Leonard v. HaydonLeonard v. Haydon
Opinion
Plaintiffs and cross-defendants (the Leonards) and defendants and cross-complainants (the Haydons) own residences on adjoining parcels of real property in an area in the Santa Monica Mountains of Los Angeles County known as Rustic Canyon. The vicinity of both properties is reached by a private road from Sunset Boulevard (Evans Road) to which both parties have access and which is not in dispute. Their controversy involves a driveway from or extension of Evans Road which leads to the two residences and which, except for a turnaround at the end which is partly on each property, is entirely on the Leonards’ land. The Leonards, in their complaint, sought to quiet title to the driveway, a declaration that the Haydons have no interest in it and damages for trespass. The Haydons, in their cross-complaint, sought a declaration of their rights to an easement over the driveway and to quiet title to it. A jury trial resulted in a special verdict that the Haydons did not have an implied easement over the driveway, that they used it with the permission of the Leonards, which had been terminated, and that the Leonards had suffered $500 damages from wrongful use by the driveway by the Haydons. A judgment conforming to the special verdict was entered, from which the Haydons appeal.
The Haydons’ motions for a new trial or for judgment notwithstanding the verdict was denied and on their appeal from the judgment they ask us to review the correctness of these rulings, which we may do.
The case was tried and is argued on appeal on the Haydons’ contention that they had an implied easement in the driveway as opposed to a revocable license. As noted above, the jury found against this contention.
Civil Code section 1104 provides: “A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.”
Fristoe
v.
Drapeau
(1950)
The parties stipulated that Ira and Marjorie Hilgers purchased both properties on April 30, 1945, and that on February 7, 1947, they transferred the lot now owned by the Leonards to Mr. and Mrs. Morgan Evans and the lot now owned by the Haydons to Mr. and Mrs. Bernard Evans. Thus there is no dispute that the property was at one time in common ownership and then divided.
The evidence was conflicting as to whether there was such continued and obvious use of the driveway before division of the properties as to
On the other hand, Emil Sandmeier, who had been from 1931 through 1936 and again from 1940 to 1945 an employee of the family of Will Rogers, a previous owner of the property, testified that Will Rogers had horse sheds in the area that is now the Leonard and Hay-don properties and that in 1934 a road was built up the canyon to the horse sheds and beyond to a cabin. He was unable to say whether the road had the same alignment as the present road to the Leonard and Haydon properties. Charles Mackintosh, a structural engineer, examined three aerial photographs bearing dates in 1940, 1946, and 1971 and gave his opinion that each photograph showed a road in the same location as the driveway on the Leonard property.
There was substantial evidence before the jury that before the separation of title there had not been such long continued and obvious use of the driveway area as to show that it was meant to be permanent and the judgment, and the denial of the motions for judgment notwithstanding the verdict and for new trial, cannot be successfully attacked on that basis. Counsel for the Haydons asserts that the trial court, in ruling on his motions, agreed that there was no conflict in the evidence as to the
Appellants further contend that “the trial court was misled by the Leonards into applying an aberrational standard of reasonable necessity.” The jury was instructed as to the required elements of an implied easement as set forth above, including “[t]he easement must be reasonably necessary for use of the Haydons’ property.” It was further instructed: “In determining whether the easement is reasonably necessary to the use and benefit of the Haydons, you can consider whether the Haydons can at a reasonable cost create a substitute on their own property.” Appellants assert this instruction was based on
Navarro
v.
Paulley
(1944)
Taking the latter point first, the jury was not instructed that the cost of an alternative means of access was determinative—only that it was a factor they could consider in respect of the reasonable necessity of the easement. Turning again to the trial judge’s comments at the hearing of appellants’ motions after judgment, he stated that there was a conflict in the evidence as to whether the road was reasonably necessary, that there was some dispute about the cost of another road, indicated that the dollar cost of an alternate road and the fact that there was a place to put in such a road were relevant to the jury’s inquiry and that he should not overturn the jury’s findings unless it clearly should have reached a different result and called for letter briefs. Appellants’ contention that the trial judge considered the cost issue to be determinative is not supported by the record.
In
Navarro
v.
Paulley, supra,
It pointed out that a requirement for an implied easement is that the easement must be reasonably necessary to the beneficial enjoyment of the land granted and that this is a question of fact for the trial court, explaining: “In the development of the law of easements in this country, for a time our courts held that an easement by implication might not pass unless it was strictly and absolutely necessary to the enjoyment of the tenement granted. (57 Am.Dec. 762.) So, where a grantor having built two houses on adjacent lots, with a chimney between them resting wholly on one of the lots, conveyed the other lot, it was held that no easement to the chimney passed to prevent the grantor tearing it down, because it was not strictly necessary.
(Buss
v.
Dyer,
“But the better and now prevailing view is that in order to survive the severance the easement must be reasonably necessary. This is the rule in California. A statement of the law, with citation of authorities from the several states, may be found in 28 Corpus Juris Secundum 692, as follows:
“‘An easement corresponding to a use to which one part of the property has been subjected for the benefit of another part will not be implied on a severance of ownership unless the use is necessary for the enjoyment of the dominant tenement; mere convenience is insufficient. Some courts require that the use be strictly necessary; but the weight of authority sustains a rule less exacting than that of strict and indispensable necessity, namely, that the degree of necessity is such merely as renders the easement necessary for the convenient and comfortable enjoyment of the property as it existed when the severance was made. The test of necessity is whether the party claiming the right can, at reasonable cost, create a substitute on his own estate. It has been held that the rules as to ways of necessity should be applied.’” (Id. at pp. 829-830.)
