Easement Original

MILCALRE CH 15 REF Next Section
Research References
Approx. 2 pages
6 Cal. Real Est. Ch. 15 Refs. (3d ed.)
Miller and Starr California Real Estate 3D
Database updated September 2009
Harry D. Miller and Marvin B. Starr
Chapter 15. Easements

By Harry Miller, as revised in 2006 by
Kenneth Styles
Correlation Table
Research References
California Practice Guide, Real Property

Transactions, Ch. 4-B, 4:101 to 4:110
West's Key Number Digest
West's Key Number Digest, Easements 1 et

seq.
Primary Authority
Civ. Code, 662, 801 to 816, 845, 887.010 to
887.090, 1001, 1002, 1007, 1008, 1104
Code Civ. Proc., 1240.350
Gov. Code, 65870 to 65875
Sts. & Hy. Code, 8330 to 8353

A.L.R. Library
A.L.R. Index: Easements
A.L.R. Index: Prescriptive Easements
West's A.L.R. Digest,
What Constitutes, and Remedies for, Misuse of

Easement, 111 A.L.R.5th 313
Legal Encyclopedias
Cal. Jur. 3d, Easements and Licenses in Real
Property 1 to 97
Witkin, 8 Summary of California L.,

Constitutional Law 1177, 1178 (10th ed.)
Witkin, 12 Summary of California L., Real
Property 347, 348, 382 to 439 (10th ed.)
Am. Jur. 2d, Easements and Licenses in Real

Property 1 to 116
C.J.S., Easements 1 et seq.
Treatises and Practice Aids

California Civil Practice, Real Property
Litigation 12:1 to 12:47
Miller & Starr, California Real Estate Digest

3d, Easements and Licenses in Real Property
1 to 12
Trial Strategy
Proof of Extent of Easement of Way Created
by Express Grant or Reservation, 81 Am. Jur.
Proof of Facts 3d 199
Proof of Intent to Abandon Easement, 53 Am.

Jur. Proof of Facts 3d 519
EasementsExistence of Way of Necessity,

11 Am. Jur. Proof of Facts 3d 601
Establishment of Public Prescriptive Easement,

2 Am. Jur. Proof of Facts 3d 197
Establishment of Private Prescriptive

Easement, 2 Am. Jur. Proof of Facts 3d 125
Forms
7A Am. Jur. Legal Forms 2d, Easements and
Licenses in Real Property 94:1 to 94:51
Am. Jur. Pleading and Practice Forms,

Easements and Licenses 1 to 139
West's California Code Forms, Civil (4th ed.)

801 Form 1 to 815.1 Form 1, 845, 887.040
Form 1, 887.050 Form 1, 1008 Form 1
Model Codes and Restatements

Restatement Third, Property: Servitudes 1:1
et seq.
Restatement Second, Torts 188

Law Reviews and Other Periodicals
Kantor, Access to Premises and Easements:
Can the Cable Operator Come In?, 19 Hastings
Comm. & Ent. L.J. 431(Winter 1997)
2010 Thomson Reuters/West. No Claim to

Orig. U.S. Govt. Works
MILCALRE CH 15 REF
Kenneth Styles
A. Other Relationships Compared

References Correlation Table
15:1. Easement defined; profits

distinguished
West's Key Number Digest, Easements 1

to 9
Easement defined. An easement is an

incorporeal interest in the land of another
that gives its owner the right to use the
land of the other person or to prevent the
other property owner from using the
land.[FN1] An easement is an intangible
property right that does not relate to
physical objects but is instead imposed on
the servient land to benefit the dominant
tenement land.[FN2]
Case Example: Because an easement is an
incorporeal and intangible property right,
representing a limited privilege to use the
land of another, and providing the
intangible benefit of access to the
easement holder's property, defendant
owner of the servient tenement was not
entitled to a defense under a
comprehensive liability insurance policy
for claims that grading performed by
defendant interfered with plaintiffs' use of
an access easement. That plaintiffs might
recover damages for loss of use of the
easement and diminution in value of the
dominant tenement did not change the
intangible nature of the property right
allegedly violated. The insurance policy
required physical damage to tangible
property or to the insured's premises in
order for any claim to give rise to a duty to
defend or indemnify, and an alleged loss of
use of an easement was neither.[FN3]
Profit defined. A profit is an estate in real
property[FN4] and also an incorporeal
hereditament[FN5] that imposes a burden
on a servient tenement.[FN6] In contrast to
an easement, which is a right of use, a
profit gives a person the right to take either
a part of the soil, or its products, from the
land of another.[FN7]
Familiar examples of profits include the
right to take fish;[FN8] remove
timber[FN9] or crops;[FN10] or take
water,[FN11] gravel,[FN12]
minerals,[FN13] such as oil and
gas,[FN14] or geothermal resources[FN15]
from the land of another.
Distinctions between an easement and a
profit. Easements usually are distinguished
from profits because an easement merely
creates an interest in real property,[FN16]
whereas a profit creates an estate in real
property. However, this distinction is not
recognized by the code. A number of the
"easements" listed by the code include
rights that are "profits" (e.g., the right to
fish; to pasture; and to take game, wood,
water, or minerals).[FN17]
Principles equally applicable. For some
purposes, the rules with respect to
easements and profits can be stated in
identical terms.[FN18] Thus, a right to
take material from another's land can be in
gross as a personal right of the owner of
the profit, or it can be a right that is
appurtenant to the land he or she
owns.[FN19]
Profits subject to rules applicable to other
estates. Generally, the rights created by a
profit are governed by the same rules that
apply to other estates in real property.
Thus, the right of removal can be limited
by time, can terminate on the occurrence
of an event,[FN20] can be
abandoned,[FN21] or can vest in the
owner without limitations.[FN22] Absent
an express prohibition in the documents
creating the profit, it is assignable and
transferable whether it is appurtenant or in
gross.[FN23]
Recordation. The instrument that creates or
transfers a profit can be recorded[FN24] so
that the right of removal is enforceable
against any subsequent purchaser or
encumbrancer of the servient tenement that
receives the interest with notice of the
profit.[FN25] However, even though the
instrument creating the profit is not
recorded, it may be enforceable against
subsequent parties dealing with the
burdened property if they have notice of
the right to exercise rights under the
profit.[FN26]
Real or personal property. Whether the
subject matter of a profit has the legal
characteristics of real or personal property
depends on whether there has been a
severance from the soil. In general, the
minerals or other things being removed are
treated as real property until they are
severed; they become personal property
when they are removed from the
ground.[FN27]
Rights in the surface of the land. When an
owner of property conveys a profit to
another, both parties have mutual and
reciprocal rights in the use of the surface
area.[FN28]
The conveyance of the profit impliedly
transfers to the grantee certain secondary
easements in the surface of the servient
tenement that allow the grantee to enter on
the property to exercise rights of removal.
The grantee also has such other rights in
the possession of the surface as are
reasonably necessary and convenient for
the performance of the profit, even if those
rights may preclude any other possession
of the surface.[FN29] However, the
grantee cannot take possession of the
surface in any manner that imposes an
unreasonable burden on the servient
estate.[FN30]
The owner of the land retains all rights to
use and enjoy the surface that do not
interfere with the exercise of the profit.
After a profit has been conveyed, the
owner of the surface cannot do anything to
change the rights or increase the burden of
the owner of the profit in exercising his or
her rights to enter on the surface. Thus, if
the land is subsequently subdivided, the
owner of the profit can continue to use the
surface in any reasonable manner, even
though the use is concentrated on only one
of the subdivided parcels.[FN31]
Case Example: A right to harvest nuts on
trees grown on another's land was acquired
by prescription. The court held that the
owner of the profit was entitled to harvest
and retain the annual crop of nuts, and he
could enter on the land in the immediate
vicinity of the trees to care for them.
However, the court also held that his rights
terminated when the trees died, and he
could not replant additional trees.[FN32]
[FN1] Mehdizadeh v. Mincer, 46 Cal.

App. 4th 1296, 1306, 54 Cal. Rptr. 2d 284
(2d Dist. 1996), as modified on denial of
reh'g, (July 24, 1996).
See 15:5 (definition and nature of an
easement).
[FN2] Kazi v. State Farm Fire and Cas.
Co., 24 Cal. 4th 871, 881, 103 Cal. Rptr.
2d 1, 15 P.3d 223, 31 Envtl. L. Rep. 20411
(2001), discussing with approval
Gunderson v. Fire Ins. Exchange, 37 Cal.
App. 4th 1106, 44 Cal. Rptr. 2d 272 (1st
Dist. 1995).
Co., 24 Cal. 4th 871, 881, 103 Cal. Rptr.
2d 1, 15 P.3d 223, 31 Envtl. L. Rep. 20411
Dist. 1995).
[FN4] See Painter v. Pasadena Land &
Water Co., 91 Cal. 74, 84, 27 P. 539
(1891); Richfield Oil Co. of California v.
Hercules Gasoline Co., 112 Cal. App. 431,
434, 297 P. 73 (1st Dist. 1931).
[FN5] Wells Fargo Bank v. Goldzband, 53
Cal. App. 4th 596, 606, 61 Cal. Rptr. 2d
826, 136 O.G.R. 468 (5th Dist. 1997)
Gerhard v. Stephens, 68 Cal. 2d 864, 877,
69 Cal. Rptr. 612, 442 P.2d 692 (1968);
Schiffman v. Richfield Oil Co. of Cal., 8
Cal. 2d 211, 223, 64 P.2d 1081 (1937);
Dabney-Johnston Oil Corp. v. Walden, 4
Cal. 2d 637, 649, 52 P.2d 237 (1935);
Callahan v. Martin, 3 Cal. 2d 110, 118-
122, 43 P.2d 788, 101 A.L.R. 871 (1935);
Painter v. Pasadena Land & Water Co., 91
Cal. 74, 84, 27 P. 539 (1891); Kennecott
Corp. v. Union Oil Co., 196 Cal. App. 3d
1179, 1186, 242 Cal. Rptr. 403 (4th Dist.
1987); Rousselot v. Spanier, 60 Cal. App.
3d 238, 241, 131 Cal. Rptr. 438 (2d Dist.
1976); Frahm v. Briggs, 12 Cal. App. 3d
441, 445, 90 Cal. Rptr. 725 (2d Dist.
1970).
See 9:1 ("estate" defined), 9:2
(classification, generally), 17:3 to 17:5
(distinctions between realty and
personalty).
[FN6] Phillips Petroleum Co. v. County of
Lake, 15 Cal. App. 4th 180, 185, 18 Cal.
Rptr. 2d 765 (1st Dist. 1993).
See 19:4 (profit a prendre), comparing a
profit to a lease.
[FN7] Dabney-Johnston Oil Corp. v.
Walden, 4 Cal. 2d 637, 649, 52 P.2d 237
(1935); Callahan v. Martin, 3 Cal. 2d 110,
118-121, 43 P.2d 788, 101 A.L.R. 871
(1935); Kennecott Corp. v. Union Oil Co.,
196 Cal. App. 3d 1179, 1186, 242 Cal.
Rptr. 403 (4th Dist. 1987); Santa Clara
Sand & Gravel Co. v. State Bd. of
Equalization, 225 Cal. App. 2d 676, 684,
37 Cal. Rptr. 506 (1st Dist. 1964);
Richfield Oil Co. of California v. Hercules
Gasoline Co., 112 Cal. App. 431, 434, 297
P. 73 (1st Dist. 1931); Yuba Conso.
Goldfields v. Hilton, 16 Cal. App. 228,
233, 116 P. 712 (3d Dist. 1911) (right to
take driftwood).
[FN8] See Rights of fishing, boating,
bathing, or the like in inland lakes, 57
A.L.R.2d 569; Right created by private
grant or reservation to hunt or fish on
another's land, 49 A.L.R.2d 1395.
[FN9] See 17:31 (fixtures; timber).
[FN10] Costa v. Fawcett, 202 Cal. App. 2d
695, 702, 21 Cal. Rptr. 143 (5th Dist.
1962) (nut crop).
See 17:32 (fixtures; crops), 17:33
(encumbrance of crops as personal
property), 17:34 (conveyance of the
realty), 17:33 to 17:34 (encumbrance of
the realty), 17:36 (lease of the realty).
[FN11] Painter v. Pasadena Land & Water
Co., 91 Cal. 74, 81-85, 27 P. 539 (1891).
See 17:25 (fixtures; water rights
definitions and common law rights),
17:26 (regulation of water rights).
[FN12] Santa Clara Sand & Gravel Co. v.
State Bd. of Equalization, 225 Cal. App.
2d 676, 679, 37 Cal. Rptr. 506 (1st Dist.
1964); O'Connor v. U.S., 155 F.2d 425,
426 (C.C.A. 9th Cir. 1946).
See 17:21 (fixtures; minerals).
[FN13] See 17:21 (fixtures; minerals).
[FN14] Gerhard v. Stephens, 68 Cal. 2d
864, 877-879, 69 Cal. Rptr. 612, 442 P.2d
692 (1968); Dabney-Johnston Oil Corp. v.
Walden, 4 Cal. 2d 637, 649, 52 P.2d 237
118, 43 P.2d 788, 101 A.L.R. 871 (1935).
See 17:23 (fixtures; oil and gas).
[FN15] See 17:22 (fixtures; geothermal
resources).
[FN16] See 15:5 (definition and nature
of easements).
[FN17] Civ. Code, 801, 802.
See 15:6 (appurtenant easements;
conveyance or encumbrance of the
dominant tenement), 15:7 (easement in
gross), 15:8 (determination as
appurtenant easement or easement in
gross).
Also see Right created by private grant or
reservation to hunt or fish on another's
land, 49 A.L.R.2d 1395.
864, 877, 69 Cal. Rptr. 612, 442 P.2d 692
(1968); Leggio v. Haggerty, 231 Cal. App.
2d 873, 880, 42 Cal. Rptr. 400 (5th Dist.
1965).
Walden, 4 Cal. 2d 637, 649-651, 52 P.2d
237 (1935); Callahan v. Martin, 3 Cal. 2d
110, 122, 43 P.2d 788, 101 A.L.R. 871
(1935).
See 15:6 (appurtenant easements), 15:7
(in gross easements).
[FN20] Rousselot v. Spanier, 60 Cal. App.
3d 238, 241-243, 131 Cal. Rptr. 438 (2d
Dist. 1976).
See 9:25 (future interests, definitions),
9:26 (reversions), 9:27 (possibility of
reverter), 9:28 (right of re-entry), 9:29
(remainders), 9:30 (vested or contingent
nature), 9:31 (termination; court
proceedings), 9:32 (rights of
remaindermen), 9:33 (the legal estates
principal and income law).
864, 882, 69 Cal. Rptr. 612, 442 P.2d 692
196 Cal. App. 3d 1179, 1187, 242 Cal.
Rptr. 403 (4th Dist. 1987) (profit can be
abandoned by the unilateral action of its
holder).
[FN22] Schiffman v. Richfield Oil Co. of
Cal., 8 Cal. 2d 211, 213-215, 64 P.2d 1081
(1937); Dabney-Johnston Oil Corp. v.
Walden, 4 Cal. 2d 637, 649, 52 P.2d 237
121, 43 P.2d 788, 101 A.L.R. 871 (1935);
Wall v. Shell Oil Co., 209 Cal. App. 2d
504, 510, 25 Cal. Rptr. 908 (2d Dist.
1962).
Cal., 8 Cal. 2d 211, 214, 64 P.2d 1081
Walden, 4 Cal. 2d 637, 649, 52 P.2d 237
121, 43 P.2d 788, 101 A.L.R. 871 (1935);
Painter v. Pasadena Land & Water Co., 91
Cal. 74, 81, 27 P. 539 (1891).
[FN24] Civ. Code, 1219 (oil and gas
leases); Dabney-Johnston Oil Corp. v.
Walden, 4 Cal. 2d 637, 647, 52 P.2d 237
113, 43 P.2d 788, 101 A.L.R. 871 (1935).
See 11:4 (instruments subject to
recording), 11:5 (recorder's refusal to
record), 11:6 (list of recordable
documents), 17:5 (transfer and
recording).
Cal., 8 Cal. 2d 211, 214, 64 P.2d 1081
Walden, 4 Cal. 2d 637, 647, 52 P.2d 237
113, 43 P.2d 788, 101 A.L.R. 871 (1935).
See 11:1 (rules governing priorities),
11:3 (effect of recording statutes on
priority), 11:49 (bona fide purchaser;
definitions; rules of priority), 11:59
(recordation as constructive notice).
[FN26] See 11:2 (enforceability of
unrecorded instruments), 11:75 to 11:77
(notice from circumstances), 11:78 to
11:88 (implied notice from possession or
use).
[FN27] Santa Clara Sand & Gravel Co. v.
State Bd. of Equalization, 225 Cal. App.
2d 676, 684-85, 37 Cal. Rptr. 506 (1st
Dist. 1964) (gravel); Stone v. City of Los
Angeles, 114 Cal. App. 192, 202, 299 P.
838 (4th Dist. 1931); Richfield Oil Co. of
California v. Hercules Gasoline Co., 112
Cal. App. 431, 434, 297 P. 73 (1st Dist.
1931).
See 17:20 to 17:36 (separately
transferable interests), 17:21 (minerals),
17:22 (geothermal resources), 17:30
(things growing, generally), 17:31
(timber), 17:32 (crops), 17:33
(encumbrance of crops as personal
property), 17:34 (conveyance of the
realty), 17:33 to 17:34 (encumbrance of
the realty).
[FN28] See 17:21 (minerals), 17:23
(oil and gas), 17:31 (timber), 17:32 to
17:35 (crops).
Walden, 4 Cal. 2d 637, 649-650, 52 P.2d
237 (1935); Callahan v. Martin, 3 Cal. 2d
110, 122, 43 P.2d 788, 101 A.L.R. 871
196 Cal. App. 3d 1179, 1186, 242 Cal.
Rptr. 403 (4th Dist. 1987); Wall v. Shell
Oil Co., 209 Cal. App. 2d 504, 511-513,
25 Cal. Rptr. 908 (2d Dist. 1962); Costa v.
Fawcett, 202 Cal. App. 2d 695, 702, 21
Cal. Rptr. 143 (5th Dist. 1962); Richfield
Oil Co. of California v. Hercules Gasoline
Co., 112 Cal. App. 431, 434, 297 P. 73
(1st Dist. 1931).
[FN30] Wall v. Shell Oil Co., 209 Cal.
App. 2d 504, 511-513, 25 Cal. Rptr. 908
(2d Dist. 1962).
See Surface owner's right of access
through solid mineral seam or vein
conveyed to another, or through the space
left by its removal, to reach underlying
strata, water, oil, gas, etc, 25 A.L.R.2d
1250.
See also 15:54 to 15:62 (use of
easements).
[FN31] Wall v. Shell Oil Co., 209 Cal.
App. 2d 504, 513, 25 Cal. Rptr. 908 (2d
Dist. 1962).
695, 702, 21 Cal. Rptr. 143 (5th Dist.
1962).
2010 Thomson Reuters/West. No Claim

to Orig. U.S. Govt. Works
MILCALRE 15:1
Kenneth Styles
15:2. Licenses distinguished

to 9
Nature of a license. A license gives

authority to a licensee to perform an act or
acts on the property of another pursuant to
the express or implied permission of the
owner. The licensee has a personal
privilege but does not possess either an
interest or right in the land or any estate in
the property.[FN1] Like an
easement,[FN2] where the location of the
license is not clearly specified, it is
determined by past use, foreseeable use,
and subsequent acquiescence in the
use.[FN3]
Transfer of the license. The privilege
conferred by a license is personal to the
licensee and cannot be inherited,
conveyed, or assigned.[FN4] Any
attempted transfer or assignment
terminates the license.[FN5]
Generally revocable. A licensor generally
can revoke a license at any time without
excuse or without consideration to the
licensee.[FN6] In addition, a conveyance
of the property burdened with a license
revokes the license,[FN7] and the
destruction of the servient tenement
automatically revokes the license.[FN8]
A license is not insurable. Because the
license is terminable it cannot be insured
by a policy of title insurance, but a policy
insuring the servient tenement burdened by
the license usually discloses the license as
an exception to title if it appears in the
public records.[FN9]
Easement and license distinguished. The
terms "easement" and "license" are
sometimes used indiscriminately by both
the parties to the license and the
courts.[FN10] However, they are clearly
distinguishable rights. An easement creates
a present incorporeal interest in real
property that is subject to the statute of
frauds and is protectable, irrevocable, and
compensable.[FN11]
By comparison, a license does not create
or convey any interest or estate in the real
property; it merely makes lawful an act
that otherwise would constitute a trespass.
"[A] licensee is a person or entity
authorized to do a particular act or acts on
the property of another without possessing
any estate therein. [citation omitted] A
license in this sense is a personal privilege
conferred either by a written or oral
agreement, to perform a certain act or acts
without conferring any interest in the
land."[FN12]
The licensee cannot bring an action in
trespass or ejectment. At most he or she
may be able to maintain an action to enjoin
or redress a violation of the right to
exercise the license.[FN13] Unlike an
easement, the license is not a right that is
compensable in condemnation
proceedings.[FN14]
The statute of frauds does not apply. A
license is not within the statute of
frauds;[FN15] it can be created either by a
written conveyance or by mere oral
agreement.[FN16] It also can arise by
implication from the acts of the parties,
from their relations, or from custom. Thus,
where a landowner knowingly permits
another to perform acts on his or her land
repeatedly, a license may be implied from
his or her failure to object.[FN17]
License may become irrevocable. In some
circumstances, a license may become
irrevocable. An irrevocable license is an
anomaly in that it is akin to an easement,
but it is not created with the formalities
required for the creation of an easement,
and, unlike an easement, it is not a
permanent right to use another's
property.[FN18]
One cotenant cannot create an easement in
jointly held property unilaterally without
the consent of the other cotenant.
However, a cotenant can give a license,
and it may become irrevocable against
both cotenants.[FN19]
License is irrevocable when coupled with
an interest. When the license is coupled
with an interest in the property, it may be
irrevocable as long as the licensee retains
the interest. Thus, a license to enter land to
remove the licensee's property is
irrevocable for a reasonable period of time
to allow the licensee to remove the
property.[FN20]
Estoppel to revoke the license. A license
may become irrevocable where, in
reasonable reliance on the license, the
licensee expends time and a substantial
amount of money on improvements with
the knowledge of the licensor under such
circumstances that it would be inequitable
to terminate the license.[FN21] "[W]here a
licensee has entered under a parol license
and has expended money, or its equivalent
in labor, in the execution of the license, the
license becomes irrevocable, the licensee
will have a right of entry on the lands of
the licensor for the purpose of maintaining
his structures, or, in general, his rights
under his license, and the license will
continue for so long a time as the nature of
it calls for."[FN22]
In such cases, the license is made
irrevocable on the grounds of estoppel and
to prevent the licensor from committing
fraud on the licensee.[FN23] It is
necessary that a license be given expressly
by the licensor or when it is not given
expressly, the license must be exercised
with the licensor's knowledge and under
such circumstances as would prompt a
reasonable person to object. Furthermore,
the reliance by the licensee must be
reasonable[FN24] and labor or money
must be expended to such an extent that it
would be inequitable to deny the right to
exercise the license.[FN25]
Case Example: The licensor and licensee
owned adjoining parcels and orally agreed
that the licensee could use a road across
the licensor's property. In reliance on the
license, the parties shared the costs of
improving the road. The licensee also
expended substantial funds to remodel a
building on his property to make it suitable
for his residence. The licensee
subsequently expended costs for
maintaining the road and its surface. The
court held that the licensee had "an
executed, irrevocable parol license" for the
"purposes of ingress and egress to and
from their property for so long as the
nature of their use required the
continuance of the license."[FN26]
Nature of irrevocable license. Once a
license is determined to be irrevocable, it
is treated, for most purposes, as an
easement and is enforceable by a successor
of the licensee against a successor of the
licensor.[FN27] The owner of an
irrevocable license has a sufficient
possessory interest to maintain a quiet title
action even though his or her interest is
less than a fee.[FN28]
Period of irrevocability. A license remains
irrevocable for a period sufficient to enable
the licensee to capitalize on his or her
investment. He can continue to use it only
as long as justice and equity require its
use.[FN29] In other words, after the
objectives of the license have been
satisfied, it again becomes
revocable.[FN30]
[FN1] Golden West Baseball Co. v. City

