Introduction and Facts:
Hinrichs v. Melton (certified for publication May 3, 2017) is an appellate case brought by the owner of a landlocked property requesting an easement over the property of another in order to access his property. In 1993 Leslie Hinrichs inherited two contiguous legal parcels; the southern parcel was improved with a home on it and the northern parcel was unimproved land. Hinrichs (who has primarily resided since the 1980’s in Alaska) then sold the southern property to the Asquith Family Limited Partnership (Asquith) in 1999 and has not used his remaining northern parcel other than incidentally and for pleasure. It should be noted that previously access two both parcels was by use of a private road which passed through the southern parcel. Therefore the sale of this parcel left the retained northern parcel in danger of being landlocked. When Hinrichs sold the southern property he sought to remedy this access issue by reserving an easement over a historic trail that ran over a rocky mountainous ridge. Unfortunately, the easement he thought he was reserving also ran over the property of a third party. He reserved this path, so he thought, on the basis of reservations in a 1898 federal land grant to patent to his predecessor in interest, showing an incongruence in dates as California became a state in 1850. This was before there were any other roads that could provide access to the property by means other than the ridge entrance. In addition, the Hinrich family had used the ridge to access the property in the 1960’s before the construction of roads near the adjacent properties.
Two starting points so we are on the same page. 1) What is an easement 2) What is a grant to patent?
1) Cornell University Law School defines what an easement is the most succinctly I have found.
“An easement is the grant of a nonpossessory property interest that grants the easement holder permission to use another person’s land. There are different kinds of easements. If an easement appurtenant is granted, it involves two pieces of land, where one serves as the servient tenement that bears the burden, and the other the dominant tenement, which benefits from the grant of the easement and has permission to use the servient land in some manner.”
2) A land grant from patent means that the government, being a sovereign entity (such as the King in old England or the United States Federal government), would grant or convey to the person taking possession exclusive ownership and rights to use a specifically described parcel of land. The grantee being the first private owner after land leaves government ownership. This means the land in question was originally granted to private persons after the land was first obtained by the United States from the Spanish Government. The United States first owned all rights and privileges running with the land starting in 1848 then later granted it to the new landowner subject to various conditions, exceptions and reservations along with the grant of appurtenances which run with and inure to the benefit of the landowner (such as potential privileges to use other property for access purposes).
Reading the timeline outlined by the court, Hinrichs did not have ownership of the property from patent. Hinrichs advanced an argument that in the original ‘patent grant’ there was a reservation of an easement along the spine of the mountains to obtain access to the landlocked parcel(s). The court also points out that there were no established roads at this point and the ridge at the time may have been the best most feasible way to enter the property. Indeed in the 1960’s when Hinrichs was entering and exiting the parcels, he used this mountain passage right of way.
The controversy arose when Mr. Hinrichs sold the southern parcel of land that he was formally using to gain access to a public road. At this point there are some other terms we need to know; one is easement by necessity. An easement by necessity, as the name implies, is one where the owner of land will have no way to gain access to the land but for an easement. The Court notes that an easement by necessity requires 1) a unity of ownership of the dominant and servient parcels at the time of conveyance and a strict necessity for a right of way because the conveyance left the domain parcel landlocked on sale. This means that the ‘dominant’ parcel is the landlocked parcel and will be the one being serviced by the easement. The servient parcel is the one that will be servicing the dominant tenement. Really, what is being said is that equity requires that the parcel being sold thereby land-locking another parcel will be found in law to have an easement on it in order to continue access to the landlocked parcel. This is a principle of law that has been in existence since medieval England. This being the case, Hinrichs has been granted an easement in order to access the land.
As noted, Hinrich has access to his land through an easement by necessity other than the ridge passage. In a case titled Linthicum v. Butterfield from 2009, the court articulated that the requirements for an equitable easement are fulfilled when a person or party has uses the property of another for such a length of time that, except for the non-recordation of the easement, the easement exists in fact and in law. This allows a quiet title action to be brought making the easement appear on title of the property from the point of recordation. The point of the court noting this is that the Hinrich has a method of accessing his property both in law in the case of the easement by necessity and an easement using equitable theories from using the southern parcel for access. One of Hinrichs arguments is that he does not need the easement going over the southern parcel that the court granted, because he had reserved an easement over the mountains for passage. The courts outline in granting an easement that there are two tests that must be used to assess fairness and equity. The rule being that the trial court may grant an equitable easement where the hardship to the party seeking the easement is greatly disproportionate to the hardship caused to the servient owner over whose property the easement is granted. This is tested by 1) the court considering whether the need for the easement is the result of the willful act of the party seeking the easement 2) The court considering should also consider whether the servient property owner will suffer irreparable injury by the easement.