“Also in this case, the fact should not be overlooked that it is conceded by plaintiffs that they took their property subject to the right of the owners of the defendants’ property to use the driveway and the 6 1/2 feet of width thereof on plaintiffs’ land; also that defendants have no other means of access to the rear of their premises.”
(Rees
v.
Drinning, supra,
We perceive nothing in the holding of the
Rees
case that is in conflict with
Navarro
or which compels reversal of the instant case. It merely held that evidence that a driveway could be constructed somewhere else
“‘A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.’
“Under the code section the courts of this state have set forth certain elements necessary to create an easement by implied grant. The following things are required: (1) A separation of the title; (2) before the separation takes place the use which gives rise to the easement shall have been so long continued and so obvious as to show that it was intended to be permanent; and (3) the easement shall be reasonably necessary to the beneficial enjoyment of the land granted. (Beem v. Reichman,36 Cal.App. 258 , 263 and 264. . .; Grimmesey v. Kirtlan,93 Cal.App. 658 , 664. . . .) We are referring here to an easement implied in the grant of severance of the dominant and servient estates as outlined in section 1104 of the Civil Code, as distinguished from a necessary easement, or ‘way of necessity.’ As to the former the authorities uniformly hold to the three essentials above noted when that question has been directly presented. There is little, if any, difference between the expression ‘reasonably necessary to the beneficial enjoyment of the land granted’ and the expression found in the code section ‘for the benefit thereof.’ In the case here the respondents successfully proved that the easement claimed was ‘reasonably necessary to the beneficial enjoyment of the land granted’ and thus met the code requirement that it was ‘for the benefit thereof.’ They were not required to show that the drain was the only method possible to carry excess water from their land, or that, because of such absolute necessity, the grantor must have been deemed to have intended to include the right of way in the grant. Relying upon the showing of the apparent and obvious use of the drain for a long period of time preceding the severance, they met the terms of the statute by the proof that it was ‘reasonably’ necessary (not absolutely necessary, nor merely convenient) for the beneficial use of the land granted. The distinction between an easement by implication arising out of apparent and continued use, and an easement by necessity is clearly shown in 17 Am.Jur. 948, 959; 28 C.J.S. 691, 695; 9 Cal.Jur. 957, 967-969.
“The undisputed facts of the instant case show that all of these required elements are present. (1) Appellant owned both lots until 1937 when she separated title by transferring lot 18 to respondents’ predecessor in interest. (2) In 1932 appellant graded and cemented the backyard of lot 18 so that the surface and rain water would flow through the opening in the curbing onto lot 19. This construction was of a permanent character and the drainage system was used continuously by appellant for five years prior to the separation of title. Such long continued use plus the fact that the grading and the opening in the curb were obvious and visible at all times indicates unquestionably appellant’s intention that it should be permanent. (3) The drainage system involved had been used for a period of seven and one-half years, and the evidence shows that when appellant closed the opening in the curb the water accumulated in the backyard of lot 18 thereby causing the yard and its facilities to become less accessible to ordinary use. We must conclude, therefore, that the easement was necessary for the reasonable enjoyment of the parcel sold in the form which it assumed at the time of the transfer. (Grimmesey v. Kirtlan, supra.)” (49 Cal.App.2d at pp. 322-323.)
We observe nothing in
Fischer,
or in
Rees
either for that matter, to indicate that the cost of an alternate to the use claimed to give rise to an easement may not be taken into consideration in determining reasonable necessity. It will be observed that the language upon which appellants rely, as well as somewhat comparable language in a text
1
which they cite to us, appears in the context of distinguishing the “rea
Returning to appellant’s contention that
Navarro
is “aberrant,” our investigation discloses that it has been cited without criticism and with apparent approval once by the Supreme Court
(Owsley
v.
Hamner
(1951)
Further, in discussing implied easements and the requirement of necessity, the Restatement of the Law of Property (1944) states in section 476, comment g: “If the necessity of an easement is such that without it the land cannot be effectively used, nothing less than explicit language in the conveyance negating the creation of the easement will prevent its implication. If some use may be made, or if an alternative to the easement which might otherwise be implied can be secured, the implication becomes subject to control by other circumstances. Thus, the expense and effort necessary to secure a substitute by the conveyor may not be so disproportionate but that it may be assumed he was intended to suffer it, while like expense to the conveyee may warrant the inference that he was not intended to suffer it. While necessity alone justifies the inference of an easement without regard to other circumstances if the land cannot be used without it, as necessity decreases a point is reached where necessity without reference to any prior use may justify the implication of an easement in favor of the conveyee though a like necessity would not justify an implication in favor of the conveyor. Eventually, without its being possible to draw any precise line, necessity will not be sufficiently great to justify the implication except as it is strengthened by reference to a prior use of the land. In the different situations that may appear, a constantly decreasing degree of necessity will require a constantly increasing clearness of implication from the nature of the prior use. Accordingly,
no precise definition of necessity can be made."
(Italics added.) Whatever may be the proper application in other cases
The question of whether an easement by implication arose is a question of fact for the determination of the trier of fact in the trial court.
(McCarty
v.
Walton
(1963)
The judgment is affirmed, respondents to recover their costs on appeal.
Kaus, P. J., and Stephens, J., concurred.
A petition for a rehearing was denied October 15, 1980, and the opinion was modified to read as printed above. Appellants’ petition for a hearing by the Supreme Court was denied November 12, 1980.
Notes
Assigned by the Chairperson of the Judicial Council.
3 Miller & Starr, Current Law of California Real Estate (rev. ed. 1977) section 18:26, page 306.
Mr. Mackintosh stated that $20,000 should be added to the cost if the City required Evans Road to be widened but Mr. Higashi expressed the understanding and opinion that this probably would not be required.