of Anaheim, 25 Cal. App. 4th 11, 36, 31
Cal. Rptr. 2d 378 (4th Dist. 1994); Jenson
v. Kenneth I. Mullen Inc., 211 Cal. App.
3d 653, 657, 259 Cal. Rptr. 552 (2d Dist.
1989); Colvin v. Southern Cal. Edison Co.,
194 Cal. App. 3d 1306, 1312, 240 Cal.
Rptr. 142 (2d Dist. 1987) (overruled on
other grounds by, Ornelas v. Randolph, 4
Cal. 4th 1095, 17 Cal. Rptr. 2d 594, 847
P.2d 560 (1993)); O'Shea v. Claude C.
Wood Co., 97 Cal. App. 3d 903, 909, 159
Cal. Rptr. 125 (3d Dist. 1979); Guerra v.
Packard, 236 Cal. App. 2d 272, 285, 46
Cal. Rptr. 25 (1st Dist. 1965); Covina
Manor, Inc. v. Hatch, 133 Cal. App. 2d
Supp. 790, 284 P.2d 580 (App. Dep't
Super. Ct. 1955); Fisher v. General
Petroleum Corp., 123 Cal. App. 2d 770,
776, 267 P.2d 841 (2d Dist. 1954); Bryant
v. Marstelle, 76 Cal. App. 2d 740, 746,
173 P.2d 846 (2d Dist. 1946); Massetti v.
Madera Canal & Irrigation Co., 20 Cal.
App. 2d 708, 716, 68 P.2d 260 (3d Dist.
1937); Eastman v. Piper, 68 Cal. App. 554,
560, 229 P. 1002 (2d Dist. 1924).
See 19:5 (comparing a license to a
lease).
[FN2] See 15:49 to 15:53 (location of
easements).
Cal. Rptr. 2d 378 (4th Dist. 1994).
[FN4] Belmont County Water Dist. v.
State of California, 65 Cal. App. 3d 13, 17,
135 Cal. Rptr. 163 (1st Dist. 1976); Fisher
v. General Petroleum Corp., 123 Cal. App.
2d 770, 776, 267 P.2d 841 (2d Dist. 1954);
Von Goerlitz v. Turner, 65 Cal. App. 2d
425, 430, 150 P.2d 278 (3d Dist. 1944);
Eastman v. Piper, 68 Cal. App. 554, 560,
229 P. 1002 (2d Dist. 1924); Shaw v.
Caldwell, 16 Cal. App. 1, 7, 115 P. 941
(3d Dist. 1911).
[FN5] Eastman v. Piper, 68 Cal. App. 554,
560, 229 P. 1002 (2d Dist. 1924); Shaw v.
Caldwell, 16 Cal. App. 1, 8, 115 P. 941
(3d Dist. 1911).
[FN6] Bomberger v. McKelvey, 35 Cal. 2d
607, 618, 220 P.2d 729 (1950); Stoner v.
Zucker, 148 Cal. 516, 518, 83 P. 808
(1906); O'Shea v. Claude C. Wood Co., 97
Cal. App. 3d 903, 909, 159 Cal. Rptr. 125
(3d Dist. 1979); Wheeler v. West, 71 Cal.
126, 128, 11 P. 871 (1886); Belmont
County Water Dist. v. State of California,
65 Cal. App. 3d 13, 17, 135 Cal. Rptr. 163
(1st Dist. 1976); El Dorado County v. Al
Tahoe Inv. Co., 175 Cal. App. 2d 407,
411, 346 P.2d 205 (3d Dist. 1959); Bryant
v. Marstelle, 76 Cal. App. 2d 740, 746,
173 P.2d 846 (2d Dist. 1946); Von
Goerlitz v. Turner, 65 Cal. App. 2d 425,
430, 150 P.2d 278 (3d Dist. 1944);
Alameda County v. Ross, 32 Cal. App. 2d
135, 143, 89 P.2d 460 (3d Dist. 1939).
See Restatement, Property, 519.
See also Duration of license in or on real
property granted for a specific purpose
where no period has been specified, 74
A.L.R.2d 886; Revocability of parol
license with respect to use of wall, 41
A.L.R.2d 558; Revocation of license to cut
and remove timber as affecting rights in
respect of timber cut but not removed, 26
A.L.R.2d 1194.
[FN7] Fisher v. General Petroleum Corp.,
123 Cal. App. 2d 770, 777, 267 P.2d 841
(2d Dist. 1954); Shaw v. Caldwell, 16 Cal.
App. 1, 8, 115 P. 941 (3d Dist. 1911).
[FN8] Cohen v. Adolph Kutner Co., 177
Cal. 592, 594, 171 P. 424 (1918)
(destruction of the building that was the
site of the license).
See 15:76 (destruction of the servient
tenement).
[FN9] See 7:47 (primary coverage:
defects shown by the public records),
7:48 (indemnity for defects, liens, and
encumbrances), 7:49 (indemnity for
easements).
[FN10] Cohen v. Adolph Kutner Co., 177
Cal. 592, 594, 171 P. 424 (1918); Colvin
v. Southern Cal. Edison Co., 194 Cal. App.
3d 1306, 1312, 240 Cal. Rptr. 142 (2d
Dist. 1987) (overruled on other grounds
by, Ornelas v. Randolph, 4 Cal. 4th 1095,
17 Cal. Rptr. 2d 594, 847 P.2d 560
(1993)); Fisher v. General Petroleum
Corp., 123 Cal. App. 2d 770, 776, 267
P.2d 841 (2d Dist. 1954); Muzio v.
Erickson, 41 Cal. App. 413, 417, 182 P.
974 (2d Dist. 1919).
[FN11] See 15:5 (definition and nature
of an easement).
[FN12] Jenson v. Kenneth I. Mullen Inc.,
211 Cal. App. 3d 653, 657, 259 Cal. Rptr.
552 (2d Dist. 1989). See also, San Jose
Parking, Inc. v. Superior Court, 110
Cal.App.4th 1321, 2 Cal.Rptr.3d 505 (6th
Dist. 2003) (the court expressed that
(u)nder the [Redevelopment] Agency's
view the agreement is an interest or estate
in real property because it has attributes of
a licence...[However] case law makes clear
that licences create no interests in real
property.)
[FN13] Nahas v. Local 905, Retail Clerks
Assn., 144 Cal. App. 2d 808, 819, 820,
301 P.2d 932 (2d Dist. 1956) (disapproved
of by, Schwartz-Torrance Inv. Corp. v.
Bakery and Confectionery Workers'
Union, Local No. 31, 61 Cal. 2d 766, 40
Cal. Rptr. 233, 394 P.2d 921 (1964)).
See Remedy of tenant against stranger
wrongfully interfering with his possession,
12 A.L.R.2d 1192.
In Colvin v. Southern Cal. Edison Co., 194
Cal. App. 3d 1306, 1312, 240 Cal. Rptr.
142 (2d Dist. 1987) (overruled on other
grounds by, Ornelas v. Randolph, 4 Cal.
4th 1095, 17 Cal. Rptr. 2d 594, 847 P.2d
560 (1993)), the court held that the
licensee has an interest in land sufficient
for the immunity from liability for injury
to recreational users of the property.
See 15:68 (duty to third parties).
[FN14] Belmont County Water Dist. v.
State of California, 65 Cal. App. 3d 13, 17,
135 Cal. Rptr. 163 (1st Dist. 1976).
[FN15] Colvin v. Southern Cal. Edison
Co., 194 Cal. App. 3d 1306, 1312, 240
Cal. Rptr. 142 (2d Dist. 1987) (overruled
on other grounds by, Ornelas v. Randolph,
4 Cal. 4th 1095, 17 Cal. Rptr. 2d 594, 847
P.2d 560 (1993)).
See 1:65 (provisions applicable to real
estate transactions), 1:69 (contract for
the transfer, sale, gift, or financing of real
property).
[FN16] Miller & Lux v. Kern County Land
Co., 154 Cal. 785, 788, 99 P. 179 (1908);
Grimshaw v. Belcher, 88 Cal. 217, 219, 26
P. 84 (1891); Churchill v. Russell, 148
Cal. 1, 3-5, 82 P. 440 (1905); Stoner v.
Zucker, 148 Cal. 516, 520, 83 P. 808
(1906); Flickinger v. Shaw, 87 Cal. 126,
127, 25 P. 268 (1890); Wheeler v. West,
71 Cal. 126, 128, 11 P. 871 (1886);
Higgins v. Kadjevich, 186 Cal. App. 2d
520, 523, 9 Cal. Rptr. 115 (1st Dist. 1960);
Zellers v. State, 134 Cal. App. 2d 270,
275, 285 P.2d 962 (2d Dist. 1955); Stepp
v. Williams, 52 Cal. App. 237, 254, 198 P.
661 (3d Dist. 1921).
[FN17] See Lusk v. Krejci, 187 Cal. App.
2d 553, 555, 9 Cal. Rptr. 703 (1st Dist.
1960); Zellers v. State, 134 Cal. App. 2d
270, 275, 285 P.2d 962 (2d Dist. 1955);
Gravelly Ford Canal Co. v. Pope & Talbot
Land Co., 36 Cal. App. 717, 718-722, 178
P. 155 (3d Dist. 1918).
Also see Witkin, 12 Summary of
California L., 429 to 430 (10th ed.).
[FN18] See e.g., Belmont County Water
Dist. v. State of California, 65 Cal. App.
3d 13, 17, 135 Cal. Rptr. 163 (1st Dist.
1976); Qualls v. Lake Berryessa
Enterprises, Inc., 76 Cal. App. 4th 1277,
1285, 91 Cal. Rptr. 2d 143 (1st Dist.
1999).
[FN19] See 12:3 (right to lease or license
to a third person).
[FN20] Bomberger v. McKelvey, 35 Cal.
2d 607, 618, 220 P.2d 729 (1950).
See Duration of license in or on real
A.L.R.2d 886.
[FN21] Cooke v. Ramponi, 38 Cal. 2d
282, 286, 239 P.2d 638 (1952); Miller &
Lux v. Kern County Land Co., 154 Cal.
785, 788, 99 P. 179 (1908); Blankenship v.
Whaley, 124 Cal. 300, 304, 57 P. 79
(1899); Smith v. Green, 109 Cal. 228, 234,
41 P. 1022 (1895); Grimshaw v. Belcher,
88 Cal. 217, 220, 26 P. 84 (1891);
Flickinger v. Shaw, 87 Cal. 126, 132, 25 P.
268 (1890); Noronha v. Stewart, 199 Cal.
App. 3d 485, 490, 245 Cal. Rptr. 94 (2d
Dist. 1988); Belmont County Water Dist.
v. State of California, 65 Cal. App. 3d 13,
17, 135 Cal. Rptr. 163 (1st Dist. 1976);
Higgins v. Kadjevich, 186 Cal. App. 2d
520, 523, 9 Cal. Rptr. 115 (1st Dist. 1960);
Douglas v. Lewin, 131 Cal. App. 159, 161,
20 P.2d 959 (1st Dist. 1933); Ricioli v.
Lynch, 65 Cal. App. 53, 58, 223 P. 88 (3d
Dist. 1923); Clendenin v. White, 62 Cal.
App. 664, 666, 217 P. 761 (3d Dist. 1923);
Irrigated Valleys Land Co. of Cal. v.
Altman, 57 Cal. App. 413, 426, 207 P. 401
(3d Dist. 1922); Stepp v. Williams, 52 Cal.
App. 237, 255-258, 198 P. 661 (3d Dist.
1921); Gravelly Ford Canal Co. v. Pope &
Talbot Land Co., 36 Cal. App. 717, 737,
178 P. 155 (3d Dist. 1918).
282, 286, 239 P.2d 638 (1952); Stoner v.
Zucker, 148 Cal. 516, 520, 83 P. 808
(1906); Hammond v. Mustard, 257 Cal.
App. 2d 384, 388, 64 Cal. Rptr. 829 (1st
Dist. 1967).
282, 286, 239 P.2d 638 (1952); Miller &
Lux v. Kern County Land Co., 154 Cal.
785, 788, 99 P. 179 (1908); Higgins v.
Kadjevich, 186 Cal. App. 2d 520, 524, 9
Cal. Rptr. 115 (1st Dist. 1960); El Dorado
County v. Al Tahoe Inv. Co., 175 Cal.
App. 2d 407, 411, 346 P.2d 205 (3d Dist.
1959).
[FN24] Hammond v. Mustard, 257 Cal.
App. 2d 384, 389, 64 Cal. Rptr. 829 (1st
Dist. 1967).
[FN25] Broads v. Mead, 159 Cal. 765,
768, 116 P. 46 (1911) (license held
revocable because there was no evidence
of either the licensor's knowledge or any
substantial loss to the licensee); McCarthy
v. Mutual Relief Ass'n of Petaluma, 81
Cal. 584, 588, 22 P. 933 (1889) (license
revocable because the licensee expended
only a "trivial" amount); Belmont County
Water Dist. v. State of California, 65 Cal.
App. 3d 13, 18, 135 Cal. Rptr. 163 (1st
Dist. 1976) (license revocable because no
improvements made on the property);
Lusk v. Krejci, 187 Cal. App. 2d 553, 555,
9 Cal. Rptr. 703 (1st Dist. 1960) (license
revocable because there was no evidence
of an express or an implied consent for an
encroachment); Kaler v. Brown, 101 Cal.
App. 2d 716, 719, 226 P.2d 66 (2d Dist.
1951) (license revocable because of
inadequate expenditures by the licensee);
Bryant v. Marstelle, 76 Cal. App. 2d 740,
746, 173 P.2d 846 (2d Dist. 1946) (license
revocable because it was agreed to be for a
limited time only); Alameda County v.
Ross, 32 Cal. App. 2d 135, 141, 89 P.2d
460 (3d Dist. 1939) (license revocable
because it was expressly stated to be so
and the licensee had no reason to believe
that it would become irrevocable).
282, 286, 239 P.2d 638 (1952).
See 15:4 (lease distinguished).
[FN27] Stoner v. Zucker, 148 Cal. 516,
520, 83 P. 808 (1906); Higgins v.
Kadjevich, 186 Cal. App. 2d 520, 523, 9
Cal. Rptr. 115 (1st Dist. 1960); Ricioli v.
Lynch, 65 Cal. App. 53, 58, 223 P. 88 (3d
Dist. 1923); Irrigated Valleys Land Co. of
Cal. v. Altman, 57 Cal. App. 413, 427, 207
P. 401 (3d Dist. 1922); Imperial Water Co.
No. 1 v. Wores, 29 Cal. App. 253, 260,
155 P. 124 (2d Dist. 1915).
A licensee may not have all of the rights of
an owner of an easement. In Grimshaw v.
Belcher, 88 Cal. 217, 219, 26 P. 84 (1891),
a levee was constructed pursuant to a
license that the court held to be
irrevocable. The court concluded that the
licensor could not remove the levee, but
the licensee was prevented from entering
upon the licensor's property to repair or
maintain it.
But in Clendenin v. White, 62 Cal. App.
664, 666, 217 P. 761 (3d Dist. 1923), the
licensee was given the right to enter upon
the servient tenement to maintain a ditch.
[FN29] Stoner v. Zucker, 148 Cal. 516,
520, 83 P. 808 (1906).
[FN30] Bryant v. Marstelle, 76 Cal. App.
2d 740, 746, 173 P.2d 846 (2d Dist. 1946).
One case has stated, however, that during
the period the license remains irrevocable,
the licensee can acquire a prescriptive
right. Ricioli v. Lynch, 65 Cal. App. 53,
58, 223 P. 88 (3d Dist. 1923). This
statement appears contradictory. A license
is based on express or implied consent and
if used by permission it should not ripen
into a prescriptive right. In theory, either
the licensee has permission, and because
of his or her expenditures the license has
become irrevocable for the necessary
period under the circumstances, or the
licensee did not have permission and he or
she has used the property adversely and
under a claim of right.
See 15:35 to 15:36 (hostile and adverse
without permission of the owner.
See also Duration of license in or on real
A.L.R.2d 886.

MILCALRE 15:2
Kenneth Styles
15:3. Covenants and conditions

distinguished

West's Key Number Digest, Easements 1 to 9
Restrictions. A private landowner can impose

restrictions by way of covenants or conditions
on the land retained and on property being
conveyed.[FN1] Similar to an easement,
covenants and conditions may impose a burden
on either the land transferred or the property
retained. They are also similar to easements in
that they can be created by deed, by an
agreement between property owners, or by
recorded tract restrictions that satisfy certain
legal requirements.[FN2] In some cases, the
restrictions create a right to use the land of
another, but more often, like negative
easements, they restrict the use of another's
property.[FN3]
Enforcement separate from easements.
Properly created restrictions can be enforced
even though the provisions creating them
would not qualify to create an easement.[FN4]
Case Example: A landowner recorded a
"declaration of restrictions" that restricted the
use of portions of the land for the benefit of the
United States in order to protect a military
airport approach corridor. A subsequent
landowner alleged that as a covenant it was
subject to the doctrine of changed
circumstances even though by its terms the
restriction was permanent. The government
alleged that an easement was created that is not
subject to equitable termination. The court held
that because the declaration satisfied the
requirement for a covenant, and there were no
operative words of conveyance, the declaration
created a covenant and not an easement.[FN5]
An unenforceable restriction may be
enforceable as an easement. In some cases, an
inadequate attempt to establish a restriction
may still be enforced as an easement. For
example, one of the requirements for a
restriction to be enforced against a third party
is that it benefit the property of the
covenantee.[FN6] When the covenant fails to
mention the property benefited, the restriction
is unenforceable. However, because a
dominant tenement need not be described in
the instrument creating an easement,[FN7] the
attempted restriction may still be enforced as
an easement.[FN8]
Comment: Several decisions have concluded
that because the benefited property is not
described, the provisions of the deed cannot be
enforced as either a restriction or an easement.
However, because a dominant tenement need
not be described in the deed, the limitations
should still be enforced as express negative
easements.[FN9]
[FN1] See 24:1 (definition and explanation of
covenants that "run with the land").
[FN2] See 15:13 (easements, description of
methods of creation), 15:14 (grant or
reservation, requirements for creation; security
for liens), 15:19 (circumstances where an
easement will be implied), 15:42 to 15:48
(other methods of creation), and 24:1 to
24:3 (covenants), 24:9 (equitable servitudes,
creation generally), 24:15 (requirement of
notice).
See also Witkin, 12 Summary of California L.,
431 to 439 (10th ed.).
[FN3] See 15:9 (affirmative and negative
easements), 15:10 (easements for light, air, or
view), 15:11 (solar easements), 24:4
(equitable servitudes; types of enforceable
restrictions).
[FN4] See 24:17 (rights of enforcement),
24:20 (defenses to enforcementchange of
conditions).
[FN5] Cortese v. U.S., 782 F.2d 845, 849-850
(9th Cir. 1986) (citing text).
See Mock v. Shulman, 226 Cal. App. 2d 263,
266-269, 38 Cal. Rptr. 39 (2d Dist. 1964);
Wool v. Scott, 140 Cal. App. 2d 835, 845-847,
296 P.2d 17 (1st Dist. 1956).
[FN6] See 24:1 (definition and explanation of
covenants that "run with the land"), 24:3
(creation under the requirements of present
statutory law).
[FN7] See 15:7 (easement in gross), 15:8
(determination as appurtenant easement or
easement in gross), 15:9 (affirmative and
negative easements).
[FN8] Bryan v. Grosse, 155 Cal. 132, 136, 99
P. 499 (1909). See Relovich v. Stuart, 211 Cal.
422, 428, 295 P. 819 (1931); Layne v. Bryant,
108 Cal. App. 324, 328, 291 P. 615 (1st Dist.
1930) (not a covenant because not created by a
conveyance).
[FN9] See Berryman v. Hotel Savoy Co., 160
Cal. 559, 562-564, 117 P. 677 (1911); Los
Angeles Terminal Land Co. v. Muir, 136 Cal.
36, 41, 68 P. 308 (1902); Chandler v. Smith,
170 Cal. App. 2d 118, 119, 338 P.2d 522 (3d
Dist. 1959); Marin County Hospital Dist. v.
Cicurel, 154 Cal. App. 2d 294, 298-301, 316
P.2d 32 (1st Dist. 1957).

MILCALRE 15:3

Kenneth Styles
15:4. Lease distinguished
Lease and easement compared. A lease is an

agreement that grants to the tenant the rights of
exclusive possession and use of real property
for a specified period of time. It creates a
possessory estate in real property.[FN1]
An easement is an incorporeal, intangible and
nonpossessory right to use the land of another
that may be a permanent right, or a right for a
limited period of time.[FN2] While the lease
vests the exclusive possession of the leasehold
in the lessee against all persons, including the
owner of the fee,[FN3] an easement merely
gives the holder a right of use, and the owner
of the underlying fee retains the rights of
possession, subject to the holder's use.[FN4]
Thus, a lease creates an estate in real
property,[FN5] but an easement merely creates
an interest in real property that is not an
estate.[FN6]
Case Example: A contract giving a sporting
team exclusive use of a stadium on game days,
with the city providing all services, that
reserves all other use of the property to the
city, may be an easement or a license, but it is
not a lease.[FN7] A lease requires evidence of
an intent to create a landlord-tenant
relationship and gives exclusive possession to
the lessee against all the world for a specified
period of time. A contract that gives possession
of the premises only for a limited number of
days that vary from year to year, where the
owner operates the parking, concessions, and
security, is not a lease because the "lessee's"
possession is not exclusive against the owner.
In contrast to a lease, an easement does not
give an exclusive possession of land but merely
a right to use the land. An easement may be
created by contract and may be given in
perpetuity or for a fixed period of time, and the
owner of the easement may be given an
exclusive right of use, but the owner of the
land retains every other incident of ownership
that is not inconsistent with the easement. A
license is an authority by the owner to perform
acts on the property and may become
irrevocable. The type of temporary use granted
by the contract is therefore merely an easement
or an irrevocable license, but not a lease.[FN8]
Title used is not definitive. Its attributes, and
not its title, determine the nature of an interest
as either an easement or a lease. It may be
considered an easement or a license even
though it is titled a "lease."[FN9]
Case Example: In a case that analyzed
whether an "owner of any estate in real
property" was immunized from personal
injuries caused by recreational activity, the
court held that the language in the permit from
the State that used the words "leased for two
years" did not transfer a leasehold, but rather
an easement. The Legislature later amended the
Civil Code to apply to the owner of any estate
"or any other interest" in real property.[FN10]
[FN1] See 19:1 (landlord and tenant,

definitions), 19:2 (lease as personal property
or real property).
[FN2] See 15:5 (definition and nature of an
easement).
definitions), 19:153 (landlord's duty to
deliver possession to the tenant).
[FN4] See 15:63 (relative rights; balancing
the equities), 15:64 (servient tenement
owners), 15:65 (nonexclusive easements),
15:66 (easement owners).
definitions).
easement).
[FN7] Golden West Baseball Co. v. City of
Anaheim, 25 Cal. App. 4th 11, 30, 31 Cal.
Rptr. 2d 378 (4th Dist. 1994).
Rptr. 2d 378 (4th Dist. 1994).
Rptr. 2d 378 (4th Dist. 1994); Darr v. Lone
Star Industries, Inc., 94 Cal. App. 3d 895, 900,
157 Cal. Rptr. 90 (3d Dist. 1979).
[FN10] Darr v. Lone Star Industries, Inc., 94
Cal. App. 3d 895, 900, 157 Cal. Rptr. 90 (3d
Dist. 1979); Civ. Code, 846.

MILCALRE 15:4
Kenneth Styles
B. Definitions; Specific Types of

Easements

15:5. Definition and nature of an
easement

to 9
Easement defined. An easement is an

incorporeal[FN1] interest in the land of
another[FN2] that gives the owner of the
easement the limited right to use another's
property or to prevent the property owner's
use of his or her property.[FN3] It is a
nonpossessory restricted right to a specific
use or activity on the land of another that
is less than ownership but may be a
permanent right or a right for a limited
period of time.[FN4] An easement is an
intangible property right that does not
relate to physical objects but instead is
imposed on the servient land to benefit the
dominant tenement land.[FN5]
An easement, as any other interest in real
property, can be limited in duration either
as an interest for a specific term or as an
interest terminating on the occurrence of a
condition.[FN6] It may be "affirmative" in
that it allows the owner to do acts on the
land of another, or it can be "negative" in
that it prevents a person from doing acts on
his or her own land.[FN7]
An easement is an interest and not an
estate. Although an easement is an interest
in real property, it does not create any title
in the burdened land[FN8] and is not an
estate in real property.[FN9]
It must be created and transferred as an
interest in real property. An easement
creates an interest in real property and
must be created or transferred as real
property by an express or implied grant or
reservation, or by prescription.[FN10] The
transfer of an easement is subject to the
usual rules of priorities.[FN11] The
grantee of an easement takes subject to
existing liens, but he or she is entitled to
have any portion of the security not
affected by the easement sold first at the
foreclosure sale.[FN12]
An easement is a protectable, compensable
interest. An easement is a present interest
in land, and the grant of a future interest
usually does not convey an
easement.[FN13] The owner of an
easement has valuable property rights that
are protected by the law. The owner of the
easement can enjoin any interference with
the easement as a nuisance, recover
damages caused by a wrongful loss of
use,[FN14] and receive compensation if
the easement is taken by eminent
domain.[FN15]
An easement is an encumbrance. An
easement created by a grantor is an
encumbrance in violation of the implied
covenant in a grant deed.[FN16]
An easement must impose a burden on the
land of another. An easement is an interest
in the land of another. An " easement'
means a burden or servitude on land,
whether or not attached to other land as an
incident or appurtenance, that allows the
holder of the burden or servitude to do acts
upon the land."[FN17] Therefore, there is
always a burdened parcel whether the
easement is appurtenant or in gross.[FN18]
An appurtenant easement requires that
there be two parcels: the dominant
tenement benefited by the easement and a
servient tenement burdened by the
easement.[FN19] Therefore, a person
cannot have an easement in his or her own
land.[FN20]
Case Example: An owner of six adjacent
parcels conveyed one 16-acre parcel with a
water system to a water company together
with all appurtenant easements used in the
operation of the system. The remaining
600 acres of the grantor's land were not
used for the water system at that time, and
these parcels were not mentioned in the
deed. The court held that the water
company had an appurtenant easement
across the adjacent parcels owned by the
grantor. The deed referenced easements
and an easement must be on the land of
another. Because the grantor owned two
parcels of property, and there could not be
an easement over the 16-acre parcel on its
conveyance, necessarily any conveyance
of an easement must have been burdening
the remaining parcel owned by the grantor
and the easement was appurtenant.[FN21]
An easement can only burden an estate. An
easement can only be imposed on an estate
in real property. Because an easement is
only an interest in real property and not an
estate, it cannot become a burden on
another easement.[FN22]
Case Example: A landowner conveyed an
easement to a developer to lay sewer pipes
across her property as consideration for her
right to connect to the pipe without further
charge. The city subsequently condemned
the sewer pipe and replaced it with
another. The landowner sought
compensation for the loss of the free
connection. The court recognized that if
the right to the free connection was an
interest in real property, the landowner
could recover compensation for her loss,
but if it was merely a personal contract
right, she could not. The court concluded
that because the right to connect to the
pipe imposed a burden on an easement, the
connection right itself could not be
considered an easement. Thus, the
landowner was not entitled to
compensation.[FN23]
An easement need not include use of the
land. An easement can be imposed as a
burden on an estate in real property even
though the rights created do not include
the use of the land itself.[FN24]
An easement may give its owner the right
to use a stairway or other portions of a
building, which does not give any interest
in the land on which the building is
situated.[FN25]
A person having a right to harvest crops
grown on trees has a "profit" that is a
burden on the trees, but he or she does not
have an ownership interest in the
trees.[FN26]
[FN1] Elliott v. McCombs, 17 Cal. 2d 23,
30, 109 P.2d 329 (1941); Kellett v. Ida
Clayton & G.W. Wagon-Road Co., 99 Cal.
210, 212, 33 P. 885 (1893); Leggio v.
Haggerty, 231 Cal. App. 2d 873, 880, 42
Cal. Rptr. 400 (5th Dist. 1965); City of
Hayward v. Mohr, 160 Cal. App. 2d 427,
431, 325 P.2d 209 (1st Dist. 1958); Roth v.
Cottrell, 112 Cal. App. 2d 621, 625, 246
P.2d 958 (3d Dist. 1952); Moots v. Kasten,
90 Cal. App. 2d 734, 736, 203 P.2d 537
(2d Dist. 1949); Balestra v. Button, 54 Cal.
App. 2d 192, 197, 128 P.2d 816 (3d Dist.
1942); Westlake v. Silva, 49 Cal. App. 2d
476, 478, 121 P.2d 872 (1st Dist. 1942);
Zlozower v. Lindenbaum, 100 Cal. App.
766, 771, 281 P. 102 (3d Dist. 1929);
229 P. 1002 (2d Dist. 1924).
See Cal. Jur. 3d, Easements and Licenses
in Real Property 1.
[FN2] Frahm v. Briggs, 12 Cal. App. 3d
441, 445, 90 Cal. Rptr. 725 (2d Dist.
1970); Sehle v. Producing Properties, Inc.,
230 Cal. App. 2d 430, 432, 41 Cal. Rptr.
136 (4th Dist. 1964); Jones v. Harmon,
175 Cal. App. 2d 869, 875, 1 Cal. Rptr.
192 (2d Dist. 1959); Los Angeles County
v. Wright, 107 Cal. App. 2d 235, 241, 236
P.2d 892 (2d Dist. 1951); Shonafelt v.
Busath, 66 Cal. App. 2d 5, 13, 151 P.2d
873 (2d Dist. 1944); Nelson v. Robinson,
47 Cal. App. 2d 520, 526, 118 P.2d 350
(3d Dist. 1941); Lyons v. Schwartz, 40
Cal. App. 2d 60, 65, 104 P.2d 383 (3d
Dist. 1940); Muzio v. Erickson, 41 Cal.
App. 413, 416, 182 P. 974 (2d Dist. 1919).
[FN3] Civ. Code, 887.010; Wright v.
Best, 19 Cal. 2d 368, 381, 121 P.2d 702
(1942); Mosier v. Mead, 45 Cal. 2d 629,
632, 290 P.2d 495 (1955); Wright v. Best,
19 Cal. 2d 368, 381, 121 P.2d 702 (1942);
Mehdizadeh v. Mincer, 46 Cal. App. 4th
1296, 1306, 54 Cal. Rptr. 2d 284 (2d Dist.
1996), as modified on denial of reh'g, (July
24, 1996); Golden West Baseball Co. v.
City of Anaheim, 25 Cal. App. 4th 11, 35,
31 Cal. Rptr. 2d 378 (4th Dist. 1994) (the
holder of an easement merely has the right
to use the land of another); County
Sanitation Dist. v. Watson Land Co., 17
117 (2d Dist. 1993), as modified, (Aug. 12,
1993); Tract Development Services, Inc. v.
Kepler, 199 Cal. App. 3d 1374, 1384, 246
Cal. Rptr. 469 (4th Dist. 1988); Frahm v.
Briggs, 12 Cal. App. 3d 441, 445, 90 Cal.
Rptr. 725 (2d Dist. 1970); Wolford v.
Thomas, 190 Cal. App. 3d 347, 354, 235
Cal. Rptr. 422 (1st Dist. 1987); Mesnick v.
Caton, 183 Cal. App. 3d 1248, 1261, 228
Cal. Rptr. 779 (2d Dist. 1986); Moylan v.
Dykes, 181 Cal. App. 3d 561, 568, 226
Cal. Rptr. 673 (3d Dist. 1986) (citing text);
Darr v. Lone Star Industries, Inc., 94 Cal.
App. 3d 895, 900, 157 Cal. Rptr. 90 (3d
Dist. 1979); City of Long Beach v.
Daugherty, 75 Cal. App. 3d 972, 977, 142
Cal. Rptr. 593 (2d Dist. 1977); Guerra v.
Packard, 236 Cal. App. 2d 272, 46 Cal.
Rptr. 25 (1st Dist. 1965); Bates v. Terry,
194 Cal. App. 2d 137, 144, 14 Cal. Rptr.
829 (2d Dist. 1961); City of Hayward v.
Mohr, 160 Cal. App. 2d 427, 432, 325
P.2d 209 (1st Dist. 1958); Nelson v.
Robinson, 47 Cal. App. 2d 520, 526, 118
P.2d 350 (3d Dist. 1941); Eastman v.
Piper, 68 Cal. App. 554, 560, 229 P. 1002
(2d Dist. 1924).
[FN4] Mehdizadeh v. Mincer, 46 Cal.
App. 4th 1296, 1306, 54 Cal. Rptr. 2d 284
(2d Dist. 1996), as modified on denial of
reh'g, (July 24, 1996); Golden West
Baseball Co. v. City of Anaheim, 25 Cal.
App. 4th 11, 35, 31 Cal. Rptr. 2d 378 (4th
Dist. 1994); Darr v. Lone Star Industries,
Inc., 94 Cal. App. 3d 895, 900, 157 Cal.
Rptr. 90 (3d Dist. 1979).
Co., 24 Cal. 4th 871, 881, 103 Cal. Rptr.
2d 1, 15 P.3d 223, 31 Envtl. L. Rep. 20411
Dist. 1995).
[FN6] Irvin v. Petitfils, 44 Cal. App. 2d
496, 499, 112 P.2d 688 (4th Dist. 1941);
Darr v. Lone Star Industries, Inc., 94 Cal.
App. 3d 895, 900, 157 Cal. Rptr. 90 (3d
Dist. 1979) (right of use for two years);
229 P. 1002 (2d Dist. 1924); Taylor v.
Ballard, 41 Cal. App. 232, 236, 182 P. 464
(1st Dist. 1919); Brandon v. Umpqua
Lumber & Timber Co., 26 Cal. App. 96,
98, 146 P. 46 (3d Dist. 1914).
See also Commencement and duration of
express easement as affected by provision
in instrument creating it, 154 A.L.R. 5.
See 9:25 (future interests, definitions),
9:26 (reversions), 9:27 (possibility of
reverter), 9:28 (right of re-entry), 9:29
(remainders), 9:30 (vested or contingent
nature), 9:31 (termination; court
proceedings), 9:32 (rights of
remaindermen), 9:33 (the legal estates
principal and income law).
[FN7] See 15:9 (affirmative and negative
easements).
[FN8] Highland Realty Co. v. City of San
Rafael, 46 Cal. 2d 669, 676-678, 298 P.2d
15 (1956); Kripp v. Curtis, 71 Cal. 62, 63,
11 P. 879 (1886); Los Angeles County v.
Wright, 107 Cal. App. 2d 235, 241, 236
P.2d 892 (2d Dist. 1951); Lyons v.
Schwartz, 40 Cal. App. 2d 60, 65, 104
P.2d 383 (3d Dist. 1940).
See Deed as conveying fee or easement,
136 A.L.R. 379.
See also 15:17 (right of way as easement
or fee simple), 15:18 ("reservation" of an
easement, or "exception" of a fee simple).
Cal. Rptr. 2d 378 (4th Dist. 1994);
Concord & Bay Point Land Co. v. City of
Concord, 229 Cal. App. 3d 289, 295, 280
Cal. Rptr. 623 (1st Dist. 1991); Darr v.
Lone Star Industries, Inc., 94 Cal. App. 3d
895, 900, 157 Cal. Rptr. 90 (3d Dist.
1979).
In Smith v. Brovan, 97 Cal. App. 3d 19,
23, 158 Cal. Rptr. 515 (3d Dist. 1979), the
court erroneously states that "an easement
constitutes an estate in land and does
involve ownership of that estate."
See 15:1 (profits distinguished).
[FN10] Elliott v. McCombs, 17 Cal. 2d 23,
30, 109 P.2d 329 (1941); Callahan v.
Martin, 3 Cal. 2d 110, 118-121, 43 P.2d
788, 101 A.L.R. 871 (1935); Wolford v.
Thomas, 190 Cal. App. 3d 347, 356, 235
Cal. Rptr. 422 (1st Dist. 1987); Guerra v.
Packard, 236 Cal. App. 2d 272, 285, 46
Cal. Rptr. 25 (1st Dist. 1965); Goble v.
Dotson, 203 Cal. App. 2d 272, 274-277, 21
Cal. Rptr. 769 (1st Dist. 1962); Jones v.
Harmon, 175 Cal. App. 2d 869, 875, 1 Cal.
Rptr. 192 (2d Dist. 1959); City of
Hayward v. Mohr, 160 Cal. App. 2d 427,
432, 325 P.2d 209 (1st Dist. 1958);
Cortese v. U.S., 782 F.2d 845, 850 (9th
Cir. 1986).
In Johnson v. Ocean Shore Railroad Co.,
16 Cal. App. 3d 429, 434, 94 Cal. Rptr. 68
(1st Dist. 1971), the court refers to the
holding of an easement in "fee simple,"
which means that it is an interest that is
transferable and inheritable.
See 15:13 (methods of creating an
easement).
[FN11] See 11:1 (rules governing
priorities).
[FN12] Civ. Code, 2899; Merced
Security Sav. Bank v. Simon, 141 Cal. 11,
12, 74 P. 356 (1903). [However, the ability
to foreclose on a portion of real property
may be restricted by the Subdivision Map
Act. See 25:147.]
See 11:196 to 11:200 (marshalling of
assets).
[FN13] Concord & Bay Point Land Co. v.
City of Concord, 229 Cal. App. 3d 289,
295, 280 Cal. Rptr. 623 (1st Dist. 1991).
[FN14] Dolske v. Gormley, 58 Cal. 2d
513, 520-521, 25 Cal. Rptr. 270, 375 P.2d
174 (1962); Wing v. Forest Lawn
Cemetery Ass'n, 15 Cal. 2d 472, 484, 101
P.2d 1099, 130 A.L.R. 120 (1940); Masin
v. La Marche, 136 Cal. App. 3d 687, 695,
186 Cal. Rptr. 619 (2d Dist. 1982); Pacific
Gas & Elec. Co. v. Hacienda Mobile
Home Park, 45 Cal. App. 3d 519, 525-526,
119 Cal. Rptr. 559 (1st Dist. 1975);
Zimmer v. Dykstra, 39 Cal. App. 3d 422,
429, 114 Cal. Rptr. 380 (2d Dist. 1974);
Keith v. Superior Court, 26 Cal. App. 3d
521, 523-524, 103 Cal. Rptr. 314 (2d Dist.
1972); Donnell v. Bisso Brothers, 10 Cal.
App. 3d 38, 43-44, 88 Cal. Rptr. 645 (1st
Dist. 1970); Kosich v. Braz, 247 Cal. App.
2d 737, 739-740, 56 Cal. Rptr. 52 (1st
Dist. 1967); Goff v. Shaw, 223 Cal. App.
2d 174, 177-178, 35 Cal. Rptr. 595 (5th
Dist. 1963); Stickney v. Nemir, 221 Cal.
App. 2d 208, 210-211, 34 Cal. Rptr. 355
(4th Dist. 1963).
See 15:72 (remedies for interference
with the use of an easement), 15:66
(rights of easement owners).
[FN15] Los Angeles County Metropolitan
Transportation Authority v. Continental
Development Corp., 16 Cal. 4th 694, 714-
715, 66 Cal. Rptr. 2d 630, 941 P.2d 809
(1997); San Diego Gas & Electric Co. v.
Superior Court, 13 Cal. 4th 893, 942, 55
Cal. Rptr. 2d 724, 920 P.2d 669 (1996);
County of Fresno v. Shelton, 66 Cal. App.
4th 996, 1011-1012, 78 Cal. Rptr. 2d 272
(5th Dist. 1998), as modified, (Sept. 22,
1998); Contra Costa Water Dist. v.
Vaquero Farms, Inc., 58 Cal. App. 4th
883, 895, 68 Cal. Rptr. 2d 272 (1st Dist.
1997); Citizens for Responsible
Government v. City of Albany, 56 Cal.
App. 4th 1199, 1224-1227, 66 Cal. Rptr.
2d 102 (1st Dist. 1997); Moores v. Walsh,
38 Cal. App. 4th 1046, 1050, 45 Cal. Rptr.
2d 389, 103 Ed. Law Rep. 794 (1st Dist.
1995).
[FN16] See 8:5 (deeds; implied
covenants), 2:22 to 2:23 (marketable
title; liens and encumbrances), 7:60 (title
insurance; unrecorded easements).
[FN17] Civ. Code, 887.010.
See Witkin, 12 Summary of California L.,
382 (10th ed.); Cal. Jur. 3d, Easements
and Licenses in Real Property 1;
Restatement, Property, 450.
[FN18] See 15:6 (appurtenant
easements), 15:7 (easements in gross).
[FN19] Camp Meeker Water System, Inc.
v. Public Utilities Com., 51 Cal. 3d 845,
865, 274 Cal. Rptr. 678, 799 P.2d 758
(1990).
[FN20] Civ. Code, 805; Hare v. Craig,
206 Cal. 753, 755, 276 P. 336 (1929);
Leggio v. Haggerty, 231 Cal. App. 2d 873,
881, 42 Cal. Rptr. 400 (5th Dist. 1965);
San Pedro, L.A. & S.L.R. Co. v. Pillsbury,
23 Cal. App. 675, 680, 139 P. 669 (2d
Dist. 1914) (See, however, Beyer v. Tahoe
Sands Resort, 129 Cal.App.4th 1458, 29
Cal.Rptr.3d 561 (3d Dist. 2005) (court
held that by reverse analogy to the merger
doctrine, owners not having a full fee title
(both legal and equitable) to servient
property may validly create an easement
over property benefitting themselves).
See 15:75 (merger).
[FN21] Camp Meeker Water System, Inc.
v. Public Utilities Com., 51 Cal. 3d 845,
865, 274 Cal. Rptr. 678, 799 P.2d 758
(1990).
[FN22] Gordon v. Covina Irr. Co., 164
Cal. 88, 100, 127 P. 646 (1912); Kellett v.
Ida Clayton & G.W. Wagon-Road Co., 99
Cal. 210, 212, 33 P. 885 (1893) (right to
take tolls).
[FN23] City of Hayward v. Mohr, 160 Cal.
App. 2d 427, 430, 431, 432, 325 P.2d 209
(1st Dist. 1958).
[FN24] Wright v. Best, 19 Cal. 2d 368,
382, 121 P.2d 702 (1942) (easement to
pollute stream attached to an appropriative
water right as servient tenement); Southern
Pac. Co. v. Spring Val. Water Co., 173
Cal. 291, 296, 159 P. 865 (1916)
(easement to take water attached to water
system and pipeline as servient tenement);
Fudickar v. East Riverside Irr. Dist., 109
Cal. 29, 36, 41 P. 1024 (1895) (right to
take water from ditch and pipes is an
easement imposed on an estate in real
property, the interest in the canal and pipe
being an estate in real property); Balestra
v. Button, 54 Cal. App. 2d 192, 197, 128
P.2d 816 (3d Dist. 1942) (right to connect
into a telephone line is an easement, the
line and poles being real property).
[FN25] See 15:2 (licenses distinguished),
14:37 (party walls, rights and duties of
the parties).
695, 700, 701, 21 Cal. Rptr. 143 (5th Dist.
1962).