You see the court had granted an easement using the necessity and equitable easement theories that crossed over the property of the Melton’s. The Melton’s are property owners of a third abutting parcel where Hinrichs would only have to cross for a short span across their property. Since the original land grant and since the time that the Hinrichs had crossed the ridge, a road was constructed that would service the Hinrichs property with only a short passage over the property of the Melton’s. Here the court reasoned that the easement along the ridge of the mountain had been abandoned noting that an easement can be extinguished by adverse possession. A fourth party had constructed fence blocking the mountain ridge passage several years prior.
Adverse possession in California is where another takes 1) actual possession of the property under circumstances as to constitute reasonable notice to the owner, 2) possession that is hostile to the owner’s title under claim of right or color of title. 3) Continuous and uninterrupted possession for five years, and 4) the payment of all taxes assessed on the property. In effect the adverse possessor must take control of the property and treat it as his/her own for such an amount of time that the property becomes theirs with full knowledge of the rightful owner of that fact. This is important because the facts of the case show that a fourth party had put up fences on the mountain ridge line and excluded Hinrichs from use of the ridge trail. There are also facts articulated that show that Mr. Hinrichs had knowledge of this adverse possession and did nothing to stop it for longer than the statutory period. This brings up a brief discussion on taxes. As noted above, an easement is not a possessory interest in land, it is the right to use the land for limited purpose, and in the case of an easement for access it is the ability to use the route to access land. Therefore, in this case the landowner over which the easement runs meets the burden of payment of taxes by simply paying their property taxes.
The court held that, because the fourth party had validly adversely possessed the ridge top easement and excluded Mr. Hinrichs from it for the statutory period, Hinrichs no longer had an easement across the top of the mountain. In addition the court also noted that the excepting of an easement at patent does not necessarily guarantee a title-reserved or perfected easement right to access the property. Real Property law is a function of State control and as such there is no authority to show that the Federal exception of the easement should control when a less onerous means for access to the property exists. It is also noted that the issue of access had changed over the decades and the non-use of the easement makes the easement no longer valid. In real property law, if an easement is not used, by conduct it can be abandoned and the owner of the easement no longer has access rights over it, this is of course if the landowner has another means of access as Hinrich did here.
The court also found in their decision that the mountain ridge trail had been adversely possessed and that because Hinrichs had another method to obtain access to his property he no longer was able to say that it was impossible to adversely posses a easement by necessity. The court outlined that an easement that was the result of necessity cannot be adversely possessed, as long as the necessity continued. When the easement was granted by equity or conduct it could be extinguished by adverse possession.
- If you have an easement be sure to exercise your right to use it often in order for it to continue to vest in you.
- Always be aware that land use and ownership changes affect the way you will be seen to have access to your property.
- The court notes that the property owner does not get to deicide the most convenient way for the easement to run. The court states that just because the easement is not the most direct, it still alleviates the necessity requirement of an easement by necessity.
- Make regularly inspections of your property and its boundaries and make written protest to those that are excluding you from known and defined passages to and from your property, and/or are using your property against your interests.
- Never assume that just because we used the property this way in the past that you can use it that way forever. The courts require an adequate inspection of the property as a responsibility of ownership.
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Dan Knight is principal at Dan Knight Construction & Plumbing and The Law Office of Daniel J. Knight. He is a third generation building contractor, attorney, real estate broker, construction management lecturer at Cal Poly State University, Lead Instructor at Cuesta Community College Construction Tech. Program in San Luis Obispo and a former San Luis Obispo City Planning Commissioner.
His practice focuses on construction defect expert witness engagements, construction defect representation, land use and zoning, public interest real property matters, and private real property matters.
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