate is benefited, and the servient estate is burdened by the easement.

So far, we have been talking about affirmative easements. They are so called because the owner of the dominant estate has the right to make some use of the servient estate and perform some act on that land. But you can also have negative easements that restrict what the owner of the estate can do with his own land. There are really only four of them: (1) light, (2) air, (3) water, (4) subjacent and lateral support. You have the right to receive sunlight from across your neighbor’s land (“ancient lights”). So a negative easement could be where your neighbor would agree to restrict the height of vegetation or buildings in order to preserve the right to light, air, or water. The last one is an agreement by which they promise not to excavate so close to the boundary line of the property such that the adjacent land would collapse. These were the only four negative easements. If it’s not one of these things, it must be a real covenant. That’s why we have to learn all five of these servitudes.

Creation of easements

For the next couple of classes, we’ll talk about the creation of easements. Easements can be created by an express conveyance or a grant. They constitute an interest in land and thus fall into the statute of frauds (with some exceptions). Usually, with the statute of frauds it says that certain types of instruments must be signed by the party to be charged. That is not necessarily the case with easements. They may be signed by the owner of the servient estate, but they may not be. If the dominant party is giving something to the servient party but reserving an easement for himself, at common law the servient party doesn’t have to sign.

Williard v. First Church of Christ, Scientist, Pacifica

The facts are a little tricky. Petersen is a real estate agent. Petersen agrees to sell two lots to Willard even though Petersen doesn’t own both lots. That might be underhanded, or it might have been understood by both parties that Petersen would try to get the other lot as a condition for closing the deal. McGuigan sells lot 19 to Petersen. Petersen contracts to sell lots 19 and 20 to Williard. McGuigan sells lot 20 to Petersen but reserves an easement in favor of the church for parking purposes. Then Petersen closes the deal with Willard for both lots. Basically Willard claims to have taken the land free of the easement.

When does the easement end? It ends when the church property is no longer used as a church. It’s an easement determinable!

Which estate is dominant and which is servient? The dominant estate is the church, and the servient estate is the church. Who gets the benefit of the easement? The church does. The servient estate is the one with the burden. That’s Willard. The easement is appurtenant to the church because it makes the church’s land better suited for the congregation. This means two things: any subsequent church user of the land will be entitled to the benefit of the easement. Also, if the church moves away to any other parcel so that it can no longer benefit from the easement, it will lose the easement. This easement is part of this one particular parcel of land.

If something other than a church is established on the church land, then the easement will end.

What’s the litigation about? Why does Willard claim that the easement is invalid? Lot 20 wasn’t owned by the church. When we talk about reservation in a stranger, we mean a stranger to the deed. The church was not a party between McGuigan and Petersen. Willard claims that he’s not bound by the easement because it was never validly created. What’s the basis for the rule (which persists in many jurisdictions, though not California)? In the olden days, they didn’t like deeds! That’s why we got the statute of frauds! Landowners preferred livery of seisin to deeds. The church wasn’t out there, so you couldn’t pass a clump of dirt to them representing their easement. The only way you could have a reservation in a stranger or a third party was by deed and not by livery of seisin. Early English courts didn’t like it. This court says that this is a dumb reason to keep the rule hanging around. They repeal it!

At common law, courts find exceptions and repeal a rule piecemeal. After a while, the exceptions build up and the court decides to state that the rule no longer exists. This is only the rule in California. This kind of conveyance would still cause problems in many states and just ought to be avoided, mainly to avoid needless litigation. What would be an easy way to get around this problem? What’s the difference between an exception and a reservation? An exception isn’t designed to vest in any party. What’s the purpose of an exception? Recall the different types of deeds, like warranty deeds. One thing that the grantor warrants is that the land is unencumbered. Land is unencumbered only when it doesn’t have any easements. So if you sell Lot 20 by warranty deed to Willard, you’re in breach of your warranty! So when you make an exception, you except the easement from the coverage of the warranties in your deed. But what’s a reservation? What’s a reservation to one of the parties to the transaction? Between two parties, the vendor can reserve an easement for herself. The common law viewed it as though the vendor would have conveyed an unencumbered fee simple and then the vendee grants the vendor an easement. That’s a fiction. The problem was reserving an easement in a third party.

So one way to make this work would be to grant the easement to the church then sell the land to Willard and except the easement from the warranties of the deed. Why not sell Lot 20 to the church and then have the church sell Lot 20 to Petersen and reserve the easement itself? Does that work? Sure. Either McGuigan can grant the easement first and then sell the lot subject to the already granted easement, or she can grant the church the whole lot and they can reserve an easement in favor of themselves. It’s only when we reserve an easement for a third party that we run into problems.

The court is going to get rid of the rule, but many people may have relied on this rule. The court says that if someone can show that they relied on the old rule, then it will only be applied prospectively. The court finds that Willard didn’t pay attention to the deed and didn’t rely on the old rule. Therefore, the court finds for the church. Is the court just being hard on Willard and Petersen? There’s no way to know from these facts. The court seems to have a lot of sympathy for McGuigan and the church, plus they think it’s a really bad rule.

When you except something, you’re carving it out of the coverage of your warranty. You can convey land “with full warranty except…” A reservation, on the other hand, is a way of creating an interest in yourself (or, after Willard, a third party).

Cordwell v. Smith

The facts are incredibly complicated. Cordwell owns some land that’s high up and snowy and mountainous. It’s close to an interstate, but you have to take the Latour Creek Road to get there. The defendants own land south and east of the Cordwell land. There are three roads, Mack, Ladd and Nordstrom, that cross the Cordwell property and provide the most desirable access to the defendants’ property. The defendants do have a second way of getting there that is more circuitous (French Gulch Road). The defendants use the road, Cordwell says to stop, they don’t stop, so Cordwell sues them. The defendants bought the property out of a magazine, never saw the land, and didn’t realize that it would be hard to get to in the winter. The defendants discover the access problem and try to establish that they have a right of access across the Cordwell property based on two theories which are often confused, but are separate: (1) they have access based on a preexisting, apparent, and continuous use (a quasi-easement or an easement implied from a quasi easement), or (2) they have access based on easement by necessity.

Easement from preexisting, apparent, and continuous use is basically a contract doctrine. You start out with unity of title and then you have subsequent severance. You have one big tract of land, and prior to the severance or division of the property into two parcels, it was used the way that the defendant wants to continue to use it (an apparent continuous use). If the owner of the whole big thing used a road to go between what would later be the two halves, then you have this apparent continuous use. You also must show that the easement is reasonably necessary. If this is the case, then you impute to the grantor and grantee the assumption that the use would continue because it was important. It must be important because we don’t want to restrict property for trivial things. But if it significantly affects the value of the property, then it is reasonable to assume that when the parties bargained, they assumed that the easement would continue.

The court says that the defendants lose. The court says that for some defendants, there was no unity of ownership. As to the rest of the defendants, the court finds that the road had been used as a logging road and there was nothing to indicate that the roads were to be used after the logging ceased. There was no apparent continuous use. Therefore, the court doesn’t need to get to the third issue of whether the road was reasonably necessary. It probably was, but the court doesn’t have to get to it.

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