MILCALRE 15:5
Kenneth Styles

Easements
15:6. Appurtenant easements;

conveyance or encumbrance of the
dominant tenement
West's Key Number Digest, Easements 3,

16, 20
Classification of easements. Easements are

classified as either appurtenant or in
gross.[FN1] In both cases, the easement
imposes a burden on the land of another,
which is called the "servient
tenement."[FN2]
"Appurtenant" easement defined. An
appurtenant easement creates either a right
to use, or a right to restrict the use of, the
servient tenement for the use and benefit
of real property of the easement
owner.[FN3] The property benefited is
called the "dominant tenement."[FN4]
An easement may be appurtenant even
though it was not being used at the time it
was created.[FN5] The appurtenant
easement attaches only to the land of the
easement holder, and it cannot be extended
to benefit additional property that was not
a part of the dominant tenement at the time
the easement was created.[FN6]
Examples of appurtenant easements. The
Civil Code[FN7] lists the following
easements that can be appurtenant:
(1) Having a right of way;[FN8]
(2) Having the rights of pasture, fishing,
and taking game;[FN9]
(3) Taking water,[FN10] wood,[FN11]
minerals,[FN12] and other things;[FN13]
(4) Transacting business upon land;
(5) Conducting lawful sports upon
land;[FN14]
(6) Receiving air, light, or heat from or
over, or discharging the same on
land;[FN15]
(7) Receiving sunlight on or over the land
of another for any solar energy
system;[FN16]
(8) Flooding land;[FN17]
(9) Having water flow without diminution
or disturbance,[FN18] such as an easement
to discharge surface waters onto the land
of a neighbor other than by the natural
flow;[FN19]
(10) Using a wall as a party wall;[FN20] or
a division fence;[FN21]
(11) Receiving more than natural support
from adjacent land or things affixed
thereto;[FN22]
(12) Having public conveyances stop, or
precluding the same on land;
(13) Having a seat in church; and
(14) Having a right to burial.[FN23]
The easements listed in the code are not
exclusive. This statutory list of appurtenant
easements is not exclusive but merely
identifies certain easements that can be
made appurtenant. Other kinds of
easements also can be made appurtenant to
land.[FN24] As stated in one case, "The
novelty of the incident is no bar to its
recognition as an easement if its creation
violates no public policy."[FN25]
Distinction between appurtenant and in
gross easements; effect of a transfer. Many
types of easements that may be
appurtenant also may be in gross.[FN26]
The basic effect of the distinction between
appurtenant easements and easements in
gross arises when the owner of the
easement conveys his or her
property.[FN27]
When the deed conveying the dominant
tenement fails to describe the appurtenant
easement,[FN28] the easement remains
appurtenant to the dominant
tenement.[FN29] The conveyance of the
dominant tenement transfers all
appurtenant easements to the grantee as a
matter of law even though they are not
specifically mentioned in the deed.[FN30]
The appurtenant easement is transferred
with a conveyance of the dominant
tenement as a matter of law and therefore
there is no issue regarding the conveyance
without a writing under the statute of
frauds.[FN31] Therefore, successors of the
owner of the dominant tenement can
enforce the easement even though it is not
specifically mentioned in their
deeds.[FN32]
A right of way usually is incident to the
land and passes with it unless expressly
excepted by the terms of the
conveyance.[FN33]
Cannot be transferred separate from the
dominant tenement. An appurtenant
easement is a part of, and cannot be
transferred separate from, the dominant
tenement.[FN34] A purported conveyance
of the dominant tenement with a
reservation of the appurtenant easement to
the grantor is totally ineffective[FN35] as
an attempt to convert an appurtenant
easement into an easement in gross.[FN36]
Lien on dominant tenement is secured by
all appurtenant easements. A creditor that
acquires a lien on the dominant tenement
also acquires a lien on all appurtenant
easements.[FN37]
A deed of trust as security for an
obligation is secured by the real property
described, as well as by all appurtenances
to the described property, whether or not
they are specifically mentioned.[FN38] On
a default of the secured obligation, the
purchaser at the foreclosure sale receives
title to the described property and all
appurtenant easements.[FN39]
Similarly, when a judgment is enforced by
execution against the dominant tenement,
the execution-sale purchaser receives title
to the dominant tenement and all
easements appurtenant to it.[FN40]
[FN1] Civ. Code, 801, subd. (4), 802,

subd. (5). Continental Baking Co. v. Katz,
68 Cal. 2d 512, 521, 67 Cal. Rptr. 761, 439
P.2d 889 (1968); County Sanitation Dist.
v. Watson Land Co., 17 Cal. App. 4th
1268, 1278, 22 Cal. Rptr. 2d 117 (2d Dist.
1993), as modified, (Aug. 12, 1993);
Moylan v. Dykes, 181 Cal. App. 3d 561,
568, 226 Cal. Rptr. 673 (3d Dist. 1986).
[FN2] Civ. Code, 803. County Sanitation
Dist. v. Watson Land Co., 17 Cal. App. 4th
1268, 1278, 22 Cal. Rptr. 2d 117 (2d Dist.
1993), as modified, (Aug. 12, 1993);
568, 226 Cal. Rptr. 673 (3d Dist. 1986);
Cushman v. Davis, 80 Cal. App. 3d 731,
735, 145 Cal. Rptr. 791 (1st Dist. 1978).
[FN3] Camp Meeker Water System, Inc. v.
Public Utilities Com., 51 Cal. 3d 845, 867,
274 Cal. Rptr. 678, 799 P.2d 758 (1990);
City of Anaheim v. Metropolitan Water
Dist. of Southern Cal., 82 Cal. App. 3d
763, 767, 147 Cal. Rptr. 336 (4th Dist.
1978).
[FN4] Civ. Code, 662, 801, 803;
Wright v. Best, 19 Cal. 2d 368, 381, 121
P.2d 702 (1942); County Sanitation Dist.
v. Watson Land Co., 17 Cal. App. 4th
1268, 1278-1279, 22 Cal. Rptr. 2d 117 (2d
Dist. 1993), as modified, (Aug. 12, 1993);
568, 226 Cal. Rptr. 673 (3d Dist. 1986)
(citing text); City of Anaheim v.
Metropolitan Water Dist. of Southern Cal.,
82 Cal. App. 3d 763, 767, 147 Cal. Rptr.
336 (4th Dist. 1978); Cushman v. Davis,
80 Cal. App. 3d 731, 735, 145 Cal. Rptr.
791 (1st Dist. 1978); Leggio v. Haggerty,
231 Cal. App. 2d 873, 876, 42 Cal. Rptr.
400 (5th Dist. 1965); Bates v. Terry, 194
Cal. App. 2d 137, 144, 14 Cal. Rptr. 829
(2d Dist. 1961); City of Hayward v. Mohr,
160 Cal. App. 2d 427, 432, 325 P.2d 209
(1st Dist. 1958); Balestra v. Button, 54
Cal. App. 2d 192, 197, 128 P.2d 816 (3d
Dist. 1942).
See Restatement, Property, 453, 455,
456.
Public Utilities Com., 51 Cal. 3d 845, 867,
274 Cal. Rptr. 678, 799 P.2d 758 (1990);
City of Anaheim v. Metropolitan Water
Dist. of Southern Cal., 82 Cal. App. 3d
763, 767-768, 147 Cal. Rptr. 336 (4th Dist.
1978).
[FN6] See 15:55 (increased or changed
use).
[FN7] Civ. Code, 801.
[FN8] See 15:7 (easement in gross),
15:8 (determination as appurtenant
easement or easement in gross), 15:17
(right of way as easement or fee simple),
15:18 ("reservation" of an easement, or
"exception" of a fee simple).
[FN9] See, for example, Laux v. Freed, 53
Cal. 2d 512, 521, 2 Cal. Rptr. 265, 348
P.2d 873 (1960).
Also see Right created by private grant or
reservation to hunt or fish on another's
land, 49 A.L.R.2d 1395; Reservation in
grant of land of right to hunt and fish with
like right to the grantee, as limiting the
right of the grantee to actual owners of the
land, 32 A.L.R. 1533.
[FN10] Hemmerling v. Tomlev, Inc., 67
Cal. 2d 572, 575, 63 Cal. Rptr. 1, 432 P.2d
697 (1967); Duckworth v. Watsonville
Water & Light Co., 170 Cal. 425, 430-434,
150 P. 58 (1915) (appropriative water
rights).
An easement to take water may be
appurtenant or in gross. In Camp Meeker
Water System, Inc. v. Public Utilities
Com., 51 Cal. 3d 845, 274 Cal. Rptr. 678,
799 P.2d 758 (1990), the court found that
an easement to take water was appurtenant
based on the intent of the parties.
See 15:7 (easement in gross), 15:8
easement in gross), 17:25 (water rights
definitions and common law rights),
17:26 (regulation of water rights).
Also see Character of easement in respect
of water as one in gross or appurtenant, 89
A.L.R. 1187.
[FN11] See, for example, Yuba Conso.
230-232, 116 P. 712 (3d Dist. 1911).
See 17:31 (timber).
[FN12] See 17:21 (minerals), 17:22
(geothermal resources), 17:23 (oil and
gas).
[FN13] See 15:1 (profits distinguished).
In Morse v. Miller, 128 Cal. App. 2d 237,
248, 275 P.2d 545 (3d Dist. 1954), and
Bradley v. Frazier Park Playgrounds, 110
Cal. App. 2d 436, 441-443, 242 P.2d 958
(4th Dist. 1952), easements were created to
use common recreational facilities.
[FN15] See 15:9 (affirmative and
negative easements), 15:10 (easements
for light, air, or view), 15:11 (solar
easements), 17:28 (airspace; solar energy
systems).
[FN16] Civ. Code, 801, 801.5.
See 15:11 (solar easements), 17:28
(airspace; solar energy systems).
[FN17] See, for example, Nelson v.
Robinson, 47 Cal. App. 2d 520, 526, 118
P.2d 350 (3d Dist. 1941); Massetti v.
Madera Canal & Irrigation Co., 20 Cal.
App. 2d 708, 715, 68 P.2d 260 (3d Dist.
1937).
See 14:22 (flood waters).
[FN18] See 14:20 to 14:24 (discharge
of water).
[FN19] Hails v. Martz, 28 Cal. 2d 775,
778, 172 P.2d 52 (1946) (prescriptive
easement established on rural land);
Abbott v. Pond, 142 Cal. 393, 396-398, 76
P. 60 (1904) (prescriptive easement
established to discharge waste waters on
rural land); Hahn v. Curtis, 73 Cal. App.
2d 382, 389, 166 P.2d 611 (3d Dist. 1946)
(rural land-elements of prescription not
established); Los Angeles Brick & Clay
Products Co. v. City of Los Angeles, 60
Cal. App. 2d 478, 487, 141 P.2d 46 (2d
Dist. 1943) (urban land-elements of
prescription not established); Strehlow v.
Mothorn, 100 Cal. App. 692, 697, 280 P.
1021 (1st Dist. 1929) (prescriptive right
established on rural land).
See 14:21 (surface waters), 17:25
(water rightsdefinitions and common
law rights), 17:26 (regulation of water
rights).
[FN20] See 14:36 to 14:39 (party
walls).
[FN21] Civ. Code, 801, subd. (14).
See 14:40 (division fences).
[FN22] See 14:25 to 14:35 (subjacent
and lateral support).
[FN24] Laux v. Freed, 53 Cal. 2d 512,
522-525, 2 Cal. Rptr. 265, 348 P.2d 873
(1960) (dictum); Jersey Farm Co. v.
Atlanta Realty Co., 164 Cal. 412, 415, 129
P. 593 (1912) (right to maintain levee);
Goble v. Dotson, 203 Cal. App. 2d 272,
274, 21 Cal. Rptr. 769 (1st Dist. 1962)
(right to berth boats).
[FN25] Wright v. Best, 19 Cal. 2d 368,
382, 121 P.2d 702 (1942) (right to pollute
stream). However, more recent
environmental protection legislation may
affect a right to pollute a stream.
[FN26] See 15:7 (easements in gross).
[FN27] See 15:8 (determination as
appurtenant easement or easement in
gross).
[FN28] See 15:14 to 15:18 (express
grant or reservation), 15:19 to 15:26
(implied grant or reservation).
[FN29] Moylan v. Dykes, 181 Cal. App.
3d 561, 568-570, 226 Cal. Rptr. 673 (3d
Dist. 1986) (citing text).
[FN30] Civ. Code, 1084, 1104; Elliott
v. McCombs, 17 Cal. 2d 23, 31, 109 P.2d
329 (1941); Relovich v. Stuart, 211 Cal.
422, 428, 295 P. 819 (1931); Conaway v.
Toogood, 172 Cal. 706, 712, 158 P. 200
(1916); Franscioni v. Soledad Land &
Water Co., 170 Cal. 221, 224, 149 P. 161
(1915); Wolff v. Cloyne, 156 Cal. 746,
750, 106 P. 104 (1909); Tract
Development Services, Inc. v. Kepler, 199
Cal. App. 3d 1374, 1383, 246 Cal. Rptr.
469 (4th Dist. 1988) (appurtenant
easement implied by reference to
subdivision map transferred with
conveyance of dominant tenement without
reference); Moylan v. Dykes, 181 Cal.
App. 3d 561, 568-570, 226 Cal. Rptr. 673
(3d Dist. 1986) (a "conveyance of the
dominant tenement transfers all
appurtenant easements to the grantee, even
though the easements are not specifically
mentioned in the deeds. (Citations.) Thus,
omission of any mention of the easement
in the deeds . . . is inconsequential");
Ellison v. Ventura Port District, 80 Cal.
App. 3d 574, 578, 145 Cal. Rptr. 665 (2d
Dist. 1978); Cushman v. Davis, 80 Cal.
App. 3d 731, 735, 145 Cal. Rptr. 791 (1st
Dist. 1978); St. Louis v. DeBon, 204 Cal.
App. 2d 464, 466, 22 Cal. Rptr. 443 (1st
Dist. 1962); Sufficool v. Duncan, 187 Cal.
App. 2d 544, 549, 9 Cal. Rptr. 763 (4th
Dist. 1960) (easement created by
prescription); Shonafelt v. Busath, 66 Cal.
App. 2d 5, 14, 151 P.2d 873 (2d Dist.
1944) (easement created by prescription);
Balestra v. Button, 54 Cal. App. 2d 192,
199, 128 P.2d 816 (3d Dist. 1942) ("being
an easement appurtenant it followed the
land without necessity for any
conveyance"); A. Hamburger & Sons v.
Lemboeck, 20 Cal. App. 2d 565, 568-569,
67 P.2d 380 (2d Dist. 1937); Lemos v.
Farmin, 128 Cal. App. 195, 17 P.2d 148
(1st Dist. 1932) (easement created by
prescription).
3d 561, 571-572, 226 Cal. Rptr. 673 (3d
Dist. 1986).
3d 561, 568, 226 Cal. Rptr. 673 (3d Dist.
1986) (citing text).
[FN33] Conaway v. Toogood, 172 Cal.
706, 158 P. 200 (1916); Sufficool v.
Duncan, 187 Cal. App. 2d 544, 579, 9 Cal.
Rptr. 763 (4th Dist. 1960); Lemos v.
Farmin, 128 Cal. App. 195, 199, 17 P.2d
148 (1st Dist. 1932).
[FN34] Myers v. Berven, 166 Cal. 484,
489, 137 P. 260 (1913); City of Anaheim
v. Metropolitan Water Dist. of Southern
Cal., 82 Cal. App. 3d 763, 768, 147 Cal.
Rptr. 336 (4th Dist. 1978); Cushman v.
Davis, 80 Cal. App. 3d 731, 735, 145 Cal.
Rptr. 791 (1st Dist. 1978); Leggio v.
Haggerty, 231 Cal. App. 2d 873, 880, 42
Cal. Rptr. 400 (5th Dist. 1965); Buehler v.
Reilly, 157 Cal. App. 2d 338, 343, 321
P.2d 128 (2d Dist. 1958); Westlake v.
Silva, 49 Cal. App. 2d 476, 478, 121 P.2d
872 (1st Dist. 1942); Eastman v. Piper, 68
Cal. App. 554, 567-568, 229 P. 1002 (2d
Dist. 1924); Nilson v. Wahlstrom, 40 Cal.
App. 237, 239, 180 P. 358 (1st Dist. 1919).
See 15:60 (use by other persons, or for
additional property; subdivision of the
dominant tenement).
[FN35] Civ. Code, 1084.
[FN36] Leggio v. Haggerty, 231 Cal. App.
2d 873, 881, 42 Cal. Rptr. 400 (5th Dist.
1965).
See Westlake v. Silva, 49 Cal. App. 2d
476, 478, 121 P.2d 872 (1st Dist. 1942).
[FN37] See 10:16 (deed of trust;
property interests that are lienable),
10:17 (description of the premises).
[FN38] See 10:16 (property interests that
are lienable), 10:17 (description of the
premises).
[FN39] See 10:180 (purchaser's title).
[FN40] Civ. Code, 1084, 1104; Blum v.
Weston, 102 Cal. 362, 367, 36 P. 778
(1894).
See 32:69 to 32:71 (execution sales).

MILCALRE 15:6
Kenneth Styles
B. Definitions; Specific Types of Easements
15:7. Easement in gross
"Easement in gross" defined. An easement in

gross is a personal right to use the land of
another,[FN1] and as such it is an interest in
real property.[FN2] The property burdened by
an easement in gross is called the "servient
tenement." However, because the right does
not benefit any particular parcel of property,
there is no dominant tenement.[FN3]
Examples of easements in gross. The Civil
Code lists the following as easements that can
be in gross:[FN4]
(1) Having a right of way or the right of
pasture;[FN5]
(2) Fishing and taking game;[FN6]
(3) Having a seat in church;
(4) Having a right to burial;
(5) Taking rents and tolls;[FN7] and
(6) Taking water,[FN8] wood,[FN9]
minerals,[FN10] or other things.[FN11]
Other in gross easements. The above
easements are the traditional easements in
gross, but there are other rights to use the land
of another that are considered in gross
easements:
(1) A "conservation easement" to retain the
natural, scenic, historical, agricultural, forested,
or open-space condition of the land.[FN12]
The easement can be created by deed, will,
easement, covenant, condition, or restriction as
a perpetual limitation on the land and is not
personal in nature even though it may be
acquired by a qualified nonprofit organization.
The easement is an enforceable burden on the
land and therefore should be considered in
valuing the land for tax purposes.[FN13]
(2) Navigation easement across navigable
water.[FN14] The public has a navigation
easement across any navigable lake, stream, or
other water within the state even though the
land under the water is in private ownership.
The easement can be used by the public for
boating, bathing, and recreation.[FN15]
(3) Other in gross easements. The courts have
not determined whether the list of easements in
gross set forth in the Civ. Code is exclusive.
However, judicial language regarding the
nonexclusiveness of the statutory list of
appurtenant easements is broad enough to
apply equally to easements in gross,[FN16] and
the courts have recognized other types of in
gross easements, not expressly included within
the statutory list, such as utility
easements.[FN17]
Express conveyance required. Although an
easement in gross can be assigned, transferred,
and inherited,[FN18] it does not pass
automatically with a conveyance of real
property because it is not appurtenant to any
property. An owner of an easement in gross
intending to transfer the easement must do so
intentionally and expressly.[FN19]
[FN1] Buehler v. Oregon-Washington Plywood

Corp., 17 Cal. 3d 520, 527, 131 Cal. Rptr. 394,
551 P.2d 1226 (1976); Kripp v. Curtis, 71 Cal.
62, 65, 11 P. 879 (1886); County Sanitation
Dist. v. Watson Land Co., 17 Cal. App. 4th
1268, 1279, 22 Cal. Rptr. 2d 117 (2d Dist.
1993), as modified, (Aug. 12, 1993); Moylan v.
Dykes, 181 Cal. App. 3d 561, 568, 226 Cal.
Rptr. 673 (3d Dist. 1986); City of Anaheim v.
Metropolitan Water Dist. of Southern Cal., 82
Cal. App. 3d 763, 767, 147 Cal. Rptr. 336 (4th
Dist. 1978); Bates v. Terry, 194 Cal. App. 2d
137, 144, 14 Cal. Rptr. 829 (2d Dist. 1961);
Balestra v. Button, 54 Cal. App. 2d 192, 197,
128 P.2d 816 (3d Dist. 1942).
See Restatement, Property, 454.
[FN2] Balestra v. Button, 54 Cal. App. 2d 192,
197, 128 P.2d 816 (3d Dist. 1942) (an
easement in gross is not personal property).
383 (10th ed.).
[FN3] Civ. Code, 802; Wagner v. Hanna, 38
Cal. 111, 116, 1869 WL 730 (1869); County
Sanitation Dist. v. Watson Land Co., 17 Cal.
App. 4th 1268, 1279, 22 Cal. Rptr. 2d 117 (2d
Dist. 1993), as modified, (Aug. 12, 1993);
Salvaty v. Falcon Cable Television, 165 Cal.
App. 3d 798, 803, 212 Cal. Rptr. 31 (2d Dist.
1985) (telephone line easement); Cushman v.
Rptr. 791 (1st Dist. 1978); Balestra v. Button,
54 Cal. App. 2d 192, 197, 128 P.2d 816 (3d
Dist. 1942).
In McCann v. City of Los Angeles, 79 Cal.
1978), the court states "[t]he easement became
the dominant tenement and the land became the
servient tenement." The court cited Civ. Code,
803, which refers to appurtenant easements
rather than easements in gross.
[FN4] Civ. Code, 802; Gerhard v. Stephens,
68 Cal. 2d 864, 880, 69 Cal. Rptr. 612, 442
P.2d 692 (1968).
[FN5] See 15:6 (appurtenant easements),
15:8 (determination as appurtenant easement or
easement in gross).
easement in gross).
[FN7] See, for example, Kellett v. Ida Clayton
& G.W. Wagon-Road Co., 99 Cal. 210, 212, 33
P. 885 (1893).
easement in gross), 17:25 (water rights
definitions and common law rights), 17:26
(regulation of water rights).
easement in gross), 17:31 (timber).
easement in gross) 17:21 (minerals), 17:22
(geothermal resources), 17:23 (oil and gas).
[FN11] Civ. Code, 802. Some of these
examples of easements in gross are actually
"profits." See 15:1 (easements defined;
profits distinguished).
[FN12] Civ. Code, 815 to 816.
See 24:5 (covenants; environmental
restrictions).
[FN13] Civ. Code, 815.10.
[FN14] See 15:12 (public trust and
navigation easements on land adjacent to
water).
[FN15] Marks v. Whitney, 6 Cal. 3d 251, 259,
98 Cal. Rptr. 790, 491 P.2d 374, 3 Env't. Rep.
Cas. (BNA) 1437, 2 Envtl. L. Rep. 20049
(1971); People v. Sweetser, 72 Cal. App. 3d
278, 283, 140 Cal. Rptr. 82, 7 Envtl. L. Rep.
20653 (5th Dist. 1977); Hitchings v. Del Rio
Woods Recreation & Park Dist., 55 Cal. App.
3d 560, 566-571, 127 Cal. Rptr. 830, 6 Envtl.
L. Rep. 20363 (1st Dist. 1976); People ex rel.
Baker v. Mack, 19 Cal. App. 3d 1040, 1044-
1050, 97 Cal. Rptr. 448, 3 Env't. Rep. Cas.
(BNA) 1391, 1972 A.M.C. 1076, 2 Envtl. L.
Rep. 20026 (3d Dist. 1971); Bohn v. Albertson,
107 Cal. App. 2d 738, 742-757, 238 P.2d 128
(1st Dist. 1951).
See 15:12 (public trust and navigation
easements on land adjacent to water).
[FN16] See Wright v. Best, 19 Cal. 2d 368,
382, 121 P.2d 702 (1942).
conveyance or encumbrance of the dominant
tenement).
[FN17] Salvaty v. Falcon Cable Television,
165 Cal.App.3d 798, 803, 212 Cal.Rptr. 31 (2d
Dist. 1985).
[FN18] Civ. Code, 1044; Elliott v.
McCombs, 17 Cal. 2d 23, 32, 109 P.2d 329
(1941); Callahan v. Martin, 3 Cal. 2d 110, 121,
43 P.2d 788, 101 A.L.R. 871 (1935); Fudickar
v. East Riverside Irr. Dist., 109 Cal. 29, 37, 41
P. 1024 (1895); LeDeit v. Ehlert, 205 Cal. App.
2d 154, 166, 22 Cal. Rptr. 747 (1st Dist. 1962);
Collier v. Oelke, 202 Cal. App. 2d 843, 845-
847, 21 Cal. Rptr. 140 (4th Dist. 1962); Kasey
v. Molybdenum Corp. of America, 176 Cal.
App. 2d 346, 356, 1 Cal. Rptr. 393 (4th Dist.
1959).
[FN19] Fudickar v. East Riverside Irr. Dist.,
109 Cal. 29, 37, 41 P. 1024 (1895); St. Louis v.
DeBon, 204 Cal. App. 2d 464, 466, 22 Cal.
Rptr. 443 (1st Dist. 1962); Edgar v. Pensinger,
73 Cal. App. 2d 405, 411, 166 P.2d 354 (4th
Dist. 1946).
See also Restatement, Property, 489 to 492.

MILCALRE 15:7
Kenneth Styles
15:8. Determination as appurtenant

easement or easement in gross
Some easements may be either appurtenant

or in gross. Examples of easements that may
be either appurtenant or in gross, depending on
the intention of the parties and on the
circumstances surrounding its creation, include
a right of way;[FN1] the right to pasture; and
the right to take water,[FN2] wood, minerals,
or other things.[FN3]
Rules of interpretation; question of fact. The
determination of whether an easement is
appurtenant or in gross is made by reference to
the instrument creating it.[FN4] However, in
many cases the instrument itself may fail to
identify a dominant tenement, or to expressly
define the nature of the easement, and the
character of the easement cannot be determined
from the rights granted by the instrument of
creation.
A court that is required to determine whether
an easement is appurtenant or in gross applies
the general rules relating to the interpretation
of deeds. The court determines the intention of
the parties by interpreting the terms of the
instrument creating the easement.[FN5]
The court can look to the kinds of rights
conveyed and to the relationship between the
easement and other real property owned by the
grantee of the easement.[FN6] It can look to
extrinsic evidence to determine the nature of
the easement and to establish the dominant
tenement. "[W]hen the deed does not expressly
declare an easement to be appurtenant, or when
the language of the deed is ambiguous, and it
does not clearly appear whether an easement
was intended to be in gross or appurtenant to
land, evidence aliunde the document is
admissible to determine the nature of the
easement and to establish a dominant
tenement."[FN7]
An easement is presumed to be appurtenant.
The grant of a right of way can create either an
appurtenant easement or an easement in gross.
However, where the grant of an easement is
ambiguous and the intent of the grantor cannot
be ascertained, the law presumes that the
easement is appurtenant.[FN8] A court will not
find an easement to be in gross in any case
where it can be construed reasonably to be
appurtenant to another parcel of land.[FN9]
Relationship to other property. When the
easement is an appropriate and useful adjunct
to another parcel of land owned by the owner
of the easement, the courts generally have
concluded that it is an appurtenant
easement.[FN10] Thus, a court may construe
an easement as appurtenant even though the
dominant tenement is not adjacent to the
servient tenement. When a roadway easement
provides access to a particular parcel of real
property, the court is justified in concluding
that the easement is appurtenant to the property
served by the easement.[FN11]
Finding that the easement is appurtenant
when no dominant tenement identified. A
court may construe an easement to be
appurtenant even though it is not used[FN12]
or there is no dominant tenement at the time of
the conveyance.[FN13] When the deed does
not identify the dominant tenement to which
the easement is appurtenant, the court can
examine extrinsic evidence, such as the
testimony of the parties to the deed, the context
of the transaction in which the deed was given,
the physical location of the easement in
relation to other property, and the like, in order
to identify the dominant tenement.[FN14]
However, if the court finds that the owner of
the easement does not own any land to be
benefited by the easement, or that the parties
did not intend the easement to be appurtenant,
the court usually concludes that the easement is
in gross.[FN15]
Case Example: A prescriptive easement was
acquired to cross the servient tenement to reach
land for hunting. The court held that "although
[the users] leased government lands, they did
not own them; the easement, therefore, could
not be appurtenant to these lands."[FN16]
Case Example: The court found that a
telephone line easement reserved to the
telephone company's predecessor was in gross
because it was independent of any specific
property of the company.[FN17]
Case Example: An easement was created as a
right of way for trucks to remove logs from the
servient tenement and from properties owned
or controlled by the holder of the easement
"lying on various sides" of the servient
tenement. The owner of the easement acquired
licenses to remove logs from contiguous lands
surrounding the servient tenement, and then
licensed loggers to use the easement to remove
the logs from these other properties.
The court found that the easement agreement
was ambiguous. It held that the facts and
circumstances indicated that the parties did not
intend that the easement owner could license
third persons to use the easement, but that they
did intend that he could use the easement to
benefit other parcels of property for the
removal of logs, even though these properties
were acquired subsequently and were not
contiguous to the servient tenement.[FN18]
Nature of a roadway on partition. On
partition, any right of way given to a joint
owner over the land distributed to the other
cotenant would be appurtenant, absent an
express declaration to the contrary.[FN19]
Easement by necessity. By definition, an
easement created by necessity would be
appurtenant to the otherwise landlocked
parcel.[FN20]
Easement appurtenant to after-acquired
title. Although an easement can be appurtenant
to after-acquired property as a dominant
tenement by an express grant or
reservation,[FN21] it cannot arise by
implication.[FN22]
[FN1] Moylan v. Dykes, 181 Cal. App. 3d 561,

568, 226 Cal. Rptr. 673 (3d Dist. 1986) (citing
text).
tenement), 15:7 (easement in gross).
[FN2] See Character of easement in respect of
water as one in gross or appurtenant, 89 A.L.R.
1187.
[FN3] See 15:6 (appurtenant easements;
tenement), 15:7 (easement in gross).
text).
See 15:14 to 15:18 (express grant or
reservation).
text).
See 8:1 (interpretation of deeds), 1:59 to
1:64 (interpretation of contracts), 15:16
(express grant or reservation, rules of
construction), 15:18 ("reservation" of an
[FN6] See, for example, Wright v. Best, 19
Cal. 2d 368, 382, 121 P.2d 702 (1942); Elliott
v. McCombs, 17 Cal. 2d 23, 27-30, 109 P.2d
329 (1941); Moylan v. Dykes, 181 Cal. App.
3d 561, 569, 226 Cal. Rptr. 673 (3d Dist. 1986)
(citing text); St. Louis v. DeBon, 204 Cal. App.
2d 464, 466, 22 Cal. Rptr. 443 (1st Dist. 1962);
People By and Through Dept. of Public Works
v. Renaud, 198 Cal. App. 2d 581, 586, 17 Cal.
Rptr. 674 (5th Dist. 1961); Schofield v. Bany,
175 Cal. App. 2d 534, 537, 346 P.2d 891 (3d
Dist. 1959); W. C. Dillon & Co. v. Barton, 159
Cal. App. 2d 18, 20, 323 P.2d 462 (2d Dist.
1958); Balestra v. Button, 54 Cal. App. 2d 192,
196-198, 128 P.2d 816 (3d Dist. 1942);
Eastman v. Piper, 68 Cal. App. 554, 561, 229
P. 1002 (2d Dist. 1924); Nay v. Bernard, 40
Cal. App. 364, 366-368, 180 P. 827 (1st Dist.
1919); Gardner v. San Gabriel Valley Bank, 7
Cal. App. 106, 107-110, 93 P. 900 (2d Dist.
1907); Jones v. Deardorff, 4 Cal. App. 18, 24,
87 P. 213 (3d Dist. 1906).
[FN7] Continental Baking Co. v. Katz, 68 Cal.
2d 512, 523, 67 Cal. Rptr. 761, 439 P.2d 889
(1968); Wright v. Best, 19 Cal. 2d 368, 383,
121 P.2d 702 (1942); Elliott v. McCombs, 17
Cal. 2d 23, 29, 109 P.2d 329 (1941); Hopper v.
Barnes, 113 Cal. 636, 639, 45 P. 874 (1896);
Moylan v. Dykes, 181 Cal. App. 3d 561, 569,
226 Cal. Rptr. 673 (3d Dist. 1986); Leggio v.
Haggerty, 231 Cal. App. 2d 873, 878, 42 Cal.
Rptr. 400 (5th Dist. 1965); St. Louis v. DeBon,
204 Cal. App. 2d 464, 466, 22 Cal. Rptr. 443
(1st Dist. 1962); Schofield v. Bany, 175 Cal.
App. 2d 534, 536, 346 P.2d 891 (3d Dist.
1959); Eastman v. Piper, 68 Cal. App. 554,
568, 229 P. 1002 (2d Dist. 1924).
See 15:16 (express grant or reservation, rules
of construction).
[FN8] City of Anaheim v. Metropolitan Water
Dist. of Southern Cal., 82 Cal. App. 3d 763,
768, 147 Cal. Rptr. 336 (4th Dist. 1978) citing
Balestra v. Button, 54 Cal. App. 2d 192, 198,
128 P.2d 816 (3d Dist. 1942); Cushman v.
Rptr. 791 (1st Dist. 1978).
[FN9] Continental Baking Co. v. Katz, 68 Cal.
2d 512, 523, 67 Cal. Rptr. 761, 439 P.2d 889
(1968); Wright v. Best, 19 Cal. 2d 368, 383,
121 P.2d 702 (1942); Elliott v. McCombs, 17
Cal. 2d 23, 29, 109 P.2d 329 (1941); Hopper v.
Barnes, 113 Cal. 636, 639, 45 P. 874 (1896);
Moylan v. Dykes, 181 Cal. App. 3d 561, 569,
226 Cal. Rptr. 673 (3d Dist. 1986) (citing text);
Leggio v. Haggerty, 231 Cal. App. 2d 873,
879, 42 Cal. Rptr. 400 (5th Dist. 1965); St.
Louis v. DeBon, 204 Cal. App. 2d 464, 466, 22
Cal. Rptr. 443 (1st Dist. 1962); Eastman v.
Piper, 68 Cal. App. 554, 568, 229 P. 1002 (2d
Dist. 1924).
[FN10] Civ. Code, 662; Hopper v. Barnes,
113 Cal. 636, 640, 45 P. 874 (1896); Balestra
v. Button, 54 Cal. App. 2d 192, 196-198, 128
P.2d 816 (3d Dist. 1942); Jones v. Deardorff, 4
Cal. App. 18, 24, 87 P. 213 (3d Dist. 1906);
P. 1002 (2d Dist. 1924).
[FN11] Continental Baking Co. v. Katz, 68
Cal. 2d 512, 523, 67 Cal. Rptr. 761, 439 P.2d
889 (1968); Dixon v. Schermeier, 110 Cal.
582, 585, 42 P. 1091 (1895); Moylan v. Dykes,
181 Cal. App. 3d 561, 573, 226 Cal. Rptr. 673
(3d Dist. 1986); Welch v. Kai, 4 Cal. App. 3d
374, 378, 84 Cal. Rptr. 619 (1st Dist. 1970);
Kerr Land & Timber Co. v. Emmerson, 233
Cal. App. 2d 200, 225, 43 Cal. Rptr. 333 (1st
Dist. 1965); Jensen v. Ritter, 185 Cal. App. 2d
473, 478, 8 Cal. Rptr. 263 (3d Dist. 1960);
Kaynor v. Fisch, 103 Cal. App. 2d 832, 230
P.2d 418 (2d Dist. 1951).
[FN12] Stanislaus Water Co. v. Bachman, 152
Cal. 716, 724, 93 P. 858 (1908); Harper v.
Buckles, 19 Cal. App. 2d 481, 484-485, 65
P.2d 947 (4th Dist. 1937); Gardner v. San
Gabriel Valley Bank, 7 Cal. App. 106, 110-
111, 93 P. 900 (2d Dist. 1907).
[FN13] Civ. Code, 662; Elliott v. McCombs,
17 Cal. 2d 23, 29, 109 P.2d 329 (1941); Pollard
v. Rebman, 162 Cal. 633, 634, 124 P. 235
(1912); Hopper v. Barnes, 113 Cal. 636, 640,
45 P. 874 (1896); Moylan v. Dykes, 181 Cal.
App. 3d 561, 569-570, 226 Cal. Rptr. 673 (3d
Dist. 1986) (citing text); City of Anaheim v.
Metropolitan Water Dist. of Southern Cal., 82
Dist. 1978); Glass v. Gulf Oil Corp., 12 Cal.
App. 3d 412, 428, 432, 433, 96 Cal. Rptr. 902
(1st Dist. 1970); Leggio v. Haggerty, 231 Cal.
1965); St. Louis v. DeBon, 204 Cal. App. 2d
464, 466, 22 Cal. Rptr. 443 (1st Dist. 1962);
People By and Through Dept. of Public Works
v. Renaud, 198 Cal. App. 2d 581, 586, 17 Cal.
Rptr. 674 (5th Dist. 1961); Buehler v. Reilly,
157 Cal. App. 2d 338, 343, 321 P.2d 128 (2d
Dist. 1958); Eastman v. Piper, 68 Cal. App.
554, 567, 229 P. 1002 (2d Dist. 1924); Nilson
v. Wahlstrom, 40 Cal. App. 237, 239, 180 P.
358 (1st Dist. 1919).
[FN14] Moylan v. Dykes, 181 Cal. App. 3d
561, 569, 226 Cal. Rptr. 673 (3d Dist. 1986).
165 Cal. App. 3d 798, 803, 212 Cal. Rptr. 31
(2d Dist. 1985); LeDeit v. Ehlert, 205 Cal.
App. 2d 154, 167, 22 Cal. Rptr. 747 (1st Dist.
1962).
[FN16] LeDeit v. Ehlert, 205 Cal. App. 2d 154,
167, 22 Cal. Rptr. 747 (1st Dist. 1962).
165 Cal. App. 3d 798, 803, 212 Cal. Rptr. 31
(2d Dist. 1985).
[FN18] Kerr Land & Timber Co. v. Emmerson,
233 Cal. App. 2d 200, 225, 43 Cal. Rptr. 333
(1st Dist. 1965).
[FN19] See Rothschild v. Wolf, 20 Cal. 2d 17,
19, 123 P.2d 483, 154 A.L.R. 75 (1942); Parks
v. Gates, 186 Cal. 151, 156, 199 P. 40 (1921);
Blum v. Weston, 102 Cal. 362, 367, 36 P. 778
(1894); Porto v. Vosti, 136 Cal. App. 2d 395,
397, 288 P.2d 618 (1st Dist. 1955) (partition
denied).
Cf. Dierssen v. McCormack, 28 Cal. App. 2d
164, 168-171, 82 P.2d 212 (1st Dist. 1938),
where, on partition, the grantor reserved a
nonexclusive easement in an irrigation ditch
and the court permitted him to use the water on
the other property.
See 12:14 to 12:21 (partition).
[FN20] See 15:27 (requirements for creation;
common grantor).
[FN21] See 15:14 to 15:18 (creation of an
easement by express grant or reservation).
[FN22] Wright v. Best, 19 Cal. 2d 368, 384,
121 P.2d 702 (1942).
See 15:19 to 15:26 (implied grant or
reservation).
MILCALRE 15:8
Kenneth Styles
15:9. Affirmative and negative easements

Terms defined. Easements may be either
affirmative or negative. An affirmative
easement gives its owner a right to do
something on the land of another, such as a
right of way to pass over the other person's
land.
A negative easement gives the owner of the
easement the right to prevent another
landowner from using a part of his or her land
that is the servient tenement.[FN1] The Civil
Code includes a negative easement within its
description of a "restriction" on real property,
similar to a covenant, equitable servitude, or a
condition subsequent.[FN2]
An example of a negative easement would be
an easement for light and air or a solar
easement that prevents the construction of
improvements on the servient tenement,[FN3]
a power line easement that prevents the
construction of improvements below the power
lines,[FN4] or a conservation easement.[FN5]
Case Example: The court enforced a negative
easement provision in a deed that the grantee
would use the land conveyed as a public street
and not for building purposes.[FN6]
[FN1] Darr v. Lone Star Industries, Inc., 94
Dist. 1979) (right of use for two years held to
be an easement for a specified duration of
time); Wolford v. Thomas, 190 Cal. App. 3d
347, 356, 235 Cal. Rptr. 422 (1st Dist. 1987).
382 (10th ed.); Restatement, Property, 452.
P. 499 (1909) (agreement between adjoining
property owners that the building will not be
constructed within 15 feet of the property line
in order to leave space for light and air to
neighboring property).
See 15:10 (easement for light, air, or view),
15:11 (solar easements).
[FN4] Pacific Gas & Elec. Co. v. Minnette,
115 Cal. App. 2d 698, 701, 704, 252 P.2d 642
(3d Dist. 1953).
See 15:62 (use of a power line or other
overhead easement).
[FN5] Johnston v. Sonoma County
Agricultural Preservation & Open Space Dist.,
100 Cal. App. 4th 973, 976, 123 Cal. Rptr. 2d
226 (1st Dist. 2002), as modified, (Aug. 22,
2002).
[FN6] Weller v. Brown, 160 Cal. 515, 518-
521, 117 P. 517 (1911).
In Los Angeles Terminal Land Co. v. Muir,
136 Cal. 36, 4143, 68 P. 308 (1902), land was
conveyed by a deed that prohibited certain
commercial uses on the property conveyed.
The court held that an easement was not
created because there was no benefit nor right
given to use the land conveyed. The court did
not discuss the possibility of a negative
easement limiting the use of the servient
tenement.
MILCALRE 15:9
Kenneth Styles

Easements
15:10. Easements for light, air, or view

Nature of the easement. An easement for
light and air gives a property owner the
right to the unobstructed passage of light
and air across the land of a neighbor and,
in appropriate circumstances, also includes
the right to retain an unobstructed
view.[FN1]
Case Example: A property owner
conveyed an adjacent parcel by grant deed
reserving a perpetual easement to receive
light, air, and an unobstructed view over
that portion of the property conveyed as an
appurtenance to the property retained by
the grantor. In an action by a successor of
the grantor against a successor of the
grantee, the court enjoined the owner of
the servient tenement from erecting
television aerials and antennae on his roof.
The owner of the servient tenement argued
that the easement was created before
television was known, but the court found
that the purpose of the easement was to
"avoid any type of obstruction of the light,
air, and view without regard to the nature
thereof."[FN2]
Methods of creation. Generally, an
easement can be created by an express or
implied grant or reservation, or by
prescription,[FN3] but it can only be
created by a person who has a vested estate
in the servient tenement.[FN4] In
California, easements for light and air
ordinarily can be created only by an
express grant or reservation,[FN5] by an
agreement between property owners,[FN6]
or by the creation of an equitable servitude
by appropriate covenants and
restrictions.[FN7]
Case Example: Recorded tract restrictions
prohibited any "fence, wall or hedge over
six feet in height." The court awarded
damages to one property owner in the tract
against the neighbor who violated the
restrictions, and enjoined the neighbor
from future violations.[FN8]
Obstruction of light and air is not a
nuisance. An easement for light and air
may prevent the development of the
neighboring servient tenement, and is
therefore not favored by the law.[FN9] As
a general rule, a landowner has no natural
right to air, light, or an unobstructed
view.[FN10] With rare exceptions, the
obstruction of light, air, and view is not a
nuisance,[FN11] except that an
excessively high fence might be
considered a nuisance.[FN12] Generally, a
landowner cannot have an obstruction
enjoined as a private nuisance,[FN13] and
an individual may lack the special injury to
achieve standing to abate an obstruction as
a public nuisance.[FN14]
An easement for light and air cannot be
created by prescription. An easement for
light and air across the land of another
cannot be established by prescription. To
establish a prescriptive easement, the
servient tenement must be used in such a
manner that its owner has an opportunity
to prevent the use.[FN15] As a practical
matter, unless an improvement is
constructed on the servient tenement, the
owner of the servient tenement cannot
prevent the light and air from passing
across the land and cannot enjoin a
neighbor from receiving it. Therefore, an
easement for light and air cannot be
acquired by prescription merely because it
is used or enjoyed by the owner of the
dominant tenement.[FN16]
The easement cannot be created by
implication. Implied easements for light
and air generally are not recognized in
California.[FN17] In most circumstances,
when one person owns two adjoining
parcels of land, or subdivides one parcel,
all easements appurtenant at the time of
the conveyance are transferred to the
grantee.[FN18] At common law, when a
property owner conveyed a building with
windows that opened onto the land
retained by the grantor, the grantee
received an implied easement for light and
air. However, this doctrine of "ancient
lights" has been rejected in California, and
no implied easement for light and air is
created in favor of a grantee merely by a
transfer of property that faces the grantor's
retained land.[FN19]
However, it cannot be said that such
easements are never implied. Every person
owning property fronting on a street has
certain appurtenant easements that cannot
be obstructed, among which is "[t]he right
to receive light from the space occupied by
the street, and to the circulation of air
therefrom."[FN20]
Case Example: The city constructed a
pedestrian plaza adjacent to the owner's
property as part of a project for the
construction of a rapid transit subway. The
underground portions were utilized as
stations for transit facilities, and the
surface was used as access to the
underground facilities, as well as a
restricted pedestrian thoroughfare. The
owner proposed to construct an office
building that faced this plaza that provided
for pedestrian access from the plaza to the
building, as well as windows that faced on
the plaza. The city determined that the
owner was not entitled to these rights of
access for light and air, and it rejected the
owner's request for a building permit
unless he purchased these rights from the
city.
The court held that an area restricted for
public pedestrian traffic is a "street," and
the owner therefore held the normal
abutter's rights of a property owner
adjacent to a street. These rights include
private easements in the adjacent street,
including the right of ingress and egress
from his property to the public street, and
the right to receive light and air across the
adjacent street.[FN21]
Case Example: A switch tower for a
streetcar line was erected in front of the
property, and the court held that the
property owner could recover damages for
obstruction of the view, light, and
air.[FN22]
Case Example: A property owner
recovered damages for the diminution in
his property value caused by the extension
of his neighbor's building across a
sidewalk, which impaired his easement of
view from a public street.[FN23]
In other cases, property owners have
recovered severance damages caused to
the property by the change of the grade of
a highway, and by the construction of an
underpass in front of property that
deprived travelers of a view to the
property.[FN24]
The creation requires an agreement of
express intent. The creation of an easement
for light and air requires an express
agreement between the parties and is not
implied from an agreement between
coterminous owners that is not express.
Case Example: A property owner intended
to remodel a three-story building to
provide light, air, and view to the third
story. He asked his neighbor who owned a
two-story building whether the neighbor
intended to construct a third story on his
building. The neighbor said he did not and
gave the owner a letter granting permission
for the owner to enlarge the windows
overlooking the neighbor's property; this
letter was recorded. Thereafter, the
neighbor's successor constructed a third
story on his building. The court held that
the letter did not create an easement for
light, air, and view over the neighbor's
property because it did not use the term
"easement," did not give the owner any
rights to do any acts on the neighbor's
property, and did not limit the acts that the
neighbor could do on his property.[FN25]
Implied easement in favor of a tenant.
Under certain circumstances, a tenant may
receive an easement or a right to receive
unobstructed light and air as an
appurtenance to the leased premises. As a
general rule, a lease of property passes
with it by implication everything that is
reasonably necessary for the use and
enjoyment of the demised premises. Some
cases have suggested that this includes an
easement for light and air.[FN26]
Case Example: Property on both sides of
the leased premises was vacant when the
lease was executed. The landlord
subsequently constructed new buildings on
each side of the leased premises that
blocked the tenant's windows. The court
stated, by dictum, that the implied
easements that are created in favor of a
tenant are exceptions to the rule that there
are no implied easements of light and air,
but it held that the loss of light and air did
not render the leasehold untenantable and,
therefore, the tenant did not have any
implied rights to light and air.[FN27]
Case Example: A tenant claimed an
implied easement in an alley and patio for
light, air, display windows, and customer
traffic. The alley and patio were shown to
the tenant on the plans for the construction
of the leased property and were used prior
to the lease. The court granted the tenant
the right to use the alley and patio for
customers and window displays, but it also
indicated that the tenant may be able to
protect his rights to light and air.[FN28]
Effect of fence, building height, and
setback ordinances. A property owner does
not have any rights regarding the location
of improvements on adjacent property in
the absence of an easement or enforceable
restriction, and an adjacent owner has no
remedy for the construction of
improvements on neighboring property
that exceed height and side yard
restrictions required by the building code
because the code does not give any
property rights in adjacent property. State
and local laws that establish limitations on
the height of fences[FN29] do not create
an implied easement for light and air in
favor of property owners, nor do they
preclude a neighbor from enjoining a
violation if it also constitutes a
nuisance.[FN30] Similarly, setback lines
required by statute do not confer any rights
to an adjoining landowner to protect the
receipt of light and air.[FN31]
Case Example: Though not an easement
right, neighboring landowners may have
the right to enforce building height or view
restrictions contained in covenants,
conditions and restrictions ("CC&Rs").
Plaintiffs filed suit against neighboring
land owners who were adding a one-story
addition to their home. The plaintiffs
alleged that the addition would obscure
their view of the ocean and violate the
CC&Rs, which restricted the height of
fences, hedges, trees, or other landscaping,
"or any structures erected that may at
present or in the future obstruct the view
from any other lot." The defendants argued
that this language only applied to
landscaping, and that building renovations
were addressed in a separate paragraph of
the CC&Rs. In a 2-1 decision, the court
ruled that the one-story addition violated
the CC&Rs to the extent it "unreasonably"
obstructed the plaintiff's view.[FN32]
Case Example: A landowner filed an
action against the city for damages
resulting from the issuance of a building
permit to the adjacent owners that
permitted the adjacent owners to construct
improvements in violation of the city's
sideyard setback requirements. The court
held that a property owner does not have
any rights regarding the location of
improvements on adjacent property in the
absence of an easement or enforceable
restriction.[FN33]
Case Example: An owner filed an action
for damages for the construction of
improvements on neighboring property
that exceeded height and sideyard
restrictions of the building code. The court
held that the owner could not recover
damages because the code does not create
property rights in adjacent property. The
city does not incur liability merely because
its action causes a diminution in the value
of the owner's property.[FN34]
Purchase of air rights. An air easement
may be condemned around an airport to
eliminate structures and vegetation that
may be hazardous to the operation of the
airport.[FN35] Also, by local ordinance in
some cities a property owner can purchase
air rights from a neighbor and thereby
increase the possible density of use of his
or her own property. In addition, a city or
county may acquire an open space
easement by dedication for park or other
public purposes.[FN36]
An ordinance can provide protection for
light and air. A local government can enact
an ordinance that grants private property
owners the right to protect views and light
to their property by regulating tree growth
as a valid exercise of its police
power.[FN37]
Case Example: A city ordinance enacted to
preserve views and sunlight, granted
property owners the right to preserve and
to seek restoration of views or sunlight that
existed at any time since they purchased or
occupied their property, when the views or
sunlight are from the primary living or
active use areas and have subsequently
been unreasonably obstructed by the
growth of trees. An owner who purchased
property in 1990, alleged that the neighbor
who had purchased in 1978 had permitted
trees on his property to grow and obstruct
the views from the owner's property. He
filed an action for an order compelling the
neighbor to restore the views.
The court held that the ordinance has the
peripheral effect of preserving healthy
conditions and enhancing safety, but these
effects are incidental to the primary goal of
preserving the aesthetics of light and
views. The police power includes
advancing aesthetic values.[FN38] For
example, height limitations on buildings
and fences or other building restrictions
are valid to preserve light and
views.[FN39] It also is permissible to
preserve the character of a neighborhood.
The ordinance, therefore, is not a violation
of substantive due process and is a valid
exercise of the police power to preserve
views and sunlight, and the prevention of
obstruction by trees bears a reasonable
relationship to the achievement of these
goals. Local governments may regulate
land uses and land for scenic beauty and
use of natural resources,[FN40] and they
commonly regulate many aspects of
property that affect views and light, such
as height limits, set backs, square footage,
lot size, and open space, without
compliance with state easement
law.[FN41] The general law of easements
does not apply to easements incidentally
created by an ordinance that is otherwise a
valid exercise of the police power, and this
exercise of police power is neither
arbitrary nor unreasonable.[FN42]
Enforcement. Regardless of how it may
have been created, an enforceable
easement for light and air may be enforced
by an injunction, or the owner of the
easement can collect damages from the
owner of the servient tenement who has
obstructed the light, air, and view.[FN43]
If the easement benefits more than one
parcel as dominant tenement, in
appropriate cases the easement may be
apportioned among the several dominant
tenements.[FN44]
[FN1] Regarding a property owner's rights

in the airspace above his or her land, and
avigation easements (the right to fly across
the property of another), see 17:28
(airspace; solar energy systems), and
Drennen v. County of Ventura, 38 Cal.
App. 3d 84, 86, 112 Cal. Rptr. 907 (2d
Dist. 1974).
Regarding easements for light and air in
general, see Right to injunction to protect
easement of light and air, 93 A.L.R. 1180;
Rule of visible easements as applied to
easement of light or air, 56 A.L.R. 1138;
Witkin, 12 Summary of California L.,
388, 396 (10th ed.).
[FN2] Petersen v. Friedman, 162 Cal. App.
2d 245, 247, 328 P.2d 264 (1st Dist. 1958).
[FN3] See 15:13 (methods of creation).
[FN5] Civ. Code, 662, 801. Bryan v.
Grosse, 155 Cal. 132, 136, 99 P. 499
(1909); Kennedy v. Burnap, 120 Cal. 488,
491, 52 P. 843 (1898) (dicta); Herbert v.
Russell, 1 Cal. App. 3d 63, 66, 81 Cal.
Rptr. 448 (1st Dist. 1969); Katcher v.
Home Sav. and Loan Ass'n, 245 Cal. App.
2d 425, 429, 53 Cal. Rptr. 923 (2d Dist.
1966); Petersen v. Friedman, 162 Cal.
App. 2d 245, 248, 328 P.2d 264 (1st Dist.
1958); Clark v. Mountain States Life Ins.
Co., 1 Cal. App. 2d 301, 304, 36 P.2d 848
(2d Dist. 1934).
See Express easements of light, air, and
view, 142 A.L.R. 467; Right to injunction
to protect easement of light and air, 93
A.L.R. 1180.
[FN6] Knoch v. Haizlip, 163 Cal. 146,
149, 124 P. 998 (1912); Bryan v. Grosse,
155 Cal. 132, 136, 99 P. 499 (1909). But
see Heimburge v. State Guaranty Corp.,
116 Cal. App. 380, 385-388, 2 P.2d 998
(4th Dist. 1931).
[FN7] See 24:4 (equitable servitudes;
types of enforceable restrictions).
[FN8] Mock v. Shulman, 226 Cal. App. 2d
263, 268-272, 38 Cal. Rptr. 39 (2d Dist.
1964).
See 14:40 (division fences), 22:10
(nuisance; obstruction of light and air).
[FN9] See e.g., Posey v. Leavitt, 229 Cal.
App. 3d 1236, 1249-1250, 280 Cal. Rptr.
568 (4th Dist. 1991); Wolford v. Thomas,
190 Cal. App. 3d 347, 356, 235 Cal. Rptr.
422 (1st Dist. 1987); Pacifica
Homeowners' Assn. v. Wesley Palms
Retirement Community, 178 Cal. App. 3d
1147, 1152, 224 Cal. Rptr. 380 (4th Dist.
1986); Katcher v. Home Sav. and Loan
Ass'n, 245 Cal. App. 2d 425, 430, 53 Cal.
Rptr. 923 (2d Dist. 1966).
[FN10] Posey v. Leavitt, 229 Cal. App. 3d
1236, 1249-1250, 280 Cal. Rptr. 568 (4th
Dist. 1991); Noronha v. Stewart, 199 Cal.
App. 3d 485, 492, 245 Cal. Rptr. 94 (2d
Dist. 1988); Wolford v. Thomas, 190 Cal.
App. 3d 347, 356, 235 Cal. Rptr. 422 (1st
Dist. 1987); Pacifica Homeowners' Assn.
v. Wesley Palms Retirement Community,
178 Cal. App. 3d 1147, 1152, 224 Cal.
Rptr. 380 (4th Dist. 1986) (citing text);
Venuto v. Owens-Corning Fiberglas Corp.,
22 Cal. App. 3d 116, 127, 99 Cal. Rptr.
350, 3 Env't. Rep. Cas. (BNA) 1852 (1st
Dist. 1971); Taliaferro v. Salyer, 162 Cal.
App. 2d 685, 690, 328 P.2d 799 (1st Dist.
1958).
[FN11] Posey v. Leavitt, 229 Cal. App. 3d
1236, 1249-1250, 280 Cal. Rptr. 568 (4th
Dist. 1991); Wolford v. Thomas, 190 Cal.
App. 3d 347, 356, 235 Cal. Rptr. 422 (1st
Dist. 1987); Venuto v. Owens-Corning
Fiberglas Corp., 22 Cal. App. 3d 116, 127,
99 Cal. Rptr. 350, 3 Env't. Rep. Cas.
(BNA) 1852 (1st Dist. 1971).
[FN12] See 14:40 (division fences),
22:10 (nuisance; obstruction of light and
air).
[FN13] Pacifica Homeowners' Assn. v.
Wesley Palms Retirement Community,
178 Cal. App. 3d 1147, 1152, 224 Cal.
Rptr. 380 (4th Dist. 1986); Wolford v.
Thomas, 190 Cal. App. 3d 347, 358-359,
235 Cal. Rptr. 422 (1st Dist. 1987);
Venuto v. Owens-Corning Fiberglas Corp.,
22 Cal. App. 3d 116, 127, 99 Cal. Rptr.
350, 3 Env't. Rep. Cas. (BNA) 1852 (1st
Dist. 1971); Taliaferro v. Salyer, 162 Cal.
App. 2d 685, 690, 328 P.2d 799 (1st Dist.
1958).
[FN14] Civ. Code, 3493; Venuto v.
Owens-Corning Fiberglas Corp., 22 Cal.
App. 3d 116, 127, 99 Cal. Rptr. 350, 3
Env't. Rep. Cas. (BNA) 1852 (1st Dist.
1971).
See 22:19 (injunction of a private
nuisance), 22:26 (private remedies for a
public nuisance).
[FN15] See 15:29 (prescriptive
easements; elements and requirements).
[FN16] Western Granite & Marble Co. v.
Knickerbocker, 103 Cal. 111, 113, 37 P.
192 (1894); Clark v. Mountain States Life
Ins. Co., 1 Cal. App. 2d 301, 304, 36 P.2d
848 (2d Dist. 1934); Yuba Conso.
232, 116 P. 712 (3d Dist. 1911) (dicta).
See Pacific Gas & Elec. Co. v. Peterson,
270 Cal. App. 2d 434, 437, 75 Cal. Rptr.
673 (5th Dist. 1969).
[FN17] Bryan v. Grosse, 155 Cal. 132,
136, 99 P. 499 (1909); Pacifica
1147, 1152, 224 Cal. Rptr. 380 (4th Dist.
1986); Katcher v. Home Sav. and Loan
Ass'n, 245 Cal. App. 2d 425, 429, 53 Cal.
Rptr. 923 (2d Dist. 1966); Clark v.
Mountain States Life Ins. Co., 1 Cal. App.
2d 301, 304, 36 P.2d 848 (2d Dist. 1934).
[FN18] See 15:6 (appurtenant
easements); 15:19 to 15:26 (implied grant
or reservation).
[FN19] Kennedy v. Burnap, 120 Cal. 488,
490, 52 P. 843 (1898); Ingwersen v. Barry,
118 Cal. 342, 343, 50 P. 536 (1897);
Western Granite & Marble Co. v.
Knickerbocker, 103 Cal. 111, 113, 37 P.
192 (1894); Venuto v. Owens-Corning
Fiberglas Corp., 22 Cal. App. 3d 116, 127,
99 Cal. Rptr. 350, 3 Env't. Rep. Cas.
(BNA) 1852 (1st Dist. 1971); Katcher v.
Home Sav. and Loan Ass'n, 245 Cal. App.
2d 425, 429, 53 Cal. Rptr. 923 (2d Dist.
1966); Taliaferro v. Salyer, 162 Cal. App.
2d 685, 691, 328 P.2d 799 (1st Dist.
1958); Clark v. Mountain States Life Ins.
Co., 1 Cal. App. 2d 301, 304, 36 P.2d 848
(2d Dist. 1934).
[FN20] Williams v. Los Angeles Ry. Co.,
150 Cal. 592, 595, 89 P. 330 (1907). The
court enjoined defendant from installing a
switch tower on the street in front of
plaintiff's property.
See Kitzman v. Newman, 230 Cal. App.
2d 715, 722-724, 41 Cal. Rptr. 182 (2d
Dist. 1964).
See also 17:28 (airspace; solar energy
systems).
Also Easement of view from public street,
90 A.L.R. 793.
[FN21] Short Line Associates v. City and
County of San Francisco, 78 Cal. App. 3d
50, 55, 143 Cal. Rptr. 921 (1st Dist. 1978).
[FN22] Williams v. Los Angeles Ry. Co.,
150 Cal. 592, 593-595, 89 P. 330 (1907).
[FN23] Kitzman v. Newman, 230 Cal.
App. 2d 715, 722-724, 41 Cal. Rptr. 182
(2d Dist. 1964).
[FN24] People v. Ricciardi, 23 Cal. 2d
390, 395-399, 144 P.2d 799 (1943); Rose
v. State, 19 Cal. 2d 713, 727-730, 123 P.2d
505 (1942); United Cal. Bank v. People ex
rel. Dept. Pub. Wks., 1 Cal. App. 3d 1, 6,
7, 81 Cal. Rptr. 405 (2d Dist. 1969).
[FN25] Wolford v. Thomas, 190 Cal. App.
3d 347, 354, 235 Cal. Rptr. 422 (1st Dist.
1987).
[FN26] See 15:25 (lease of part of
property), 19:27 (appurtenances; implied
easements), 19:155 (duty to post
emergency procedures), 19:114 (use of
the common areas).
[FN27] Clark v. Mountain States Life Ins.
Co., 1 Cal. App. 2d 301, 304, 36 P.2d 848
(2d Dist. 1934).
[FN28] Owsley v. Hamner, 36 Cal. 2d
710, 716-720, 227 P.2d 263, 24 A.L.R.2d
112 (1951).
[FN29] See 14:40 (division fences).
[FN30] Ingwersen v. Barry, 118 Cal. 342,
343, 50 P. 536 (1897); Taliaferro v. Salyer,
162 Cal. App. 2d 685, 690, 328 P.2d 799
(1st Dist. 1958); Haehlen v. Wilson, 11
Cal. App. 2d 437, 440, 54 P.2d 62 (3d
Dist. 1936).
In some cases an excessively high fence
might be considered a nuisance.
See 14:40 (division fences), 22:10
(nuisance; obstruction of light and air).
[FN31] Fulilar v. City of Irwindale, 760 F.
Supp. 164, 166 (C.D. Cal. 1991);
Taliaferro v. Salyer, 162 Cal. App. 2d 685,
689, 328 P.2d 799 (1st Dist. 1958).
[FN32] Zabrucky v. McAdams, 129 Cal.
App. 4th 618, 28 Cal. Rptr. 3d 592 (2d
Dist. 2005).
[FN33] Fulilar v. City of Irwindale, 760 F.
Supp. 164, 166 (C.D. Cal. 1991).
[FN34] Taliaferro v. Salyer, 162 Cal. App.
2d 685, 328 P.2d 799 (1st Dist. 1958).
[FN35] Pub. Util. Code, 21652.
See 17:28 (airspace; solar energy
systems).
[FN36] Gov. Code, 51075 et seq.
[FN37] Kucera v. Lizza, 59 Cal. App. 4th
1141, 11481149, 69 Cal. Rptr. 2d 582
(1st Dist. 1997).
[FN38] Members of City Council of City
of Los Angeles v. Taxpayers for Vincent,
466 U.S. 789, 805, 104 S. Ct. 2118, 80 L.
Ed. 2d 772 (1984); Ehrlich v. City of
Culver City, 12 Cal. 4th 854, 886, 50 Cal.
Rptr. 2d 242, 911 P.2d 429 (1996).
See Miller & Starr, California Real Estate
Digest 3d, Adjoining Landowners 3, 4;
Miller & Starr, California Real Estate
Digest 3d, Constitutional Law 69; Miller
& Starr, California Real Estate Digest 3d,
Nuisances 15; West's Key Number
Digest, Constitutional Law 81; West's Key
Number Digest, Counties 21.5; West's Key
Number Digest, Eminent Domain 2(1.1);
West's Key Number Digest, Municipal
Corporations 57, 65, 592(1); West's Key
Number Digest, Zoning and Planning 14,
27, 36, 65, 68, 76, 80.5.
[FN39] See Ross v. City of Rolling Hills
Estates, 192 Cal. App. 3d 370, 374, 238
Cal. Rptr. 561 (2d Dist. 1987); Pacifica
1147, 1152, 224 Cal. Rptr. 380 (4th Dist.
1986).
[FN40] Gov. Code, 65850.
[FN41] See, e.g., the Solar Shade Control
Act. Pub. Resources Code, 25980 to
25986.
[FN42] Kucera v. Lizza, 59 Cal. App. 4th
1141, 1150-1151, 69 Cal. Rptr. 2d 582 (1st
Dist. 1997).
[FN43] Knoch v. Haizlip, 163 Cal. 146,
153, 124 P. 998 (1912) (damages);
Williams v. Los Angeles Ry. Co., 150 Cal.
592, 596, 89 P. 330 (1907) (injunction);
Mock v. Shulman, 226 Cal. App. 2d 263,
269, 38 Cal. Rptr. 39 (2d Dist. 1964)
(damages and injunction); Petersen v.
Friedman, 162 Cal. App. 2d 245, 248, 328
P.2d 264 (1st Dist. 1958) (injunction).
See also Right to injunction to protect
easement of light and air, 93 A.L.R. 1180;
Interference with easement of light, air, or
view by structure in street or highway as
ground for injunction at instance of
abutting owner, 40 A.L.R. 1321.
[FN44] Herbert v. Russell, 1 Cal. App. 3d
63, 66, 81 Cal. Rptr. 448 (1st Dist. 1969)
(servient tenement owner acquired one of
the two benefited dominant tenements).

MILCALRE 15:10
Kenneth Styles
C. Methods of Creating an Easement

1. Methods of Creation
15:13. Description of methods of creation
There are various methods of creating an

easement. An easement may be created by (1)
an express grant, (2) an express reservation, (3)
an implied grant, (4) an implied reservation, (5)
necessity, (6) prescription, (7) a recorded
covenant, (8) dedication, (9) condemnation,
(10) estoppel, or (11) a court decision (e.g., an
"equitable easement" arising from a balancing
of hardships). There are no other recognized
methods for creating an easement on the land
of another.
Express creation. An easement can be created
or conveyed expressly by any instrument that
transfers an interest or estate in real
property.[FN1] It can be created by a deed,
will, agreement, or recorded covenant.[FN2]
Creation by implication. Easements arise by
implication under various circumstances when
the trier of fact concludes that the parties
intended to create an easement even though
they failed to establish the easement expressly.
This implication usually arises in
circumstances where there has been a sale of a
portion of the property held by the
grantor.[FN3] However, in certain cases an
easement may arise by implication when a
property owner leases a portion of his or her
property and it is determined as a question of
fact that certain easements are granted to the
tenant by implication because they are
reasonably essential to the tenant's enjoyment
of the premises.[FN4]
Creation by grant or reservation. When
easements are created expressly or by
implication, the easement may arise either by a
grant to the grantee or by reservation to the
grantor. An easement is created by grant when
the owner of the servient tenement conveys the
easement to another. An easement is created by
reservation when the landowner conveys the
servient tenement and retains the use of the
easement across the property conveyed.[FN5]
A reserved easement can be either appurtenant
or in gross,[FN6] but in most cases, where the
reservation is implied, the easement is
appurtenant.[FN7]
Easement by prescription or common law
dedication. When the person claiming the
easement can establish the requisite facts, an
easement in favor of an individual can arise by
prescription,[FN8] and an easement for the
benefit of the public can arise by common law
dedication,[FN9] resulting from the use of the
easement over an extended period of time.
Other methods of creation. An easement may
be created along a common boundary where
the parties have accepted a boundary fence as
the true boundary line, even though it is not
located on the actual boundary.[FN10] In some
cases, an easement is recognized by the court
because of necessity when property is
landlocked.[FN11] A person may be estopped
to deny that another person has an easement
across land,[FN12] or a court in equity may
conclude that a party has an easement by
balancing the relative hardships of the
parties.[FN13] A landowner also can create an
easement in favor of the public by statutory
dedication,[FN14] and a public agency can
condemn an easement for public
purposes.[FN15]
The use of an easement may depend on how
it was created. Regardless of the method of
creation, there are certain general rules
regarding the extent to which the owner of the
easement can use the easement, or change or
increase its use, or change the location of its
use, which are applicable to most
easements.[FN16] In addition, however, there
are specific rules regarding the location and use
of easements that modify the general rules,
depending on the method by which the
easement was created.[FN17]
Third person cannot challenge the existence
or use of the easement. Whether an easement
has been created, and the permissible use of the
easement, are issues between the owner of the
easement and the owner of the servient
tenement. A third person does not have
standing to challenge whether a person holds
an easement, or the extent of permitted use of
an easement, that crosses over the land of
another person.[FN18]
[FN1] See 15:14 to 15:18 (express grant or

reservation).
[FN2] See 15:42 (recorded covenant), 24:4
(equitable servitudes; types of enforceable
restrictions), 24:9 (equitable servitudes,
creation generally).
[FN3] See 15:19 to 15:26 (implied grant or
reservation).
[FN4] See 19:27 (appurtenances; implied
easements).
[FN5] See 15:16 (express grant or
reservation, rules of construction), 15:17
(right of way as easement or fee simple),
15:18 ("reservation" of an easement, or
"exception" of a fee simple), 15:24 (implied
reservation to the grantor).
Also see Cal. Jur. 3d, Easements and Licenses
in Real Property 18 to 27; Witkin, 12
Summary of California L., 388 to 406 (10th
ed.).
[FN6] Elliott v. McCombs, 17 Cal. 2d 23, 32,
109 P.2d 329 (1941) (in gross); Myers v.
Berven, 166 Cal. 484, 487489, 137 P. 260
(1913) (appurtenant).
tenement), 15:7 (easement in gross), 15:8
easement in gross).
[FN7] See 15:19 to 15:26 (implied grant or
reservation).
[FN8] See 15:29 to 15:41 (prescription).
[FN9] See 15:43 (easement by dedication),
26:3 to 26:21 (common law dedication).
[FN10] See 14:1 to 14:8 (boundaries by
agreement).
[FN11] See 15:27 (easement by necessity;
requirements for creation; common grantor),
15:28 (requirement of strict necessity).
[FN12] See 15:45 (estoppel; executed oral
conveyance).
[FN13] See 15:46 (balancing of the
hardships).
[FN14] See 15:43 (easement by dedication),
26:22 to 26:25 (statutory dedication).
[FN15] See 15:44 (condemnation).
[FN16] See 15:54 to 15:62 (use of
easements).
easements), 15:54 to 15:62 (use of
easements).
[FN18] Moylan v. Dykes, 181 Cal. App. 3d
561, 573, 226 Cal. Rptr. 673 (3d Dist. 1986).

MILCALRE 15:13
Kenneth Styles

2. Express Grant or Reservation
15:14. Requirements for creation; security

for liens

An easement is within the statute of frauds.

An easement is an interest in real property, and
the creation and transfer of an easement is
within the statute of frauds.[FN1] The creation
or transfer of an easement must comply with
the requirements of an instrument to convey
real property.[FN2] An express easement can
only be created and conveyed by a grant or
quitclaim deed[FN3] that satisfies the
requirements of a transfer of real
property,[FN4] or by an oral agreement that is
substantially performed by the grantee
("executed oral agreement").[FN5]
Creation by contract. An easement may be
created and transferred by an instrument other
than a deed.[FN6] Any document that indicates
an intent by one party to establish a right to use
his or her property by another party establishes
an easement.[FN7] An express easement
usually is created by deed, but a contract
between property owners can establish an
easement in favor of one property owner to use
or to prevent the use of a neighbor's property,
even though it does not contain formal words
of conveyance.[FN8]
Adjoining landowners may create reciprocal
easements across their respective properties by
mutual agreement, by the terms of a lease, or
by reference to a recorded map.[FN9]
An easement may be created by a partition
decree between joint landowners.[FN10]
Requirements of the instrument of creation.
The instrument creating the easement must
contain the names of both the grantor and the
grantee (or other words sufficient to identify
the grantee).[FN11]
Generally, the document must include a
description that adequately identifies the
servient tenement.[FN12] The description may
be adequate by reference to a recorded map or
other recorded document that contains an
adequate description.[FN13] A recorded
document that does not describe the servient
tenement does not constitute constructive
notice,[FN14] but where a grantor owns two
parcels of adjacent property, on a conveyance
of one parcel that fails to identify the servient
tenement, the court may infer that the easement
burdened the property retained by the
grantor.[FN15]
Recordation not required. The deed or
contract creating the easement need not be
recorded,[FN16] but an easement created by an
unrecorded document may not be enforceable
against a bona fide purchaser of the servient
tenement.[FN17]
Comment: A subsequent purchaser or
encumbrancer of the servient tenement is
subject to any unrecorded easements that are
disclosed by a view of the premises.[FN18]
After acquired title. When the grantor
conveys an easement that he or she does not
own, or conveys an easement across a servient
tenement that he or she does not own, the
grantee receives the easement when it or the
servient tenement is subsequently acquired by
the grantor under the doctrine of "after-
acquired title."[FN19]
Consideration and transfer taxes. There is no
need for consideration to create an enforceable
easement.[FN20] If the easement is a grant in
perpetuity or for a substantial period of time, it
is subject to the payment of the documentary
transfer tax.[FN21]
[FN1] See Cal. Jur. 3d, Easements and licenses

in real property 18, 19, 24.
[FN2] See 14:1 (elements of agreed-
boundary-line doctrinein general), 14:25
to 14:35 (subjacent and lateral support),
14:36 to 14:39 (party walls), 14:40 (division
fences).
[FN3] Leggio v. Haggerty, 231 Cal. App. 2d
873, 881884, 42 Cal. Rptr. 400 (5th Dist.
1965).
[FN4] Elliott v. McCombs, 17 Cal. 2d 23, 32,
109 P.2d 329 (1941); Fudickar v. East
Riverside Irr. Dist., 109 Cal. 29, 38, 41 P. 1024
(1895); Jones v. Harmon, 175 Cal. App. 2d
869, 875-878, 1 Cal. Rptr. 192 (2d Dist. 1959);
City of Hayward v. Mohr, 160 Cal. App. 2d
427, 431-434, 325 P.2d 209 (1st Dist. 1958);
P. 1002 (2d Dist. 1924).
[FN5] Churchill v. Russell, 148 Cal. 1, 5, 82 P.
440 (1905); Flickinger v. Shaw, 87 Cal. 126,
133, 25 P. 268 (1890); Rose v. Peters, 59 Cal.
App. 2d 833, 835, 139 P.2d 983 (1st Dist.
1943); Douglas v. Lewin, 131 Cal. App. 159,
162, 20 P.2d 959 (1st Dist. 1933).
See 1:75 (waiver exception: executed oral
agreement), 3:7 to 3:9 (agent's authority at
common law, warranty, ratification), 15:45
(easements; estoppel; executed oral
conveyance).
[FN6] See 15:13 (easements, description of
methods of creation).
[FN7] Rice v. Capitol Trailer Sales of Redding,
244 Cal. App. 2d 690, 692, 53 Cal. Rptr. 384
(5th Dist. 1966) (easement created by a deed of
trust).
[FN8] Knoch v. Haizlip, 163 Cal. 146, 152,
124 P. 998 (1912); Weller v. Brown, 160 Cal.
515, 519, 117 P. 517 (1911); Golden West
Baseball Co. v. City of Anaheim, 25 Cal. App.
4th 11, 35, 31 Cal. Rptr. 2d 378 (4th Dist.
1994); Buehler v. Reilly, 157 Cal. App. 2d 338,
341-343, 321 P.2d 128 (2d Dist. 1958); Porto
v. Vosti, 136 Cal. App. 2d 395, 397, 288 P.2d
618 (1st Dist. 1955); Pacific Gas & Elec. Co. v.
Minnette, 115 Cal. App. 2d 698, 707, 252 P.2d
642 (3d Dist. 1953); Zimmerman v. Young, 74
Cal. App. 2d 623, 626, 169 P.2d 37 (4th Dist.
1946); Dierssen v. McCormack, 28 Cal. App.
2d 164, 170, 82 P.2d 212 (1st Dist. 1938);
O'Neil v. Edwards, 95 Cal. App. 523, 524, 272
P. 1099 (1st Dist. 1928); Cortese v. U.S., 782
F.2d 845, 850 (9th Cir. 1986).
See 8:1 to 8:2 (deeds; interpretation and
requirements).
[FN9] Wilson v. Abrams, 1 Cal. App. 3d 1030,
1034-1036, 82 Cal. Rptr. 272 (2d Dist. 1969)
(reciprocal parking and access easements in
shopping center).
See 26:1 (definitions), 26:2 (capacity to
dedicate property; co-ownership), 24:1 to
24:3 (covenants), 24:4 to 24:27 (equitable
servitudes).
[FN10] See 15:47 (partition).
[FN11] See 8:15 to 8:19 (identity of the
grantor), 8:24 (identity of the grantee).
In Whitson v. Goudeseune, 137 Cal. App. 2d
445, 447, 290 P.2d 590 (2d Dist. 1955), an
easement was created by a deed that conveyed
it to "the present owners of said lot 3 and . . .
each of their successors." The court concluded
that this language was a sufficient
identification of the grantee.
[FN12] City of Glendora v. Faus, 148 Cal.
App. 2d 920, 926, 307 P.2d 976 (2d Dist.
1957); Pacific Gas & Elec. Co. v. Crockett
Land & Cattle Co., 70 Cal. App. 283, 293, 233
P. 370 (1st Dist. 1924).
See 1:23 (requirement of certainty of terms
of agreement: description of the property),
1:24 (purchase of a portion of a larger parcel),
8:43 (acceptance, in general), 8:45 to
8:51.1 (property conveyed).
[FN13] Wilson v. Abrams, 1 Cal. App. 3d
1030, 1034, 82 Cal. Rptr. 272 (2d Dist. 1969)
(attached plat map).
See 1:23 (requirement of certainty of terms
of agreement: description of the property),
8:45 to 8:51.1 (property conveyed).
[FN14] Frederick v. Louis, 10 Cal. App. 2d
649, 651, 52 P.2d 533 (1st Dist. 1935).
See 15:14 to 15:18 (express grant or
reservation).
[FN15] Horowitz v. Noble, 79 Cal. App. 3d
120, 131-132, 144 Cal. Rptr. 710 (1st Dist.
1978).
See 15:24 (implied reservation to the
grantor).
[FN16] Pollard v. Rebman, 162 Cal. 633, 634,
124 P. 235 (1912); Zimmerman v. Young, 74
P. 370 (1st Dist. 1924).
See 8:28 (execution by an agent), 11:2
(enforceability of unrecorded instruments).
[FN17] See 11:49 (status as bona fide
purchaser or encumbrancer, definitions),
15:40 (enforcement by the claimant).
[FN18] See Chapter 15. Easements
Kenneth Styles

15:15. Drafting precautions

West's Key Number Digest, Easements 12 to

14
Issues to consider. Interpretation of the

instruments of conveyance is the greatest
single problem and cause for litigation
involving expressly created easements. An
ambiguous or otherwise deficient instrument
may create issues as to (1) whether the fee title
was conveyed or excepted or whether a mere
easement was transferred or reserved,[FN1] (2)
whether the easement is appurtenant or in
gross,[FN2] and (3) the location of the
easement.[FN3]
One of the more common issues in litigation is
the type and extent of the easement's intended
use that should be considered in the document
creating the easement.[FN4] In the absence of
express limitations to the contrary, the owner
of an easement may be able to increase or
modify its use.[FN5] Therefore, the owner of
the servient tenement should strive to make
maximum use of the burdened property by
assuring that limitations on the use of the
easement are carefully set forth in the
instrument of creation. The restrictions should
consider both the present circumstances and
any potential development or future use of the
dominant tenement. If the dominant tenement
owner anticipates some future change in the
use of the dominant tenement, such use should
be specified in the instrument.[FN6]
Document in the chain of title. The
instrument creating an easement should
specifically describe both the dominant and
servient tenements, and care must be taken that
the instrument is properly recorded in the
servient tenement's chain of title. For example,
assume that a person who owns parcels A and
B conveys parcel A by a deed that also
transfers to the grantee an easement across
parcel B. The recordation of that deed may not
be in the chain of title to parcel B and may not
be notice to a purchaser or encumbrancer of
parcel B.[FN7]
[FN1] See 15:17 (right of way as easement or

fee simple).
[FN2] See, for example, Moylan v. Dykes, 181
Dist. 1986) (citing text).
See 15:8 (determination as appurtenant
easement or easement in gross).
easements).
[FN4] See 15:54 to 15:62 (use of
easements).
[FN5] See 15:54 to 15:55 (extent of
permitted use; increase or changed use).
[FN6] See Kratovil, Easement Draftsmanship
and Conveyancing, 38 Cal L.Rev. 426 (1950).
See also Extent and reasonableness of use of
private way in exercise of easement granted in
general terms, 3 A.L.R.3d 1256; Type of
vehicle or mode of travel permissible on
express easement of way created in limited
terms, 156 A.L.R. 1050.
[FN7] See 11:33 ("chain of title" defined;
effect of a recorded document not in the chain
of title), 11:34 (transfer of interest before title
recordedeffect of death of record owner).
See also Kratovil, Easement Draftsmanship
and Conveyancing, 38 Cal.L.Rev. 426 (1950).
Also see Record of deed or contract for
conveyance of one parcel with covenant or
easement affecting another parcel owned by
grantor as constructive notice to subsequent
purchaser or encumbrancer of latter parcel, 16
A.L.R. 1013.
MILCALRE 15:15
11:75 to 11:77 (notice implied from
circumstances, generally), 11:78 to 11:88
(notice implied from possession or use).
[FN19] Noronha v. Stewart, 199 Cal. App. 3d
485, 490, 245 Cal. Rptr. 94 (2d Dist. 1988).
See 8:51 (after-acquired title), 10:19
("after-acquired" title).
[FN20] Eastman v. Piper, 68 Cal. App. 554,
569, 229 P. 1002 (2d Dist. 1924).
See 8:44 (deeds; consideration), 8:42
(conditional delivery of the deed to a third
person).
[FN21] 62 California Op. Att'y Gen. 87 (1979).
See 11:14 (transfer taxes and other fees
charged on recordation).
MILCALRE 15:14
Kenneth Styles

15:16. Rules of construction

The rules for deeds and contracts apply.
An instrument creating an easement is
subject to the same rules of construction
applicable to deeds[FN1] and is interpreted
in the same manner as a contract.[FN2]
Statutory rules of construction. Each
transaction must be considered
independently based on the words and
construction of the instrument of
conveyance.[FN3] The conveyance is
interpreted in the first instance by the
language of the document.[FN4] When the
intent of the parties can be derived from
the plain meaning of the words used in the
deed, the court should not rely on the
statutory rules of construction. If there is
ambiguity in the document, the court may
interpret the grant in accordance with the
rules of construction codified by
statute.[FN5]
Document construed according to the
intention of the parties. When the
document creating the easement is
ambiguous, the court looks to the
surrounding circumstances, the
relationship between the parties, the
properties, and the nature and purpose of
the easement in order to establish the
intention of the parties.[FN6] The cardinal
rule of interpretation is to ascertain and
enforce the intentions of both the grantor
and the grantee.[FN7] Because the
intention of both the grantor and the
grantee must be determined, different
emphasis is placed on the instruments
depending on whether the grantee is a
private individual or public agency.[FN8]
A quitclaim transfers whatever interest the
grantor has in the property.[FN9] This
usually indicates an intent to convey a fee
simple if that was the interest held by the
grantor.[FN10] There is a statutory
presumption that a grant of real property
conveys fee simple title,[FN11] and this
presumption applies equally to a quitclaim
deed.[FN12]
Extrinsic evidence. A document that is
clear and unambiguous is interpreted by an
examination of the document itself and by
a comparison and analysis of all of its
provisions.[FN13] When there is an
uncertainty or ambiguity in the instrument
conveying the easement, the court can
examine the surrounding circumstances
and the relationship between the parties
and their respective properties.[FN14] If
the face of the document is susceptible to
more than one meaning, extrinsic evidence
is admissible as an aid to interpretation
when the offered evidence itself was
relevant to prove a meaning to which the
language of the instrument is reasonably
susceptible, and it adopts the interpretation
that more properly reflects the intention of
the parties.[FN15] When the instrument is
susceptible to more than one meaning,
extrinsic evidence is admissible as an aid
to interpretation as long as the evidence
does not give an unreasonable meaning to
the instrument.[FN16]
Construction of ambiguities. As a general
rule of construction, an ambiguity in a
grant is interpreted in favor of the
grantee,[FN17] and any ambiguities in the
document granting the easement, which
cannot be resolved by application of other
rules of interpretation, should be construed
against the drafter of the easement.[FN18]
Construction against a public agency. The
same presumption applies equally against
the public body when it prepares the
instrument.[FN19] The presumption that
the private party caused the ambiguity in
the contract with a public body only
applies when it is unclear who prepared
the contract,[FN20] and this presumption
is rebutted where it is proved that the
public body prepared the contract.[FN21]
Construction of reservations. An
ambiguity in a reservation is construed in
favor of the grantor.[FN22] Therefore,
when a grant of an easement contains an
express reservation of use by the grantor,
the grantee only receives that which is
conveyed, and all rights that are not
inconsistent with the grant, and that do not
unreasonably interfere with the use of the
easement by the grantee, are reserved to
the grantor.[FN23]
CUMULATIVE SUPPLEMENT
Cases:
Document construed according to the
intention of the parties. The case of
Christian v. Flora, 164 Cal. App. 4th 539,
78 Cal. Rptr. 3d 892 (3d Dist. 2008),
principally involved termination of an
initial easement, and creation of a new
easement, by filing an amended parcel
map pursuant to Gov. Code, 66499.20.
(See Miller & Starr, 15:75.) In addition,
the court held that if any ambiguity existed
in an express easement, the court may look
to the surrounding circumstances and the
relationship of the parties involved in the
grant of the easement. The court noted that
the ambiguity arose because the subdivider
had filed an amended parcel map, but the
grant deed referenced the prior parcel map
with a different easement. The court held
that "ample evidence" supported the
conclusion that the subdivider's intent was
to grant the easement consistent with the
amended parcel map, and not the prior
parcel map identified in the grant deed.
Construction of ambiguities. In Red
Mountain, LLC. v. Fallbrook Public Utility
Dist., 143 Cal. App. 4th 333, 48 Cal. Rptr.
3d 875 (4th Dist. 2006), review denied,
(Dec. 20, 2006), the plaintiff landowner of
undeveloped land filed suit against the
Fallbrook Public Utilities District
(Fallbrook) relating, in part, to a dispute
over the interpretation of a 1978 agreement
for Fallbrook to grant (in the future) a 60-
foot easement. Fallbrook argued, and the
court agreed, that the parties' 1978
agreement to grant an easement was
"ambiguous" and that Civ. Code, 1069
applied ("every grant by a public officer or
body, as such, to a private party, is to be
interpreted in favor of the grantor"). The
court disagreed with the respondent
landowner's contention that other rules of
construction or interpretation should apply.
The court held that "section 1069 requires
a court to interpret an ambiguous grant by
a public body in favor of the grantor [even]
when other rules of construction or
extrinsic evidence support an interpretation
in favor of the grantee." Fallbrook, 143
Cal. App. 4th at 345.
[END OF SUPPLEMENT]
Cal. 2d 512, 521, 67 Cal. Rptr. 761, 439
P.2d 889 (1968); Laux v. Freed, 53 Cal. 2d
512, 522, 2 Cal. Rptr. 265, 348 P.2d 873
(1960); Scruby v. Vintage Grapevine, Inc.,
37 Cal. App. 4th 697, 702, 43 Cal. Rptr. 2d
810 (1st Dist. 1995), as modified on denial
of reh'g, (Sept. 6, 1995); Moylan v. Dykes,
181 Cal. App. 3d 561, 569, 226 Cal. Rptr.
673 (3d Dist. 1986) (citing text);
McManus v. Sequoyah Land Associates,
240 Cal. App. 2d 348, 353, 49 Cal. Rptr.
592, 20 A.L.R.3d 1015 (1st Dist. 1966);
Kerr Land & Timber Co. v. Emmerson,
233 Cal. App. 2d 200, 219, 43 Cal. Rptr.
333 (1st Dist. 1965); Kerr v. Brede, 180
Cal. App. 2d 149, 150, 4 Cal. Rptr. 443
(3d Dist. 1960); Keeler v. Haky, 160 Cal.
App. 2d 471, 474, 325 P.2d 648 (2d Dist.
1958); Los Angeles County v. Wright, 107
Cal. App. 2d 235, 241, 236 P.2d 892 (2d
Dist. 1951); Eastman v. Piper, 68 Cal.
App. 554, 561, 229 P. 1002 (2d Dist.
1924).
See 8:1 (deeds; rules of construction),
15:17 (right of way as easement or fee
simple), 15:18 ("reservation" of an
easement, or "exception" of a fee simple),
15:56 (express easements).
[FN2] Civ. Code, 1066. Willard v. First
Church of Christ, Scientist, 7 Cal. 3d 473,
476, 102 Cal. Rptr. 739, 498 P.2d 987
(1972); Continental Baking Co. v. Katz, 68
Cal. 2d 512, 521, 67 Cal. Rptr. 761, 439
P.2d 889 (1968); Laux v. Freed, 53 Cal. 2d
512, 523, 2 Cal. Rptr. 265, 348 P.2d 873
(1960); Machado v. Southern Pacific
Transportation Co., 233 Cal. App. 3d 347,
352, 284 Cal. Rptr. 560 (2d Dist. 1991);
569, 226 Cal. Rptr. 673 (3d Dist. 1986);
Welch v. Kai, 4 Cal. App. 3d 374, 378, 84
Cal. Rptr. 619 (1st Dist. 1970); Kerr Land
& Timber Co. v. Emmerson, 233 Cal. App.
2d 200, 217, 219, 43 Cal. Rptr. 333 (1st
Dist. 1965); Kerr v. Brede, 180 Cal. App.
2d 149, 151, 4 Cal. Rptr. 443 (3d Dist.
1960); City of Los Angeles v. Pacific Elec.
Ry. Co., 168 Cal. App. 2d 224, 229, 335
P.2d 1042 (2d Dist. 1959); Paddock v.
Vasquez, 122 Cal. App. 2d 396, 399, 265
P.2d 121 (2d Dist. 1953); Marlin v.
Robinson, 123 Cal. App. 373, 375, 11 P.2d
70 (1st Dist. 1932); Eastman v. Piper, 68
Cal. App. 554, 561, 229 P. 1002 (2d Dist.
1924).
See 1:59 (contracts; rules of contract
interpretation), 1:60 (parol evidence
rule); Witkin, 12 Summary of California
L., 388 to 391 (10th ed.).
[FN3] City of Manhattan Beach v.
Cal. Rptr. 2d 82, 914 P.2d 160 (1996).
Cal. Rptr. 2d 82, 914 P.2d 160 (1996).
See 1:59 (contracts; rules of contract
interpretation).
[FN5] Machado v. Southern Pacific
353, 284 Cal. Rptr. 560 (2d Dist. 1991);
Civ. Code 1066 to 1072.
Cal. 2d 512, 522, 67 Cal. Rptr. 761, 439
P.2d 889 (1968); Pacific Gas & Elec. Co.
v. Hacienda Mobile Home Park, 45 Cal.
App. 3d 519, 530, 119 Cal. Rptr. 559 (1st
Dist. 1975); Wilson v. Abrams, 1 Cal.
App. 3d 1030, 1035-1037, 82 Cal. Rptr.
272 (2d Dist. 1969); City of Los Angeles
v. Howard, 244 Cal. App. 2d 538, 542-
544, 53 Cal. Rptr. 274 (2d Dist. 1966);
Kerr Land & Timber Co. v. Emmerson,
233 Cal. App. 2d 200, 217, 43 Cal. Rptr.
333 (1st Dist. 1965); Kerr v. Brede, 180
Cal. App. 2d 149, 151, 4 Cal. Rptr. 443
(3d Dist. 1960); Edgar v. Pensinger, 73
Cal. App. 2d 405, 411-414, 166 P.2d 354
(4th Dist. 1946); Marlin v. Robinson, 123
Cal. App. 373, 375, 11 P.2d 70 (1st Dist.
1932).
See People v. Ayer, 18 Cal. App. 2d 755,
758, 64 P.2d 769 (3d Dist. 1937).
See 15:16 (express grant or reservation,
rules of construction), 15:17 (right of
way as easement or fee simple), 15:18
("reservation" of an easement, or
Also see Extent and reasonableness of use
of private way in exercise of easement
granted in general terms, 3 A.L.R.3d 1256,
1260, 1262.
[FN7] Civ. Code, 1636. City of
Manhattan Beach v. Superior Court, 13
Cal. 4th 232, 243, 52 Cal. Rptr. 2d 82, 914
P.2d 160 (1996); Willard v. First Church
of Christ, Scientist, 7 Cal. 3d 473, 476,
102 Cal. Rptr. 739, 498 P.2d 987 (1972);
Coon v. Sonoma Magnesite Co., 182 Cal.
597, 600, 189 P. 271 (1920); Barnett v.
Barnett, 104 Cal. 298, 301, 37 P. 1049
352, 284 Cal. Rptr. 560 (2d Dist. 1991);
Concord & Bay Point Land Co. v. City of
Concord, 229 Cal. App. 3d 289, 294-297,
280 Cal. Rptr. 623 (1st Dist. 1991); City of
Anaheim v. Metropolitan Water Dist. of
Southern Cal., 82 Cal. App. 3d 763, 768,
147 Cal. Rptr. 336 (4th Dist. 1978)
(intention of grantor); Welch v. Kai, 4 Cal.
App. 3d 374, 378, 84 Cal. Rptr. 619 (1st
Dist. 1970); City of Los Angeles v.
Savage, 165 Cal. App. 2d 1, 5, 331 P.2d
211 (2d Dist. 1958); Paddock v. Vasquez,
122 Cal. App. 2d 396, 400, 265 P.2d 121
(2d Dist. 1953); Marlin v. Robinson, 123
Cal. App. 373, 11 P.2d 70 (1st Dist. 1932);
Eastman v. Piper, 68 Cal. App. 554, 229 P.
1002 (2d Dist. 1924); Anderson v.
Willson, 48 Cal. App. 289, 294-296, 191
P. 1016 (2d Dist. 1920).
[FN8] Basin Oil Co. of Cal. v. City of
Inglewood, 125 Cal. App. 2d 661, 665,
271 P.2d 73 (2d Dist. 1954).
See 8:25 (capacity of the grantee).
See Effect of provisions designating or
referring to persons entitled to use right of
way created by express grant, 20 A.L.R.2d
796.
[FN9] See 8:12 to 8:13 (quitclaim
deeds).
Superior Court, 13 Cal. 4th 232, 239-241,
52 Cal. Rptr. 2d 82, 914 P.2d 160 (1996);
City of Long Beach v. Marshall, 11 Cal.
2d 609, 615, 82 P.2d 362 (1938).
[FN11] See 15:16 (easements; rules of
construction).
Superior Court, 13 Cal. 4th 232, 239-241,
52 Cal. Rptr. 2d 82, 914 P.2d 160 (1996).
352, 284 Cal. Rptr. 560 (2d Dist. 1991);
City of Los Angeles v. Ingersoll-Rand Co.,
57 Cal. App. 3d 889, 894, 129 Cal. Rptr.
485 (2d Dist. 1976); Kerr v. Brede, 180
Cal. App. 2d 149, 151, 4 Cal. Rptr. 443
(3d Dist. 1960); City of Los Angeles v.
211 (2d Dist. 1958); Basin Oil Co. of Cal.
v. City of Inglewood, 125 Cal. App. 2d
661, 663, 271 P.2d 73 (2d Dist. 1954).
See also 15:18 ("reservation" of an
[FN14] Civ. Code, 1066, 1647; Buehler
v. Oregon-Washington Plywood Corp., 17
Cal. 3d 520, 526, 131 Cal. Rptr. 394, 551
P.2d 1226 (1976); Willard v. First Church
of Christ, Scientist, 7 Cal. 3d 473, 476,
102 Cal. Rptr. 739, 498 P.2d 987 (1972);
French v. Brinkman, 60 Cal. 2d 547, 552,
35 Cal. Rptr. 289, 387 P.2d 1 (1963);
Boyer v. Murphy, 202 Cal. 23, 28, 259 P.
38 (1927); City of Anaheim v.
Metropolitan Water Dist. of Southern Cal.,
82 Cal. App. 3d 763, 768, 147 Cal. Rptr.
336 (4th Dist. 1978); Kerr Land & Timber
Co. v. Emmerson, 233 Cal. App. 2d 200,
217, 43 Cal. Rptr. 333 (1st Dist. 1965);
McManus v. Sequoyah Land Associates,
240 Cal. App. 2d 348, 353, 49 Cal. Rptr.
592, 20 A.L.R.3d 1015 (1st Dist. 1966), 20
A.L.R.3d 1015; City of Los Angeles v.
211 (2d Dist. 1958); Marlin v. Robinson,
123 Cal. App. 373, 375, 11 P.2d 70 (1st
Dist. 1932); Eastman v. Piper, 68 Cal.
App. 554, 561, 229 P. 1002 (2d Dist.
1924).
[FN15] Buehler v. Oregon-Washington
Plywood Corp., 17 Cal. 3d 520, 526, 131
Cal. Rptr. 394, 551 P.2d 1226 (1976)
(citing text); Continental Baking Co. v.
Katz, 68 Cal. 2d 512, 523, 67 Cal. Rptr.
761, 439 P.2d 889 (1968); Parsons v.
Bristol Development Co., 62 Cal. 2d 861,
865, 44 Cal. Rptr. 767, 402 P.2d 839
(1965); Moylan v. Dykes, 181 Cal. App.
3d 561, 569, 226 Cal. Rptr. 673 (3d Dist.
1986); Murphy Slough Assn. v. Avila, 27
Cal. App. 3d 649, 653-655, 104 Cal. Rptr.
136 (5th Dist. 1972).
See 1:59 to 1:60 (contracts; rules of
interpretation; parol evidence rule), 1:73
(statute of frauds; parol evidence rule
distinguished), 8:1 (deeds; rules of
interpretation).
[FN16] Buehler v. Oregon-Washington
Plywood Corp., 17 Cal. 3d 520, 526, 131
Cal. Rptr. 394, 551 P.2d 1226 (1976)
(citing text); Continental Baking Co. v.
Katz, 68 Cal. 2d 512, 522, 67 Cal. Rptr.
761, 439 P.2d 889 (1968).
See 1:59 to 1:60 (contracts; rules of
interpretation; parol evidence rule), 1:73
(statute of frauds; parol evidence rule
distinguished), 15:16 (express grant or
reservation, rules of construction).
[FN17] Civ. Code, 1069; City of
Manhattan Beach v. Superior Court, 13
Cal. 4th 232, 239-241, 52 Cal. Rptr. 2d 82,
914 P.2d 160 (1996); Laux v. Freed, 53
Cal. 2d 512, 522, 2 Cal. Rptr. 265, 348
P.2d 873 (1960); Machado v. Southern
Pacific Transportation Co., 233 Cal. App.
3d 347, 353, 284 Cal. Rptr. 560 (2d Dist.
1991); Concord & Bay Point Land Co. v.
City of Concord, 229 Cal. App. 3d 289,
294-297, 280 Cal. Rptr. 623 (1st Dist.
1991); Pacific Gas & Elec. Co. v.
Hacienda Mobile Home Park, 45 Cal. App.
3d 519, 525, 119 Cal. Rptr. 559 (1st Dist.
1975); Norris v. State ex rel. Dept. of
Public Works, 261 Cal. App. 2d 41, 46, 67
Cal. Rptr. 595 (3d Dist. 1968).
[FN18] Civ. Code, 1654; Pacific Gas &
Elec. Co. v. Hacienda Mobile Home Park,
45 Cal. App. 3d 519, 525, 119 Cal. Rptr.
559 (1st Dist. 1975); King v. Samuel, 7
Cal. App. 55, 57, 93 P. 391 (3d Dist.
1907).
See 1:59 (rules of contract
interpretation), 1:60 (parol evidence
rule).
[FN19] Beverly Hills Firemen's Assn., Inc.
v. City of Beverly Hills, 119 Cal. App. 3d
620, 631, 174 Cal. Rptr. 178 (2d Dist.
1981); Goddard v. South Bay Union High
School Dist., 79 Cal. App. 3d 98, 105, 144
Cal. Rptr. 701 (2d Dist. 1978); Walnut
Creek Elec. v. Reynolds Const. Co., 263
Cal. App. 2d 511, 515, 69 Cal. Rptr. 667
(1st Dist. 1968).
[FN20] Eichler Homes, Inc. v. Marin
County, 208 Cal. App. 2d 653, 657, 25
Cal. Rptr. 394 (1st Dist. 1962).
[FN21] Department of W. & P. v. Okonite-
Callender C. Co., 181 F.2d 375, 380, 24
A.L.R.2d 917 (9th Cir. 1950).
[FN22] Civ. Code, 1069; Code Civ.
Proc., 1864; Ballard v. Titus, 157 Cal.
673, 683, 110 P. 118 (1910). Machado v.
Southern Pacific Transportation Co., 233
Cal. App. 3d 347, 353, 284 Cal. Rptr. 560
(2d Dist. 1991); Concord & Bay Point
Land Co. v. City of Concord, 229 Cal.
App. 3d 289, 294-297, 280 Cal. Rptr. 623
(1st Dist. 1991); Moylan v. Dykes, 181
Cal. App. 3d 561, 569, 226 Cal. Rptr. 673
(3d Dist. 1986) (citing text); City of Los
Angeles v. Ingersoll-Rand Co., 57 Cal.
App. 3d 889, 894, 129 Cal. Rptr. 485 (2d
Dist. 1976); Massetti v. Madera Canal &
Irrigation Co., 20 Cal. App. 2d 708, 715-
717, 68 P.2d 260 (3d Dist. 1937); Cooper
v. Selig, 48 Cal. App. 228, 231-236, 191 P.
983 (3d Dist. 1920); Pitcairn v. Harkness,
10 Cal. App. 295, 298, 101 P. 809 (2d
Dist. 1909); Gardner v. San Gabriel Valley
Bank, 7 Cal. App. 106, 111, 93 P. 900 (2d
Dist. 1907).
[FN23] City of Los Angeles v. Ingersoll-
Rand Co., 57 Cal. App. 3d 889, 894, 129
Cal. Rptr. 485 (2d Dist. 1976); City of Los
Angeles v. Igna, 208 Cal. App. 2d 338,
341, 25 Cal. Rptr. 247 (2d Dist. 1962).
See 15:18 ("reservation" of an easement,
or "exception" of a fee simple).
Kenneth Styles

15:17. Rules of constructionRight-of-

way as easement or fee simple
Statement of the issue. A recurrent problem

that arises from the drafting of a deed granting
a "right of way" is whether the parties intended
to grant a fee title to the described strip of land,
or whether they only intended to convey an
easement.[FN1] As a general rule, a grant of
real property is presumed to convey fee
title,[FN2] but the document is interpreted to
ascertain the intent of the parties,[FN3] and
different rules and considerations have been
applied where the conveyance consists of a
road, street, or other right of way. Although
some cases have stated that the term "right of
way" means the conveyance of an
easement,[FN4] other courts have noted that,
depending on the wording of the document and
the surrounding circumstances, the term can
mean the transfer of either the fee title or an
easement.[FN5]
Rules of interpretation. In determining
whether the parties intended to grant a fee or an
easement, there are several indicia of the
parties' intent, including: (1) whether the
reference to a "right of way" is merely
descriptive or acts to limit the grant; (2) the
location of the limiting language; (3) whether
the deed contains references to the interest
conveyed as a fee or easement; (4) whether the
conveyance includes words of inheritance such
as "tenements," "hereditaments," or words that
describe interests in real property that are
normally associated with a fee; (5) whether the
interest is described as running "over and
across" the land of the grantor; (6) the
reservation of rights to remove minerals or to
cultivate the property in question; and (7) the
amount of consideration paid.[FN6]
Qualified grant usually an easement. As a
general rule of deed interpretation,[FN7] a
conveyance passes an easement, and not a fee
title, where the document conveys a strip of
land and the granting clause itself, or the clause
immediately following it, contains words of
qualification such as "right of way" or "for
road purposes."[FN8] However, this rule is not
inflexible and depends on the other terms of
the deed, the surrounding circumstances, and
other evidence of the intent of the
parties.[FN9]
Where the granting clause of the deed is
unqualified and the habendum clause contains
a qualification, several older cases have held
that a fee title passes pursuant to the inflexible
common law rule that the habendum clause
cannot qualify the granting clause.[FN10]
However, this restricted and artificial
distinction has been rejected by a number of
subsequent decisions. By the later approach,
when determining whether the parties intended
to pass a fee title or only an easement, the court
looks at the entire instrument and all of its parts
and, if necessary, the surrounding facts and
circumstances. The cases applying this view
indicate that the mere fact that the purpose of
the grant is stated in the habendum clause does
not necessarily mean that a fee has been
conveyed,[FN11] or that a qualification in the
granting clause necessarily means the
conveyance of an easement because it may be
merely a statement of purpose rather than a
limitation on the grant.[FN12]
Rules that indicate the conveyance of a fee.
The general statutory rules that a grant is to be
interpreted in favor of the grantee;[FN13] that
if several parts of a grant are absolutely
irreconcilable, the former part prevails;[FN14]
and that a fee simple title is presumed to be
intended to pass by a grant of real property,
unless it appears from the grant that a lesser
estate was intended,[FN15] all tend toward the
conclusion that a fee title is conveyed.
Reference to a right of reversion indicates the
conveyance of a fee title because the breach of
a condition in an easement merely terminates
the easement.[FN16]
Case Example: In a case analyzing a 1901
deed, "essentially identical to the deed
analyzed in Concord & Bay Point Land Co. v.
City of Concord, 229 Cal. App. 3d 289, 290,
280 Cal. Rptr. 623 (1st Dist. 1991)," the court
concluded that the grant of real property to a
railroad company for the purpose of
constructing a railroad "right-of-way" was not
ambiguous and established the intent of the
parties to convey the real property in fee title
rather than to create an easement. The
reversionary language in the instrument
showed the grantors intent to convey a fee
interest (as opposed to an easement) subject to
a condition subsequent that if the grantee failed
to use the land for a railroad right-of-way, the
grantors could reclaim the property.[FN17]
Effect of the identity of the grantee and
nominal consideration. In reviewing the
surrounding circumstances, the court also
considers the identity of the grantee. If the
grantee is a railroad[FN18] or a public
agency,[FN19] it often is concluded that the
parties intended the right of way to be an
easement, but other decisions have concluded
that the grant of the right of way conveyed fee
title.[FN20]
Furthermore, the court considers the fact that
little, if any, consideration has been paid by the
grantee. This constitutes evidence that the
parties intended that only an easement be
transferred.[FN21]
Case Example: In consideration for one dollar,
a subdivider executed a quitclaim deed for a
right of way to a railroad in 1888. It provided
for the construction, maintenance, and
operation of a steam railroad on, over, and
along the parcel granted, with a right of
reversion if the conditions were not satisfied at
any time. In 1986 the railroad ceased
operations and conveyed the right of way to the
city for use as a transportation corridor. The
successors of the grantor brought an action
seeking to quiet title on the theory that only an
easement had been conveyed to the railroad.
The court held that the deed conveyed fee title.
Whether the deed conveyed a fee or an
easement is based on the language of the deed,
but when the deed is ambiguous the court can
rely on extrinsic evidence to determine the
intent of the parties. There is support for the
conclusion that the parties intended the
conveyance of a fee because there is a
presumption that a grant of real property
conveys fee simple title, that a deed is to be
construed against the grantor and in favor of
the grantee, that a quitclaim usually indicates
an intent to convey a fee simple, and that the
reference to a reversion indicates an intent to
convey a fee, because on a breach of conditions
an easement may terminate but does not revert
to the grantor. Also, subsequent conveyances
excepted the land of the railroad. These facts
and the conduct of the grantor and its
successors after the conveyance all indicate
that the grantor intended to convey fee title to
the railroad and were inconsistent with an
intent to merely convey an easement.[FN22]
On the other hand, the nominal consideration,
the reference to a "right of way" and "over and
through the lands of the grantor," indicate the
transfer of an easement.
Case Example: A landowner granted a 60-foot
right of way to a railroad in 1911 in
consideration for $10. The grant was for use as
an electric railroad, and if the property ceased
being used for that purpose, it would revert to
the grantor. The railroad ceased using the
property for a railroad and removed the tracks
in 1975. The landowner alleged that the deed
conveyed only an easement that had expired.
The court held that the deed granted a fee
simple estate to the railroad subject to a
condition subsequent and not a mere easement.
Several rules of interpretation supported a
contrary finding of only an easement e.g., (1)
a grant of real property is presumed to convey
a fee simple unless a lesser estate was intended,
(2) grants are interpreted in favor of the
grantee, (3) grants of a right of way to a
railroad usually are construed to convey only
an easement, and (4) a grant for nominal value
indicates the conveyance of an easement.
However, the ultimate test is the intention of
the parties expressed in the instrument. The
granting clause referenced "land" and did not
contain any limitations, it referenced words of
inheritance, the limitation was only contained
in the habendum, and the reference to a
reversion indicated a fee simple because the
grantor of an easement has a present estate and
a breach of the condition in an easement
merely involves a termination of the grantee's
right of use and not a reversion.[FN23]
Case Example: A landowner's ancestor
executed a deed in 1895 conveying a strip of
real property for use as a railroad. The
landowner filed an action to quiet title alleging
that the deed only conveyed an easement and
that abandonment of the railway operation in
1977 extinguished the easement. The court
held that the deed granted a fee and that, even
if the deed had only conveyed an easement, the
railroad's successor had obtained the property
through adverse possession after the
abandonment of the easement. The stated
purpose of the grant was "[f]or a right of way
for a standard gauge railroad," which was a
description of purpose and not a limitation on
the grant. There was no evidence that the
original parties intended the grant to be only an
easement, and, on balance, it was more
appropriate to determine that they intended a
grant of a fee interest.[FN24]
Comment: The court disapproved of the
language in Johnson v. Ocean Shore Railroad
Co., 16 Cal. App. 3d 429, 94 Cal. Rptr. 68 (1st
Dist. 1971), that, "the deed is usually construed
as giving a mere right of way, although the
terms of the deed would otherwise apt to
convey a fee." [FN25] The court concluded
that no prior California case authority
supported that statement. The court noted that
the "cardinal rule" of deed interpretation was
the parties original intent, and "there is no
preference for construing a grant to a railroad
as an easement instead of a fee."[FN26]
[FN1] See Conveyance of "right of way," in

connection with conveyance of another tract, as
passing fee or easement, 89 A.L.R.3d 767.
construction).
construction).
[FN4] Parks v. Gates, 186 Cal. 151, 154, 199
P. 40 (1921); San Rafael Ranch Co. v. Ralph
Rogers Co., 154 Cal. 76, 77, 96 P. 1092
(1908); City of Los Angeles v. Pacific Elec.
Ry. Co., 168 Cal. App. 2d 224, 228, 335 P.2d
1042 (2d Dist. 1959); San Pedro, L.A. &
S.L.R. Co. v. Pillsbury, 23 Cal. App. 675, 680,
139 P. 669 (2d Dist. 1914).
See 15:18 ("reservation" of an easement, or
[FN5] City of Manhattan Beach v. Superior
Court, 13 Cal. 4th 232, 239-248, 52 Cal. Rptr.
2d 82, 914 P.2d 160 (1996); People, By and
Through Department of Public Works v.
Thompson, 43 Cal. 2d 13, 19, 271 P.2d 507
Transportation Co., 233 Cal. App. 3d 347, 354,
284 Cal. Rptr. 560 (2d Dist. 1991); Concord &
Bay Point Land Co. v. City of Concord, 229
Cal. App. 3d 289, 294-297, 280 Cal. Rptr. 623
(1st Dist. 1991); Warren v. Atchison, T. & S.
F. Ry. Co., 19 Cal. App. 3d 24, 35, 96 Cal.
Rptr. 317 (4th Dist. 1971); City of Glendora v.
Faus, 148 Cal. App. 2d 920, 926, 307 P.2d 976
(2d Dist. 1957); Ocean Shore R. Co. v.
Doelger, 127 Cal. App. 2d 392, 399, 274 P.2d
23 (1st Dist. 1954); Marlin v. Robinson, 123
Cal. App. 373, 375, 11 P.2d 70 (1st Dist.
1932); Anderson v. Willson, 48 Cal. App. 289,
295, 191 P. 1016 (2d Dist. 1920).
284 Cal. Rptr. 560 (2d Dist. 1991).
2d 82, 914 P.2d 160 (1996).
See 8:1 (deeds; rules of interpretation),
15:16 (express grant or reservation, rules of
construction), 15:18 ("reservation" of an
Rafael, 46 Cal. 2d 669, 678, 298 P.2d 15
(1956); Pellissier v. Corker, 103 Cal. 516, 517,
37 P. 465 (1894) (grant for an "alleyway");
Warren v. Atchison, T. & S. F. Ry. Co., 19 Cal.
1971); Johnson v. Ocean Shore Railroad Co.,
16 Cal. App. 3d 429, 433, 94 Cal. Rptr. 68 (1st
Dist. 1971); City of Los Angeles v. Pacific
Elec. Ry. Co., 168 Cal. App. 2d 224, 228, 335
P.2d 1042 (2d Dist. 1959); City of Los Angeles
v. Savage, 165 Cal. App. 2d 1, 5, 331 P.2d 211
(2d Dist. 1958).
The Johnson decision was criticized in
Machado v. Southern Pacific Transportation
Co., 233 Cal. App. 3d 347, 357-359, 284 Cal.
Rptr. 560 (2d Dist. 1991): " . . . Johnson
overstates the importance of the location of
reference to the right of way in the deed.
Johnson plainly suggests that if such words are
found in the granting clause, they will operate
to limit the grant, but if found in the habendum
or other later clause, will not operate to limit
the grant. This is not an accurate statement of
California law, and places more importance on
the location of such words of limitation rather
than on the words themselves."
Court, 13 Cal. 4th 232, 243, 52 Cal. Rptr. 2d
82, 914 P.2d 160 (1996).
[FN10] Yuba Inv. Co. v. Yuba Consol. Gold
Fields, 184 Cal. 469, 474, 194 P. 19 (1920);
City of Glendora v. Faus, 148 Cal. App. 2d
920, 926, 307 P.2d 976 (2d Dist. 1957); Las
Posas Water Co. v. Ventura County, 97 Cal.
App. 296, 299, 275 P. 817 (2d Dist. 1929)
(overruled on other grounds by People, By and
Through Department of Public Works v.
Thompson, 43 Cal. 2d 13, 20, 271 P.2d 507
(1954)); Cooper v. Selig, 48 Cal. App. 228,
230-237, 191 P. 983 (3d Dist. 1920).
See Concord & Bay Point Land Co. v. City of
Concord, 229 Cal. App. 3d 289, 294-297, 280
The applicable principle was summarized in
Marshall v. Standard Oil Co. of California, 17
Cal. App. 2d 19, 23, 61 P.2d 520 (3d Dist.
1936), as follows: "Where the purpose for
which the deed is executed appears in the
habendum clause, the authorities universally
hold that such declaration does not debase the
fee, or whatever interest is conveyed in the
granting clause. This principle, however, does
not apply where the qualifying words appear in
the granting clause of the deed."
[FN11] People, By and Through Department of
Public Works v. Thompson, 43 Cal. 2d 13, 21,
271 P.2d 507 (1954); Highland Realty Co. v.
City of San Rafael, 46 Cal. 2d 669, 674, 676,
298 P.2d 15 (1956); Parks v. Gates, 186 Cal.
151, 154, 199 P. 40 (1921); Pellissier v.
Corker, 103 Cal. 516, 517, 37 P. 465 (1894);
City of Los Angeles v. Savage, 165 Cal. App.
2d 1, 5-7, 331 P.2d 211 (2d Dist. 1958); Basin
Oil Co. of Cal. v. City of Inglewood, 125 Cal.
App. 2d 661, 663, 271 P.2d 73 (2d Dist. 1954);
Marlin v. Robinson, 123 Cal. App. 373, 375,
11 P.2d 70 (1st Dist. 1932); Anderson v.
Willson, 48 Cal. App. 289, 294-297, 191 P.
1016 (2d Dist. 1920). See Johnson v. Ocean
Shore Railroad Co., 16 Cal. App. 3d 429, 433,
94 Cal. Rptr. 68 (1st Dist. 1971); Barnett v.
Barnett, 104 Cal. 298, 301, 37 P. 1049 (1894);
Montgomery v. Sturdivant, 41 Cal. 290, 291,
1871 WL 1374 (1871); Jacobs v. All Persons,
etc., 12 Cal. App. 163, 166-170, 106 P. 896
(1st Dist. 1909).
See 15:18 ("reservation" of an easement, or
See also Restatement, Property, 471; Deed to
railroad company as conveying fee or
easement, 6 A.L.R.3d 973; Deed as conveying
fee or easement, 136 A.L.R. 379.
Transportation Co., 233 Cal. App. 3d 347, 357-
359, 284 Cal. Rptr. 560 (2d Dist. 1991).
See City and County of San Francisco v. Union
Pacific R.R. Co., 50 Cal. App. 4th 987, 995-
996, 58 Cal. Rptr. 2d 1 (1st Dist. 1996), as
modified, (Nov. 7, 1996).
[FN13] Civ. Code, 1069.
of construction).
[FN14] Civ. Code, 1070.
[FN15] Civ. Code, 1105.
of construction).
But see Murphy Slough Assn. v. Avila, 27 Cal.
App. 3d 649, 655-658, 104 Cal. Rptr. 136 (5th
Dist. 1972).
[FN16] Concord & Bay Point Land Co. v. City
of Concord, 229 Cal. App. 3d 289, 294-297,
280 Cal. Rptr. 623 (1st Dist. 1991).
[FN17] Severns v. Union Pacific Railroad Co.,
101 Cal. App. 4th 1209, 125 Cal. Rptr. 2d 100
(2d Dist. 2002), as modified on denial of reh'g,
(Sept. 30, 2002).
Rafael, 46 Cal. 2d 669, 677, 298 P.2d 15
(1956); Coon v. Sonoma Magnesite Co., 182
Cal. 597, 601, 189 P. 271 (1920); Warren v.
Atchison, T. & S. F. Ry. Co., 19 Cal. App. 3d
24, 35, 96 Cal. Rptr. 317 (4th Dist. 1971); City
of Glendora v. Faus, 148 Cal. App. 2d 920,
925, 307 P.2d 976 (2d Dist. 1957); Ocean
Shore R. Co. v. Doelger, 127 Cal. App. 2d 392,
399, 274 P.2d 23 (1st Dist. 1954); Tamalpais
Land & Water Co. v. Northwestern Pac. R.
Co., 73 Cal. App. 2d 917, 928, 167 P.2d 825
(1st Dist. 1946); Moakley v. Los Angeles Pac.
Ry. Co., 139 Cal. App. 421, 423-425, 34 P.2d
218 (1st Dist. 1934); City of San Gabriel v.
Pacific Electric Ry. Co., 129 Cal. App. 460,
464, 18 P.2d 996 (1st Dist. 1933).
See Johnson v. Ocean Shore Railroad Co., 16
Dist. 1971) (deed to railroad company as
conveying fee or easement).
See, for example, People v. Ocean Shore R.R.,
32 Cal. 2d 406, 415, 196 P.2d 570, 6 A.L.R.2d
1179 (1948), where the court recognizes that a
prescriptive right for a railroad right of way
usually established merely an easement and
does not create a fee title in the railroad.
[FN19] People, By and Through Department of
Public Works v. Thompson, 43 Cal. 2d 13, 19,
271 P.2d 507 (1954); Murphy Slough Assn. v.
Avila, 27 Cal. App. 3d 649, 655-658, 104 Cal.
Rptr. 136 (5th Dist. 1972) (reclamation district
grantee); City of Los Angeles v. Pacific Elec.
Ry. Co., 168 Cal. App. 2d 224, 228, 335 P.2d
1042 (2d Dist. 1959); Forgeus v. Santa Cruz
County, 24 Cal. App. 193, 199, 140 P. 1092
(3d Dist. 1914).
A public agency can acquire either a fee or an
easement for a highway. Sts. & Hy. Code,
104.
[FN20] Some decisions have concluded that a
fee has been conveyed to the railroad. See City
of Manhattan Beach v. Superior Court, 13 Cal.
4th 232, 246-248, 52 Cal. Rptr. 2d 82, 914 P.2d
160 (1996); Behlow v. Southern Pac. R. Co.,
130 Cal. 16, 19, 62 P. 295 (1900); Concord &
Bay Point Land Co. v. City of Concord, 229
Cal. App. 3d 289, 294-297, 280 Cal. Rptr. 623
(1st Dist. 1991); Midstate Oil Co. v. Ocean
Shore R. Co., 93 Cal. App. 704, 708, 270 P.
216 (1st Dist. 1928); Moakley v. Blog, 90 Cal.
App. 96, 99, 265 P. 548 (1st Dist. 1928);
Palmer v. Los Angeles, O.P. & S.M. Ry. Co.,
55 Cal. App. 519, 521, 203 P. 1012 (1st Dist.
1921); Hannah v. Southern Pac. R. Co., 48 Cal.
App. 517, 521, 192 P. 304 (2d Dist. 1920).
See Deed to railroad company as conveying fee
or easement, 6 A.L.R.3d 973; Deed as
conveying fee or easement, 136 A.L.R. 379;
Nature and extent of interest acquired by
railroad in right of way by adverse possession
or prescription, 127 A.L.R. 517.
Court, 13 Cal. 4th 232, 245, 52 Cal. Rptr. 2d
82, 914 P.2d 160 (1996); Concord & Bay Point
Land Co. v. City of Concord, 229 Cal. App. 3d
289, 294-297, 280 Cal. Rptr. 623 (1st Dist.
1991); Murphy Slough Assn. v. Avila, 27 Cal.
1972); Warren v. Atchison, T. & S. F. Ry. Co.,
19 Cal. App. 3d 24, 35, 96 Cal. Rptr. 317 (4th
Dist. 1971); Tamalpais Land & Water Co. v.
Northwestern Pac. R. Co., 73 Cal. App. 2d 917,
927, 167 P.2d 825 (1st Dist. 1946).
2d 82, 914 P.2d 160 (1996).
[FN23] Concord & Bay Point Land Co. v. City
of Concord, 229 Cal. App. 3d 289, 294-297,
280 Cal. Rptr. 623 (1st Dist. 1991).
Transportation Co., 233 Cal. App. 3d 347, 357-
359, 284 Cal. Rptr. 560 (2d Dist. 1991).
[FN25] Johnson v. Ocean Shore Railroad Co.,
16 Cal. App. 3d 429, 433, 94 Cal. Rptr. 68 (1st
Dist. 1971).
284 Cal. Rptr. 560 (2d Dist. 1991).

MILCALRE 15:17

Kenneth Styles

4. Easements by Necessity
15:27. Requirements for creation;

common grantor
Policy of the easement by necessity. The
easement by necessity is of common law origin
and is a product of the public policy that favors
the productive use of land and discourages the
waste of assets merely because of a lack of
access.[FN1] It arises from an implied grant or
reservation to support the public policy that
land should not be rendered unfit for
occupancy or cultivation.[FN2] Based on this
policy, in certain limited circumstances an
easement may be implied where it is
"absolutely essential" as access to a dominant
tenement.[FN3] A way of necessity cannot be
extinguished so long as the necessity
exists.[FN4] An easement by necessity may
persist even though the original grantor and
grantee no longer own the relevant
properties.[FN5]
Case Example: One court majority, in dictum,
noted that creation of an easement by necessity
is founded upon the public policy against
permitting land to remain in perpetual idleness,
and concluded that such an easement would not
be implied unless the land was "capable of
being developed."[FN6] The minority
disagreed with the majoritys standard of
"developability."[FN7]
Comment: Given the expanded use of
property for "non-development" (e.g.,
conservation easement or environmental
mitigation), a strict requirement of
"developabiltiy" would appear to be
unworkable.
Circumstances when an easement by
necessity arises. Whenever a landowner sells
one of two or more parcels, and the parcel sold
is completely landlocked by the remaining
property of the grantor, or partly by the land of
the grantor and partly by the land of others, in
absence of an express intention to the contrary,
the law implies that the parties intended to
create an easement across the remaining land
of the grantor to benefit the property
conveyed.[FN8]
Requirements for creation. An easement is
created because of necessity only in very
limited circumstances where (1) the servient
and dominant tenements were in common
ownership at some point in time and (2), as a
result of a conveyance by the common owner,
one parcel became completely
landlocked.[FN9]
Creation is a question of fact. Some court
decisions have held that the mere landlocking
of a parcel after the conveyance by a common
owner is sufficient to create the easement as a
matter of law.[FN10] However, the majority of
decisions have held that the creation of an
easement by necessity depends on the
presumed intent of the parties as determined
from the physical condition of the respective
parcels of property, the agreements between
the parties, the contracts and instruments of
conveyance, and all of the surrounding facts
and circumstances.[FN11]
When the conditions exist for the creation of an
easement of necessity, there is a presumption
that the grantor intended to create an easement
even though there was no reference to an
easement in the sales contract or deed. The
presumption shifts the burden of proof to the
owner of the purported servient tenement to
prove that the grantor did not intend to grant or
reserve an easement.[FN12] However, this
presumption is rebuttable, and the easement
will not be created contrary to the
expressed[FN13] or implied[FN14] intention
of the parties. For example, the fact that the
landlocked parcel is "virtually inaccessible"
over the land retained by the grantor is
evidence that the grantor did not intend to
create an easement.
Case Example: The necessity arising from the
absence of access to a parcel merely raises an
"implication of a grant" of an easement, and
the knowledge that the parcel was landlocked
at the time of the conveyance, that there was no
existing access, and that there were no
representations by the grantor, was sufficient to
show an "express understanding" that the
grantee would not have an easement.[FN15]
Case Example: All of the essential
requirements existed for creation of an implied
easement by necessity over the land retained by
the grantor, but the court concluded that there
was no easement. The statement by the
grantor's agent 46 years after the conveyance
and after the grantor's death, and the difficulty
of the terrain, were sufficient to overcome the
presumption, based on the rule that the
grantor's disclaimer is substantial evidence that
there was no intent to create an
easement.[FN16]
Common grantor. A common grantor of both
the dominant and servient tenements is
essential in order to imply an easement by
necessity. There cannot be an easement by
necessity when there has not been a common
grantor who conveyed the landlocked parcel to
the claimant or predecessor to the claimant, or
who has conveyed the servient tenement and
retained a landlocked parcel.[FN17] There
must be a relationship of grantor and grantee
between the owners of the dominant and
servient tenements.[FN18] However, the
easement can arise even though the common
grantor merely has an equitable estate in the
retained parcel that he or she was purchasing
pursuant to an installment contract of
sale.[FN19]
A government agency as a common grantor.
When the federal or state government, or other
government agency with the power of eminent
domain, is the common grantor, an easement of
necessity may be created against the
government,[FN20] but the government agency
cannot establish an easement by necessity over
land it has conveyed because its power of
eminent domain removes the strict necessity
required for the creation of an easement by
necessity.[FN21]
Creation on partition. When a partition of
jointly-held property results in one of the
parcels not having access to a public road, the
court can create an easement by necessity in
favor of the landlocked parcel over the parcel
distributed to the other cotenant even though
there has been no preexisting use of the
easement.[FN22] However, in such cases the
easement can only be located on property that
is completely owned by the other
cotenant.[FN23]
The easement is appurtenant. The claim for
an easement need not be made by the
immediate grantee from the common grantor.
Once the operative facts occur, the easement
arises by implication and is appurtenant to the
dominant tenement,[FN24] and as long as the
necessity continues the easement is transferred
with a conveyance of the dominant tenement
even though it is not referred to in the
deed.[FN25] There is no period of limitations
applicable to the claim by the owner of the
dominant tenement that there is an easement by
necessity over the servient tenement.[FN26]
Therefore, any successive owner of the
dominant tenement can claim the easement
even though there have been intervening
transfers of the dominant tenement between the
conveyance by the common grantor to the first
grantee and the conveyance to the grantee
claiming the easement.[FN27]
Easement can be created by implied
reservation. In most cases, the grantee is
seeking an easement by implication over the
land retained by the grantor as an appurtenance
to the land conveyed. In other words, the usual
situation involves the need for an implied grant
of an easement by necessity. However, the
easement also can be created by an implied
reservation where, as a result of a conveyance
of part of his or her property, the land retained
by the grantor is landlocked.[FN28]
Case Example: The grantor acquired five
contiguous parcels and subsequently
transferred four of them. As a result of these
conveyances, the parcel retained by the grantor
was completely landlocked. The grantor
alleged that he had made an agreement with the
grantees that if an easement could not be
acquired from another neighboring landowner,
the grantees would give the grantor an
easement over their property. When he was
unable to acquire the other easement, the court
affirmed his claim to an implied easement by
necessity across the land of the
grantees.[FN29]
Implied easement for utilities. Easements
created by necessity usually involve an access
road to a parcel of property that is otherwise
landlocked. However, the same implication
may arise for other types of easements. For
example, a parcel of property may have a road
access but lack access for utilities. The same
need would exist for the creation of an
easement by necessity for utility pipes,
conduits, or wires.[FN30]
In certain cases, a private party can condemn
an easement across the property of another for
utilities, sewer, and drainage.[FN31]
Cases:
A government agency as a common grantor.
In Murphy v. Burch, 46 Cal. 4th 157, 92 Cal.
Rptr. 3d 381, 205 P.3d 289 (2009), in
addressing the common law doctrine of an
easement by necessity when title to both
parcels traces back to land patents deeded by
the federal government, the California
Supreme Court held that the required element
of "strict necessity" was not satisfied if the
federal government first deeded out the
servient tenement without reserving an
easement because the dominant tenement - i.e.,
the federal government - would retain the
power of eminent domain. The Court
acknowledged that strict necessity could exist
if the federal government first deeded out the
dominant tenement because the power of
eminent domain would not no longer exist. The
Court's holding creates a situation where the
existence of an easement by necessity (based
on the common ownership of an entity with the
power of eminent domain) will depend upon
the timing of the deeding out of the subject
parcels, and thus distinguishing between an
implied reservation of an easement (e.g., Leo
Sheep Co. v. U. S., 440 U.S. 668, 679-681, 99
S. Ct. 1403, 59 L. Ed. 2d 677 (1979)) [no strict
necessity] and an implied grant of an easement
(e.g., Kellogg v. Garcia, 102 Cal. App. 4th 796,
799, 125 Cal. Rptr. 2d 817 (3d Dist. 2002))
[strict necessity].
[END OF SUPPLEMENT]
[FN1] Kellogg v. Garcia, 102 Cal. App. 4th

796, 125 Cal. Rptr. 2d 817 (3d Dist. 2002);
Hewitt v. Meaney, 181 Cal. App. 3d 361, 366,
226 Cal. Rptr. 349 (6th Dist. 1986); Lichty v.
Sickels, 149 Cal. App. 3d 696, 700, 197 Cal.
Rptr. 137 (4th Dist. 1983); Reese v. Borghi,
216 Cal. App. 2d 324, 331, 30 Cal. Rptr. 868
(1st Dist. 1963).
[FN2] Daywalt v. Walker, 217 Cal. App. 2d
669, 672-673, 31 Cal. Rptr. 899 (5th Dist.
1963).
[FN3] Horowitz v. Noble, 79 Cal. App. 3d 120,
130, 144 Cal. Rptr. 710 (1st Dist. 1978).
See 15:28 (requirement of strict necessity).
796, 804, 125 Cal. Rptr. 2d 817 (3d Dist.
2002).
796, 804, 125 Cal. Rptr. 2d 817 (3d Dist.
2002).
[FN6] Roemer v. Pappas, 203 Cal. App. 3d
201, 207, 249 Cal. Rptr. 743 (1st Dist. 1988).
201, 207, 249 Cal. Rptr. 743 (1st Dist. 1988)
(dictum).
[FN8] Mesmer v. Uharriet, 174 Cal. 110, 112,
162 P. 104 (1916); Barnard v. Lloyd, 85 Cal.
131, 132, 24 P. 658 (1890); Kripp v. Curtis, 71
Cal. 62, 64, 11 P. 879 (1886); Taylor v.
Warnaky, 55 Cal. 350, 350-351, 1880 WL
1904 (1880); Lichty v. Sickels, 149 Cal. App.
3d 696, 699, 197 Cal. Rptr. 137 (4th Dist.
1983); Applegate v. Ota, 146 Cal. App. 3d 702,
713, 194 Cal. Rptr. 331 (2d Dist. 1983)
(dictum); Reese v. Borghi, 216 Cal. App. 2d
324, 331, 30 Cal. Rptr. 868 (1st Dist. 1963);
Beem v. Reichman, 36 Cal. App. 258, 263, 171
P. 972 (3d Dist. 1918).
See Tarr v. Watkins, 180 Cal. App. 2d 362,
366, 4 Cal. Rptr. 293 (2d Dist. 1960); Marin
County Hospital Dist. v. Cicurel, 154 Cal. App.
2d 294, 302, 316 P.2d 32 (1st Dist. 1957).
See also Way of necessity where only part of
land is inaccessible, 10 A.L.R.4th 500; Way of
necessity over another's land, where a means of
access does exist, but is claimed to be
inadequate, inconvenient, difficult, or costly,
10 A.L.R.4th 447. See also Cal. Jur. 3d,
Easements and Licenses 32 to 36; Witkin,
12 Summary of California L., 398, 399
(10th ed.).
[FN9] Moores v. Walsh, 38 Cal. App. 4th
1046, 1049, 45 Cal. Rptr. 2d 389, 103 Ed. Law
Rep. 794 (1st Dist. 1995); Roemer v. Pappas,
203 Cal. App. 3d 201, 205-206, 249 Cal. Rptr.
743 (1st Dist. 1988); Lichty v. Sickels, 149
Dist. 1983); Reese v. Borghi, 216 Cal. App. 2d
324, 332, 30 Cal. Rptr. 868 (1st Dist. 1963).
[FN10] Lichty v. Sickels, 149 Cal. App. 3d
696, 700-702, 197 Cal. Rptr. 137 (4th Dist.
1983); Reese v. Borghi, 216 Cal. App. 2d 324,
331, 30 Cal. Rptr. 868 (1st Dist. 1963).
201, 207-208, 249 Cal. Rptr. 743 (1st Dist.
1988).
[FN12] Hewitt v. Meaney, 181 Cal. App. 3d
361, 366, 367, 226 Cal. Rptr. 349 (6th Dist.
1986).
[FN13] San Joaquin Valley Bank v. Dodge,
125 Cal. 77, 57 P. 687 (1899); Daywalt v.
Walker, 217 Cal. App. 2d 669, 672-674, 31
Cal. Rptr. 899 (5th Dist. 1963); Los Angeles
County v. Bartlett, 203 Cal. App. 2d 523, 529,
21 Cal. Rptr. 776 (2d Dist. 1962).
201, 207-208, 249 Cal. Rptr. 743 (1st Dist.
1988); Hewitt v. Meaney, 181 Cal. App. 3d
361, 366, 226 Cal. Rptr. 349 (6th Dist. 1986).
669, 675, 31 Cal. Rptr. 899 (5th Dist. 1963).
361, 366, 367, 226 Cal. Rptr. 349 (6th Dist.
1986).
[FN17] Applegate v. Ota, 146 Cal. App. 3d
702, 713, 194 Cal. Rptr. 331 (2d Dist. 1983).
See What constitutes unity of title or ownership
sufficient for creation of an easement by
implication or way of necessity, 94 A.L.R.3d
502.
669, 672, 31 Cal. Rptr. 899 (5th Dist. 1963)
(dictum); Lapique v. Morrison, 29 Cal. App.
136, 137, 154 P. 881 (2d Dist. 1915); Bully
Hill Copper Mining & Smelting Co. v. Bruson,
4 Cal. App. 180, 183, 87 P. 237 (3d Dist.
1906).
201, 206, 249 Cal. Rptr. 743 (1st Dist. 1988).
796, 806, 125 Cal. Rptr. 2d 817 (3d Dist.
2002).
[FN21] See 15:28 (requirement for strict
necessity).
[FN22] Blum v. Weston, 102 Cal. 362, 366, 36
P. 778 (1894); Kripp v. Curtis, 71 Cal. 62, 64,
11 P. 879 (1886); Lichty v. Sickels, 149 Cal.
App. 3d 696, 700-702, 197 Cal. Rptr. 137 (4th
Dist. 1983).
See 12:16 (partition by physical division of
the property).
[FN23] See 15:52 (location of easements;
easements by necessity).
162 P. 104 (1916); Blum v. Weston, 102 Cal.
362, 367, 36 P. 778 (1894); Kripp v. Curtis, 71
Cal. 62, 65, 11 P. 879 (1886); Lichty v.
Sickels, 149 Cal. App. 3d 696, 699, 197 Cal.
Rptr. 137 (4th Dist. 1983).
[FN25] See 15:6 (appurtenant easements;
tenement).
[FN26] Lichty v. Sickels, 149 Cal. App. 3d
696, 700-702, 197 Cal. Rptr. 137 (4th Dist.
1983).
[FN27] Blum v. Weston, 102 Cal. 362, 367, 36
P. 778 (1894); Roemer v. Pappas, 203 Cal.
1988); Lichty v. Sickels, 149 Cal. App. 3d 696,
700-702, 197 Cal. Rptr. 137 (4th Dist. 1983);
Taylor v. Warnaky, 55 Cal. 350, 351, 1880 WL
1904 (1880).
See also Failure or delay of original grantee to
assert or exercise right of way by necessity as
precluding subsequent assertion or exercise,
133 A.L.R. 1393.
361, 368, 226 Cal. Rptr. 349 (6th Dist. 1986);
Reese v. Borghi, 216 Cal. App. 2d 324, 331, 30
But see Lincoln Sav. & Loan Assn. v. Riviera
Estates Assn., 7 Cal. App. 3d 449, 459, 87 Cal.
Rptr. 150 (2d Dist. 1970).
[FN29] Reese v. Borghi, 216 Cal. App. 2d 324,
331-333, 30 Cal. Rptr. 868 (1st Dist. 1963).
[FN30] See Frederick v. Louis, 10 Cal. App.
2d 649, 651, 52 P.2d 533 (1st Dist. 1935).
For a discussion of this problem in the context
of partial releases from the lien of a deed of
trust, see 10:119.
[FN31] See 15:44 (creation of easements,
condemnation).

MILCALRE 15:27
Kenneth Styles

4. Easements by Necessity
15:28. Requirement of strict necessity
Only implied if there is strict necessity. In

order to establish an easement by necessity, the
dominant tenement must be completely
landlocked, the easement must be strictly
necessary for access to the dominant tenement,
and there cannot be any other possible means
of access.[FN1] "The right of way from
necessity must be in fact what the term
naturally imports, and cannot exist except in
cases of strict necessity. It will not exist where
a man can get to his property through his own
land. That the way over his own land is too
steep or too narrow, or that other and like
difficulties exist, does not alter the case, and it
is only where there is no way through his own
land that a grantee can claim a right over that
of his grantor."[FN2]
Strict necessity when the owner has the
power of eminent domain. When the federal
government is the common grantor, an
easement may be implied by necessity against
the federal government over land owned by the
government, unless the owner of the
landlocked parcel has the power of eminent
domain.[FN3] However, the federal
government cannot establish an implied
easement over land it has conveyed because it
has the power of eminent domain.[FN4]
Case Example: The owner of a landlocked
parcel brought an action to establish an
easement across adjacent property in order to
have access to a public road. The federal
government once owned the landlocked parcel.
When the landlocked parcel was originally
conveyed by the federal government to the
State of California in 1873, it was surrounded
by federal land, including the parcel that would
be the servient tenement for the claimed
easement. The five parcels that surround the
landlocked parcel were conveyed by the federal
government into private ownership between
1874 and 1881. The state subsequently
conveyed the landlocked property to the
University of California, which sold the
property to the current owner.
The court held that the owner of the landlocked
parcel did not have an easement by necessity
over the adjacent property because there is no
strict necessity for an easement when the
landlocked parcel is owned by a government
agency with the power of eminent domain.
During the period that the dominant tenement
was owned by the state and the servient
tenement was owned by the federal
government, the state could have claimed an
easement by necessity over the federal land,
because the state could not have acquired an
easement by eminent domain against the
federal government.[FN5]
However, an easement by necessity only
continues while there is strict necessity. When
the servient tenement was conveyed into
private ownership, the state, and subsequently
the University of California, had the power to
acquire the easement across the servient
tenement by eminent domain, and at that time
the easement by necessity was extinguished.
When the dominant tenement was acquired
from the university, the current owner of the
landlocked parcel did not acquire an easement,
because the university did not have an
easement to convey.[FN6]
Continues only as long as strict necessity
continues. The easement by necessity arises
only in cases of strict necessity, and it only
continues as long as the necessity exists. It
ceases when the owner of the dominant
tenement acquires some other access that is
reasonably sufficient for the beneficial
enjoyment of the dominant estate.[FN7]
Easement on division of title distinguished.
The implication of an easement on a division
of title and the implication of an easement by
necessity are two separate methods of creating
an easement. In division-of-title cases, the
easement need only be reasonably necessary
and convenient for the use and benefit of the
dominant tenement, but there must have been
an obvious and permanent preexisting use of
the easement.[FN8] When an easement is
implied because of necessity, there must be an
absolute necessity for the easement, but there
is no requirement of a preexisting use,[FN9]
and usually there has not been any prior use.
No prescriptive rights. The owner of the
dominant tenement cannot acquire prescriptive
rights to use the easement as long as the
necessity continues.[FN10]
Cases:
Strict necessity when the owner has the
power of eminent domain. In Murphy v.
Burch, 46 Cal. 4th 157, 92 Cal. Rptr. 3d 381,
205 P.3d 289 (2009), the California Supreme
Court addressed the common law doctrine of
an easement by necessity when title to both
parcels traces back to land patents deeded by
the federal government. The California
Supreme Court held that the required element
of "strict necessity" was not satisfied if the
federal government first deeded out the
servient tenement without reserving an
easement because the dominant tenementi.e.,
the federal governmentwould retain the
power of eminent domain. The Court
acknowledged that strict necessity could exist
if the federal government first deeded out the
dominant tenement because the power of
eminent domain would not no longer exist.
Thus, when the required element of common
owenership relates back to a governmental
entity that possessed the power of eminent
domain, the existence of an easment by
necessity will depend upon the timing of the
deeding out of the respective parcels. The
Court distinguished between an implied
reservation of an easement (e.g., Leo Sheep
Co. v. U. S., 440 U.S. 668, 679-681, 99 S. Ct.
1403, 59 L. Ed. 2d 677 (1979)) [no strict
necessity] and an implied grant of an easement
(e.g., Kellogg v. Garcia, 102 Cal. App. 4th 796,
799, 125 Cal. Rptr. 2d 817 (3d Dist. 2002))
[strict necessity].
[END OF SUPPLEMENT]

162 P. 104 (1916); Corea v. Higuera, 153 Cal.
451, 454, 95 P. 882 (1908); Roemer v. Pappas,
203 Cal. App. 3d 201, 206, 249 Cal. Rptr. 743
(1st Dist. 1988); Lichty v. Sickels, 149 Cal.
1983); Horowitz v. Noble, 79 Cal. App. 3d
120, 130, 144 Cal. Rptr. 710 (1st Dist. 1978);
Reese v. Borghi, 216 Cal. App. 2d 324, 331, 30
Cal. Rptr. 868 (1st Dist. 1963); Los Angeles
County v. Bartlett, 203 Cal. App. 2d 523, 528,
21 Cal. Rptr. 776 (2d Dist. 1962); Zunino v.
Gabriel, 182 Cal. App. 2d 613, 616, 6 Cal.
Rptr. 514, 80 A.L.R.2d 1088 (1st Dist. 1960),
80 A.L.R.2d 1088; Tarr v. Watkins, 180 Cal.
1960); Marin County Hospital Dist. v. Cicurel,
154 Cal. App. 2d 294, 302, 316 P.2d 32 (1st
Dist. 1957).
See Way of necessity where only part of land is
inaccessible, 10 A.L.R.4th 500; Way of
necessity over another's land, where a means of
access does exist, but is claimed to be
inadequate, inconvenient, difficult, or costly,
10 A.L.R.4th 447; Easements: way by
necessity where property is accessible by
navigable water, 9 A.L.R.3d 600.
[FN2] Kripp v. Curtis, 71 Cal. 62, 65, 11 P.
879 (1886).
796, 125 Cal. Rptr. 2d 817 (3d Dist. 2002);
Moores v. Walsh, 38 Cal. App. 4th 1046, 1050,
45 Cal. Rptr. 2d 389, 103 Ed. Law Rep. 794
(1st Dist. 1995); State of Utah v. Andrus, 486
F. Supp. 995, 10 Envtl. L. Rep. 20570 (D. Utah
1979).
In Kinscherff v. U.S., 586 F.2d 159, 161 (10th
Cir. 1978), the federal government had
patented the subject land to the owner's
predecessor in interest. The property was
landlocked, but the federal government
constructed a road access across its adjacent
property that could provide access to the
owner's property. The court held that the owner
could state a cause of action to quiet title to a
nonexclusive easement across the road on the
theory of an implied easement of necessity,
depending on the facts.
[FN4] Leo Sheep Co. v. U. S., 440 U.S. 668,
679-781, 99 S. Ct. 1403, 59 L. Ed. 2d 677
(1979).
In Montana Wilderness Ass'n, Nine Quarter
Circle Ranch v. U. S. Forest Service, 655 F.2d
951, 953, 16 Env't. Rep. Cas. (BNA) 1449, 11
Envtl. L. Rep. 20521 (9th Cir. 1981), the court
held that when the checkerboard land grants
were made to the railroads, the United States
did not grant easements by implication to the
railroads over the lands retained by the
government.
[FN5] See State of Utah v. Andrus, 486 F.
Supp. 995, 10 Envtl. L. Rep. 20570 (D. Utah
1979).
1046, 1049, 45 Cal. Rptr. 2d 389, 103 Ed. Law
Rep. 794 (1st Dist. 1995).
796, 125 Cal. Rptr. 2d 817 (3d Dist. 2002). See
15:84 (termination of easement by necessity).
[FN8] See 15:22 (existing known use).
1046, 1049, 45 Cal. Rptr. 2d 389, 103 Ed. Law
Rep. 794 (1st Dist. 1995); Hewitt v. Meaney,
181 Cal. App. 3d 361, 368, 226 Cal. Rptr. 349
(6th Dist. 1986).
[FN10] See 15:29 (elements and
requirements; comparison to other methods of
creation).

MILCALRE 15:28
Kenneth Styles

5. Prescription

15:29. Elements and requirements
Required factual elements. In order to

establish an easement by prescription it must
be shown that the easement was (1) used
continuously for a period of five years[FN1]
and (2) possessed in a manner that was open,
notorious, and clearly visible to the owner of
the burdened land[FN2] and hostile and
adverse[FN3] to the owner.[FN4]
Question of fact. Whether the easement has
been used sufficiently to create an easement by
prescription is a question of fact, and the
claimant is entitled to a jury trial on the factual
issues.[FN5]
Nature of required use. An easement by
prescription may be acquired only where the
use of the easement is under such
circumstances and of such a nature that it
unlawfully infringes on the rights of the owner
of the servient tenement. A prescriptive right
can only be established by a property owner's
failure to interfere with a use of property that
he or she has a legal right to prevent.[FN6] To
acquire a prescriptive right, the user must
commit a trespass during the prescriptive
period until the right has become vested.[FN7]
However, where the use involves overflights
from an airport that create noise, fumes, and
vibrations, the use need not be a trespass in the
nature of a use of the surface of the land.[FN8]
Necessity not required. Necessity is not a
required element for the creation of a
prescriptive easement. The fact that an
easement is or is not necessary as a means of
access to the user's property is irrelevant in
determining whether the use has been
sufficient to create a prescriptive right. For
example, the user can acquire a roadway
easement by prescription even though other
access to the property exists.[FN9]
Prescriptive use of easement implied by
necessity. When an easement is implied
because it is necessary to provide access to a
landlocked parcel, the easement arises by
operation of law and the servient tenement
cannot prevent its use.[FN10] Because a
prescriptive easement can be established only
in situations where the owner of the servient
tenement has a legal right to prevent the use,
the owner of the dominant tenement cannot
acquire prescriptive rights to use the easement
as long as the necessity continues and until the
necessity terminates.[FN11]
No prescriptive rights against government
entity. A prescriptive right cannot be acquired
on real property owned by a federal, state or
local governmental entity.[FN12] If the public
does not own an interest in the property, but
only has a revocable right to use the property, a
user can acquire a prescriptive right to use the
property.[FN13]
Case Example: The servient owners gave a
license to the state to use the area where the
"easement" was located. The court noted that if
the state owned an easement a user could not
acquire a prescriptive easement at the same
location, but since the state merely had a
license, a prescriptive easement could be
established against the servient tenement
owners.[FN14]
No prescriptive right to continue public
nuisance. Even though the acts that give rise to
a prescriptive right often constitute a private
nuisance,[FN15] a person cannot acquire a
prescriptive right to maintain a public
nuisance.[FN16]
In gross or appurtenant. A prescriptive
easement can be either in gross or appurtenant
to other land owned by the user, depending on
how it was used, the nature of the easement,
and whether it was used in conjunction with a
particular dominant tenement.[FN17] An
example of an in gross prescriptive easement is
the acquisition of rights of use by a public
utility or an airport.
[FN1] See 15:33 (use requirements;

continuous and exclusive), 15:38
(prescriptive period).
[FN2] See 15:34 (visible, open, and
notorious).
[FN3] See 15:35 (hostile, adverse, and under
claim of right).
[FN4] Civ. Code, 1007; Code Civ. Proc.,
321; Warsaw v. Chicago Metallic Ceilings,
Inc., 35 Cal. 3d 564, 570, 199 Cal. Rptr. 773,
676 P.2d 584 (1984); Taormino v. Denny, 1
Cal. 3d 679, 686, 83 Cal. Rptr. 359, 463 P.2d
711 (1970); Barlow v. Frink, 171 Cal. 165,
170, 152 P. 290 (1915); Clarke v. Clarke, 133
Cal. 667, 669, 66 P. 10 (1901); Otay Water
Dist. v. Beckwith, 1 Cal. App. 4th 1041, 1045,
3 Cal. Rptr. 2d 223 (4th Dist. 1991), Field-
Escandon v. Demann, 204 Cal. App. 3d 228,
235, 251 Cal. Rptr. 49 (2d Dist. 1988), opinion
modified, (Sept. 27, 1988) and opinion
modified, (Sept. 29, 1988); Mesnick v. Caton,
183 Cal. App. 3d 1248, 1260, 228 Cal. Rptr.
779 (2d Dist. 1986); Connolly v. McDermott,
162 Cal. App. 3d 973, 976, 208 Cal. Rptr. 796
(3d Dist. 1984); Bennett v. Lew, 151 Cal. App.
3d 1177, 1183, 199 Cal. Rptr. 241 (2d Dist.
1984); Twin Peaks Land Co. v. Briggs, 130
Dist. 1982).
See 15:33 to 15:37 (use requirements),
15:38 (prescriptive period), 15:39 (payment
of taxes), 15:40 (enforcement by claimant).
See also Cook, Legal analysis in the law of
prescriptive easements, 15 So.Cal. L.Rev.
(1941).
[FN5] See 15:32 (burden or proof to establish
prescriptive easement).
[FN6] City of Los Angeles v. City of Glendale,
23 Cal. 2d 68, 79, 142 P.2d 289 (1943) (water);
Sullivan v. Zeiner, 98 Cal. 346, 349-352, 33 P.
209 (1893); Lakeside Ditch Co. v. Crane, 80
Cal. 181, 183, 22 P. 76 (1889); Drennen v.
County of Ventura, 38 Cal. App. 3d 84, 87,
112 Cal. Rptr. 907 (2d Dist. 1974) (avigation
easement to fly over land); Reinsch v. City of
Los Angeles, 243 Cal. App. 2d 737, 745, 52
Cal. Rptr. 613 (2d Dist. 1966); Phillips v.
Burke, 133 Cal. App. 2d 700, 705, 284 P.2d
809 (3d Dist. 1955); Hahn v. Curtis, 73 Cal.
App. 2d 382, 385-389, 166 P.2d 611 (3d Dist.
1946); Peck v. Howard, 73 Cal. App. 2d 308,
326-329, 167 P.2d 753 (2d Dist. 1946); Nelson
v. Robinson, 47 Cal. App. 2d 520, 526-528,
118 P.2d 350 (3d Dist. 1941).
See 15:34 (visible, open, and notorious),
15:35 (hostile, adverse, and under claim of
right).
[FN7] See Pen. Code, 602.
See 15:35 (hostile, adverse, and under claim
of right), 22:39 (nuisance; period of
limitations).
[FN8] In Baker v. Burbank-Glendale-Pasadena
Airport Authority, 220 Cal. App. 3d 1602,
1609, 270 Cal. Rptr. 337 (2d Dist. 1990),
opinion modified, (June 18, 1990) and
Institoris v. City of Los Angeles, 210 Cal. App.
3d 10, 258 Cal. Rptr. 418 (2d Dist. 1989), the
courts held that overflights from an airport that
created noise, vibration, fumes and other
discomfort to the extent that it could constitute
a "taking" or a nuisance was a sufficient
enough interference with the owner's rights to
commence the prescriptive period.
[FN9] Jordan v. Worthen, 68 Cal. App. 3d 310,
326, 137 Cal. Rptr. 282 (1st Dist. 1977);
Mathews v. Brinton, 132 Cal. App. 2d 433,
439, 282 P.2d 93 (4th Dist. 1955); Stevens v.
Mostachetti, 73 Cal. App. 2d 910, 912, 167
P.2d 809 (2d Dist. 1946).
But see 15:48 (termination of a toll road
franchise).
[FN10] See 15:27 (requirements for creation;
common grantor), 15:28 (requirement of
strict necessity).
[FN11] Martinelli v. Luis, 213 Cal. 183, 184, 1
P.2d 980 (1931); Applegate v. Ota, 146 Cal.
1983); Zunino v. Gabriel, 182 Cal. App. 2d
613, 616, 6 Cal. Rptr. 514, 80 A.L.R.2d 1088
(1st Dist. 1960); Moots v. Kasten, 90 Cal. App.
2d 734, 737, 203 P.2d 537 (2d Dist. 1949);
Smith v. Skrbek, 71 Cal. App. 2d 351, 360, 162
P.2d 674 (3d Dist. 1945).
See 15:28 (requirement of strict necessity),
15:29 (elements and requirements; comparison
to other methods of creation), 15:30 (adverse
possession compared), 15:37 (effect of
relationship between the parties).
[FN12] Civ. Code, 1007.
People v. Shirokow, 26 Cal. 3d 301, 311, 162
Cal. Rptr. 30, 605 P.2d 859 (1980) (attempt to
obtain a prescriptive right to use water against
the public and the state); Daly City v.
Holbrook, 39 Cal. App. 326, 329, 178 P. 725
(1st Dist. 1918).
See 17:25 (water rightsdefinitions and
common law rights), 17:26 (regulation of
water rights).
See also Acquisition by adverse possession or
use of public property held by municipal
corporation or other governmental unit
otherwise than for streets, alleys, parks, or
common, 55 A.L.R.2d 554.
[FN13] Guerra v. Packard, 236 Cal. App. 2d
272, 287, 46 Cal. Rptr. 25 (1st Dist. 1965).
[FN14] Guerra v. Packard, 236 Cal. App. 2d
272, 287, 46 Cal. Rptr. 25 (1st Dist. 1965).
[FN15] See Acquisition of easement or other
property right by prescription, predicated upon
acts amounting to a private nuisance, 152
A.L.R. 343.
See 22:4 to 22:12 (conduct constituting a
nuisance).
[FN16] See 22:37 (lapse of time for
injunction; public nuisances), 22:39
(nuisance; period of limitations).
[FN17] LeDeit v. Ehlert, 205 Cal. App. 2d 154,
165, 22 Cal. Rptr. 747 (1st Dist. 1962);
Balestra v. Button, 54 Cal. App. 2d 192, 197-
199, 128 P.2d 816 (3d Dist. 1942); Heenan v.
Bevans, 51 Cal. App. 277, 286-288, 196 P. 802
(3d Dist. 1921).
See also 15:6 (appurtenant easements;
tenement), 15:7 (easement in gross), 15:8
easement in gross), 15:31 (public or private
easement by prescription).

MILCALRE 15:29Chapter 15. Easements

Kenneth Styles

5. Prescription
15:30. Adverse possession compared
Distinguish prescriptive easements and

adverse possession. Since the early days of the
common law, title to real property could be
established by proof of long and continuous
adverse possession in the required
manner.[FN1] In a similar manner, an
easement to use the property of another can be
created by prescription on proof that the
property has been appropriately used for the
prescribed period. Although the requirements
are similar, adverse possession establishes fee
title to the real property occupied, whereas
prescription merely creates an easement in
favor of the user.[FN2]
Distinction in the rights acquired. When a
title is acquired by adverse possession, the
rights received are the benefits of a fee title
owner, which, among other rights, gives the
owner the right of exclusive possession to the
exclusion of all others, including the former
owner.[FN3] By contrast, a prescriptive
easement merely gives the holder of the
easement a limited right to use the property of
another[FN4] in the manner used during the
prescriptive period,[FN5] and the holder of the
easement cannot enlarge those rights.[FN6]
The easement holder acquires a nonexclusive
right of use, whereas the owner of the fee title
retains all consistent rights of fee title
ownership.[FN7]
No exclusive prescriptive easement. A
property owner cannot acquire an exclusive
prescriptive easement that is equivalent to fee
title.[FN8] "An exclusive prescriptive easement
is . . . a very unusual interest in land. The
notion of an exclusive prescriptive easement,
which as a practical matter completely
prohibits the true owner from using his land,
has no application to a simple backyard
dispute. . . . An easement, after all, is merely
the right to cross the land of another. . . . An
easement, . . . is not an ownership interest, and
certainly does not amount to a fee simple
estate."[FN9]
Case Example: The court of appeal affirmed
that a landowner could not acquire an exclusive
prescriptive easement over neighboring land by
enclosing that land with a fence. The
landowner's use of the neighboring land was
not in the nature of an easement. Instead, the
landowner had enclosed and possessed the land
(but the landowner could not establish adverse
possession because he had not satisfied the
necessary requirement of paying taxes for the
enclosed land). The court distinguished cases
which addressed equitable easements arising
from "relative hardship doctrine" as opposed to
a prescriptive easement.[FN10]
Case Example: A prior owner of property A
built a fence between property A and property
B in 1967. The owner of property B, who
purchased the property after the fence was
built, paid half of the cost, even though the
parties did not know whether the fence was
located on the property line. Property A was
sold in 1985 to the current owners, who knew
that the fence was not on the property line.
After property B was sold to the current
owners in 1990, the owner of property A
obtained a survey that showed that the fence
was 10 feet within the property line of property
A. He constructed a new fence on the surveyed
boundary. The 10-foot area between the
properties was used by the owner of property B
for vegetation, an irrigation system, and the
owner's dog. The owner of property B filed an
action to establish a prescriptive easement over
the 10-foot strip.
The court held that the owner of property B
could not establish title by adverse possession
to the disputed parcel because he had not paid
the taxes for the parcel. He could not acquire
an easement by prescription if the easement
were to be exclusive and grant rights
tantamount to a fee title. The easement
included a fence that barred the owner of
property A from physical access and excluded
his use of the property, except minimally for
light and air. B could not acquire a prescriptive
easement which is substantially equivalent to a
fee title, by satisfying the lesser requirements
for prescription.[FN11]
Exception. The courts have recognized an
exception to the prohibition on exclusive
prescriptive easements for cases involving
important purposes of essential public health,
safety or utility services.[FN12]
Case Example: A water district acquired
property by a deed that included 1.68 acres of
land that was not owned by the grantor. The
district was unaware of the error. In 1963, it
fenced all of the land described in its deed and
constructed a reservoir on the land that had
been used continuously since that time. The
use was readily apparent by viewing the
property. In 1972, the owner purchased 10
acres adjacent to the reservoir that included the
1.68 acres not owned by the district. The
district discovered the error in 1984 and
commenced an action to establish an exclusive
prescriptive easement on the 1.68 acres.
The court acknowledged that generally a
prescriptive easement cannot be exclusive. The
owner argued that because an exclusive
easement is tantamount to a fee, the possessor
must establish the requirements for adverse
possession, including the payment of taxes.
Although this is a correct rule in the usual case,
in this case the use was not tantamount to a fee,
because the property could only be used for a
reservoir, and the easement would terminate
when the possessor ceased using it for that
purpose. The court noted that the easement
must be exclusive to protect the public water
supply from contamination.[FN13]
Differences in the requirements. The
distinction between adverse possession and
prescription is important when analyzing and
comparing the requirements for the acquisition
of prescriptive rights and the title or interest
acquired by adverse possession. The
requirements for establishing title by adverse
possession and an easement by prescription are
similar,[FN14] but the nature of the required
uses differ.[FN15] For adverse possession the
user must pay the taxes assessed against the
property, though they are rarely separately
assessed against an area used as an
easement.[FN16] In some cases, the use is
sufficient to establish either a title or an
easement, but the possessor can only acquire
an easement because he or she did not pay the
taxes as required for adverse possession.
Case Example: The court held that title to a
19-inch strip of land along a boundary line was
not acquired by adverse possession because the
possessor had not paid the real property taxes,
but a prescriptive easement was created
because there is no requirement to pay the
taxes unless they are separately assessed to the
easement.[FN17]
[FN1] See 16:1 ("adverse possession"

defined; title acquired).
[FN2] Mehdizadeh v. Mincer, 46 Cal. App. 4th
1296, 1305, 54 Cal. Rptr. 2d 284 (2d Dist.
1996), as modified on denial of reh'g, (July 24,
1996) (holding that the holder of a prescriptive
easement does not have title, but merely a right
to use the land of another); Mesnick v. Caton,
183 Cal. App. 3d 1248, 1261, 228 Cal. Rptr.
779 (2d Dist. 1986); Thompson v. Dypvik, 174
Dist. 1985); Cleary v. Trimble, 229 Cal. App.
2d 1, 6, 39 Cal. Rptr. 776 (3d Dist. 1964).
See Highland Realty Co. v. City of San Rafael,
46 Cal. 2d 669, 677-683, 298 P.2d 15 (1956).
[FN3] See 9:3 (fee simple defined), 16:1
(adverse possession defined; title acquired).
easement).
[FN5] See 15:58 (use of prescriptive
easements).
easements), 15:54 to 15:62 (use of
easements).
[FN7] See 15:54 (extent of permitted use;
generally).
1296, 1305-1306, 54 Cal. Rptr. 2d 284 (2d
Dist. 1996), as modified on denial of reh'g,
(July 24, 1996); Silacci v. Abramson, 45 Cal.
Dist. 1996).
[FN9] Silacci v. Abramson, 45 Cal. App. 4th
558, 564, 53 Cal. Rptr. 2d 37 (6th Dist. 1996).
See City of Pasadena v. California-Michigan
Land & Water Co., 17 Cal. 2d 576, 578-589,
110 P.2d 983, 133 A.L.R. 1186 (1941).
[FN10] Kapner v. Meadowlark Ranch Ass'n,
(2d Dist. 2004).
[FN11] Mehdizadeh v. Mincer, 46 Cal. App.
4th 1296, 1305-1306, 54 Cal. Rptr. 2d 284 (2d
(July 24, 1996).
To the same effect, see Harrison v. Welch, 116
Cal. App. 4th 1084, 11 Cal. Rptr. 3d 92 (3d
Dist. 2004); Silacci v. Abramson, 45 Cal. App.
4th 558, 53 Cal. Rptr. 2d 37 (6th Dist. 1996);
Raab v. Casper, 51 Cal. App. 3d 866, 877, 124
Cal. Rptr. 590 (3d Dist. 1975).
[FN12] Otay Water Dist. v. Beckwith, 1 Cal.
App. 4th 1041, 1046-1048, 3 Cal. Rptr. 2d 223
(4th Dist. 1991).
This decision appears inconsistent, but it was
distinguished in Mehdizadeh v. Mincer, 46 Cal.
App. 4th 1296, 1306-1307, 54 Cal. Rptr. 2d
284 (2d Dist. 1996), as modified on denial of
reh'g, (July 24, 1996), as a recognized
exception where the rights acquired are for the
socially important purpose of essential utility
services, citing as examples, City of Los
Angeles v. Igna, 208 Cal. App. 2d 338, 25 Cal.
Rptr. 247 (2d Dist. 1962); Ajax Magnolia One
Corp. v. Southern Cal. Edison Co., 167 Cal.
App. 2d 743, 334 P.2d 1053 (4th Dist. 1959).
Otay was distinguished on the same basis in
Silacci v. Abramson, 45 Cal. App. 4th 558,
564, 53 Cal. Rptr. 2d 37 (6th Dist. 1996),
concluding that it did not apply to disputes
between private parties.
[FN13] Otay Water Dist. v. Beckwith, 1 Cal.
Dist. 1991).
[FN14] Welsher v. Glickman, 272 Cal. App. 2d
134, 137, 77 Cal. Rptr. 141 (2d Dist. 1969).
See Cal. Jur. 3d, Easements and Licenses
37, 39.
[FN15] See 15:32 (burden of proof to
establish prescriptive easements), 16:2
(adverse possession; required facts; burden of
proof).
See the comparison in Berry v. Sbragia, 76 Cal.
1978) (disapproved on other grounds by,
Gilardi v. Hallam, 30 Cal. 3d 317, 178 Cal.
Rptr. 624, 636 P.2d 588 (1981)). Compare
15:33 to 15:37 (use requirements for
prescription), and 16:5 to 16:22 (use
requirements for adverse possession).
[FN16] See 15:39 (prescription; payment of
taxes), 16:23 to 16:25 (adverse possession;
payment of taxes).
[FN17] Sullivan v. Balestrieri, 142 Cal. App.
2d 332, 341, 298 P.2d 688 (1st Dist. 1956).

MILCALRE 15:30
Kenneth Styles

5. Prescription
15:31. Public or private easement by

prescription
West's Key Number Digest, Easements 4 to 11,

41
Public or private easement, or both. When

an easement is used by private individuals and
by the public in general, the use may establish
a private easement, a public easement, or both.
Whether an easement has been created for the
benefit of the general public or merely for
specific private individuals depends on whether
it has been continuously used by the general
public in the required manner, or by only a few
private persons. On the other hand, even
though an easement has been used by the
general public, a private individual can still
acquire a private prescriptive right if the
individual's use, by itself, was sufficient for the
creation of a prescriptive easement.[FN1]
The public can acquire an easement by
prescription. When property has been used
adversely and openly by the public, an
easement can be created by prescription in
favor of the public for future public use.[FN2]
Case Example: The city constructed a public
street on private property over the objections of
the landowner. After more than five years had
elapsed, the property owner brought an action
in inverse condemnation seeking compensation
for the loss of his property. The court held that
his action was barred by the applicable period
of limitations[FN3] and concluded, in effect,
that the public can acquire title by
prescription.[FN4]
Avigation easement. Overflights from an
airport that create noise, dust, vibrations,
fumes, and inconvenience are an interference
with the rights of the landowners adversely
affected. Overflights that sufficiently interfere
with the use and enjoyment of the adjoining
properties such that there is a diminution in the
market value of the property constitute a
nuisance and may be a "taking" of the property
by the government. However, when the
interference is sufficient enough to give the
landowner the right to enjoin its use, or recover
damages resulting from the use, the
prescriptive period commences, and after the
expiration of the prescriptive period the airport
acquires an avigation easement by prescription.
Upon acquisition of the easement, the
landowner no longer owns the property interest
and is precluded from any recovery based on
either nuisance or inverse condemnation.[FN5]
Except for land lying within 1,000 yards of the
mean high-tide line of the Pacific Ocean, or
between such line and a public road, if less
than 1,000 yards, the public cannot acquire any
rights in private property by prescription unless
public funds are being used to improve and
maintain the property and the owner does not
object.[FN6] Furthermore, with respect to the
land excepted as described above, the public
cannot acquire an interest therein, if the owner
posts a sign and renews the same, or publishes
a notice as prescribed by law, or records a
notice pursuant to law, or enters into an
agreement with a governmental agency.[FN7]
Case Example: In order to encourage private
owners of land to permit entry for recreational
purposes by the public, Civ. Code, 1009
limits the ability to obtain a prescriptive
easement for public recreational use of private
land. An individual plaintiff, together with
other members of the public, had used a
network of trails across defendant's land for
recreational use since 1973. Plaintiff had
constructed some of the trails on the private
property. The court found, however, that the
uses made of the property by the plaintiff were
no different from those of the public generally.
The law barred the creation of any prescriptive
easement by use of land by the public for
recreational use, and the plaintiff had not
demonstrated sufficient facts to differentiate
his individual use from the public uses which
could give rise to an easement across
defendant's property. If a private individual
could establish a private easement in this
manner, the purpose of the statute would be
eviscerated.[FN8]
Compare public prescriptive easements and
implied dedication. There are few decisions
that have considered the public's acquisition of
an easement by prescription because in those
cases where there has been continuous use of
private property by the public, the issue has
been whether such usage was sufficient to
accomplish a common law dedication of an
easement. There is a close relationship between
the public acquisition of a prescriptive
easement and the creation of an easement in
favor of the public by a common law
dedication.[FN9]
In certain circumstances, the continuous public
use of private property by the general public is
sufficient to establish an implied dedication of
the easement in favor of the public.[FN10] The
public's use of the property must be sufficient
to prove an implied offer of dedication by the
owner of the servient tenement and an
acceptance of the offer by the public.[FN11]
The primary difference between an implied
dedication and the creation of an easement by
prescription, other than the nature of the use, is
that in some circumstances there can be an
implied dedication even though the public's use
has continued for less than five years.[FN12]
[FN1] O'Banion v. Borba, 32 Cal. 2d 145, 151,

195 P.2d 10 (1948); Applegate v. Ota, 146 Cal.
1983).
See 15:38 (prescriptive period).
[FN2] O'Banion v. Borba, 32 Cal. 2d 145, 151-
153, 195 P.2d 10 (1948); Hare v. Craig, 206
Cal. 753, 755, 276 P. 336 (1929); Morse v.
Miller, 128 Cal. App. 2d 237, 244, 275 P.2d
545 (3d Dist. 1954); Gray v. Magee, 108 Cal.
App. 570, 579-583, 292 P. 157 (4th Dist.
1930). See Atchison, T. & S. F. Ry. Co. v.
Abar, 275 Cal. App. 2d 456, 464, 79 Cal. Rptr.
807 (1st Dist. 1969).
See 26:4 to 26:17 (common law dedication;
offer of dedication).
[FN3] Code Civ. Proc., 318 to 321.
[FN4] Ocean Shore R. Co. v. City of Santa
Cruz, 198 Cal. App. 2d 267, 270-272, 17 Cal.
Rptr. 892 (1st Dist. 1961).
[FN5] Baker v. Burbank-Glendale-Pasadena
1609, 270 Cal. Rptr. 337 (2d Dist. 1990),
opinion modified, (June 18, 1990); Institoris v.
City of Los Angeles, 210 Cal. App. 3d 10, 258
Cal. Rptr. 418 (2d Dist. 1989).
See 17:28 (airspace), 30:11 (inverse
condemnation; interference by low-flying
aircraft), 30:12 (inverse condemnation;
nuisance by a public entity), 22:4 to 22:12
(conduct constituting a nuisance), 22:38
(lapse of time for injunction; private
nuisances), 22:39 (nuisance; period of
limitations).
[FN7] Civ. Code, 1009, in conjunction with
Civ. Code, 1008 and Civ. Code, 813.
[FN8] Bustillos v. Murphy, 96 Cal. App. 4th
1277, 117 Cal. Rptr. 2d 895 (4th Dist. 2002).
See 26:11.
[FN9] See 15:43 (creation of easements by
dedication), 26:15 (adverse possession and
prescription compared).
[FN10] See 26:10 (offer implied from public
use), 26:15 (adverse possession and
prescription compared).
[FN11] In 1972, the Legislature amended Civ.
Code, 813 to make recording of a notice of
consent to public use conclusive evidence
(rather than merely evidence) that subsequent
use of the land is permissive, thereby negating
a finding of implied dedication. At the same
time, Civ. Code, 1009 was enacted, stating in
part that regardless of whether or not a notice
of consent is recorded pursuant to Civ. Code
813, or signs giving permission to pass are
posted pursuant to Civ. Code, 1008, "no use
of [private] property by the public after the
effective date of this section shall ever ripen to
confer upon the public or any governmental
body a vested right to continue to make such
use permanently, in the absence of an express
written irrevocable offer of dedication of such
property " (Civ. Code, 1009, subd. (b)).
These enactments abrogated the holding of
Gion v. City of Santa Cruz, 2 Cal. 3d 29, 84
Cal. Rptr. 162, 465 P.2d 50 (1970). See Friends
of the Trails v. Blasius, 78 Cal. App. 4th 810,
820-825, 93 Cal. Rptr. 2d 193 (3d Dist. 2000)
(where public use is compatible with existing
public utilitys use, underlying owner may be
subject to implied dedication); 26:4 to 26:21
(common law dedication; offer, revocation and
acceptance).
[FN12] See 26:14 (dedication; period of use).

MILCALRE 15:31
Kenneth Styles

5. Prescription
15:32. Burden of proof to establish a

prescriptive easement
Question of fact. Each of the elements

necessary to create an easement by
prescription, whether the use of the
property is adverse or permissive, whether
the owner of the servient tenement has
notice of the adversity and the user's claim
of right, and whether the use has been
continuous for the required period of time,
are questions of fact.[FN1] The person
claiming the existence of a prescriptive
easement is entitled to a jury trial on the
issues of whether he or she has proved the
essential elements to create the easement
even though the parties seek equitable
relief by injunction or quiet title.[FN2]
The existence or nonexistence of a
prescriptive easement is determined by the
trier of fact after an examination of all of
the surrounding circumstances, including
the relation of the parties,[FN3] their
conduct, the relative location of the
properties, and other factors.[FN4]
On appeal, the court will apply a
substantial evidence standard of review
i.e., if there is substantial evidence to
support the trial courts decision, it is "not
open to review on appeal."[FN5]
User has burden of proof. Title is
presumed to be as disclosed by the public
records,[FN6] and it is presumed that
possession of the property is deemed to
have been under and in subordination to
the legal title.[FN7] The user who claims
the prescriptive easement has the burden of
proving each of the elements necessary to
establish that the easement has been
created by prescription.[FN8]
Evidence different from adverse
possession. As a general rule, the
evidentiary burden of proving the
acquisition of title by adverse possession is
materially different and more onerous than
that required to establish a prescriptive
easement.[FN9] Thus, for example, the
evidence required to establish title by
adverse possession may depend on
whether the area claimed was substantially
enclosed, cultivated, or improved,[FN10]
but the burden of proving a prescriptive
easement is the same whether or not the
area claimed is enclosed or cultivated by
the claimant.[FN11]
However, stronger evidence may be
required to establish a prescriptive right to
unenclosed rural land than is required to
establish a prescriptive right to urban
land,[FN12] even though the use of an
established path or route must be shown in
either case[FN13] and the fact that a fence
separates the area claimed is persuasive
evidence in favor of the easement's
creation.[FN14]
Evidence to prove prescription. The
testimony by the user may be sufficient by
itself to establish a prima facie case for the
creation of the prescriptive
easement.[FN15] In addition, the trier of
fact can examine various extraneous
factors in determining whether the user has
satisfied the required elements to prove the
prescriptive rights.
The mere fact that the user did not request
permission may be sufficient to prove that
the use was under a claim of right.[FN16]
The sharing of expenses for repair and
maintenance by the user and the property
owner can be construed as a tacit
admission that the user has a vested right
to the easement.[FN17]
The servient owner's request to the
prescriptive claimant for permission to
improve the easement can be an implied
recognition of its validity.[FN18]
An attempt by the user to purchase the
easement is evidence that he or she
believes that the use is permissive and
subordinate to the rights of the owner of
the burdened property.[FN19]
Case Example: The parties had several
negotiations where the user attempted to
purchase the easement. The court found
that the several attempted negotiations for
purchase were merely one fact to be
considered and whether the use was hostile
or a matter of neighborly accommodation
was a question of fact for the trial court, to
be determined in light of the surrounding
circumstances and the relationship
between the parties. In fact, because there
was no evidence of express permission, the
court commented that the "adamant refusal
to negotiate on the issue is evidence that
no permission was given or
contemplated."[FN20]
Hostile use creates an inference or
presumption. The decisions are not
consistent as to whether evidence of the
open, visible, and notorious use of the
property establishes an inference that the
use was adverse and hostile or whether
such evidence creates a presumption of
adversity and notice to the owner of the
servient tenement.[FN21]
One line of decisions holds that such
evidence merely creates an
inference.[FN22]
"The preferable view is to treat the case
the same as any other, that is, the issue is
ordinarily one of fact, giving consideration
to all the circumstances and the inferences
that may be drawn therefrom . . . . There
seems to be no apparent reason for
discussing the matter from the standpoint
of presumption. For the trial court the
question is whether the circumstances
proven do or do not justify an inference
showing the required elements. In the
appellate court the issue is merely whether
there is sufficient evidence to support the
judgment of the trial court."[FN23]
Another line of more recent decisions
concludes that the "use of an easement
over a long period of time without the
landowner's interference is presumptive
evidence of existence of an
easement."[FN24] When a presumption
arises, the claimant satisfies his or her
burden of proof and the burden shifts to
the owner of the servient tenement to
establish that the use was with permission
that had been communicated to the
user.[FN25]
Cases:
Hostile use creates an inference or
presumption. In Grant v. Ratliff, 164 Cal.
App. 4th 1304, 79 Cal. Rptr. 3d 902 (2d
Dist. 2008), the plaintiffs sought to create
a prescriptive easement over the
defendant's property. Both parcels were
initially owned by a couple, but were
divided as part of divorce proceedings and
later conveyed to plaintiffs and defendants.
The court disagreed with plaintiffs'
argument that the prior use by the couple's
son of one property was sufficiently
adverse to the other property. The court
held that the son's use was an
accommodation of a family member as
opposed to a claim of right. Plaintiffs
argued that evidence of "open, notorious
and continuous use" created a
presumption, shifting the burden to the
owner to prove that the use was
permissive, citing to Warsaw v. Chicago
Metallic Ceilings, Inc., 35 Cal. 3d 564, 199
Cal. Rptr. 773, 676 P.2d 584 (1984). The
court disagreed, and held that the analysis
of O'Banion v. Borba, 32 Cal. 2d 145, 195
P.2d 10 (1948), appliedi.e., evidence of
prescriptive use creates only an inference,
not an evidentiary presumption.
[END OF SUPPLEMENT]
[FN1] Warsaw v. Chicago Metallic
Ceilings, Inc., 35 Cal. 3d 564, 571, 199
Cal. Rptr. 773, 676 P.2d 584 (1984);
Taormino v. Denny, 1 Cal. 3d 679, 687, 83
Cal. Rptr. 359, 463 P.2d 711 (1970);
O'Banion v. Borba, 32 Cal. 2d 145, 149,
195 P.2d 10 (1948); Hutton v. Ormando, 3
Cal. 2d 305, 307, 43 P.2d 1100 (1935);
Abbott v. Pond, 142 Cal. 393, 399, 76 P.
60 (1904); Field-Escandon v. Demann,
204 Cal. App. 3d 228, 235, 251 Cal. Rptr.
49 (2d Dist. 1988), opinion modified,
(Sept. 27, 1988) and opinion modified,
(Sept. 29, 1988); Mesnick v. Caton, 183
Cal. App. 3d 1248, 1260, 228 Cal. Rptr.
779 (2d Dist. 1986); Bennett v. Lew, 151
Cal. App. 3d 1177, 1183, 199 Cal. Rptr.
241 (2d Dist. 1984); Applegate v. Ota, 146
Cal. App. 3d 702, 709, 194 Cal. Rptr. 331
(2d Dist. 1983); Twin Peaks Land Co. v.
Briggs, 130 Cal. App. 3d 587, 593, 181
Cal. Rptr. 25 (1st Dist. 1982); Berry v.
Sbragia, 76 Cal. App. 3d 876, 880, 143
Cal. Rptr. 318 (1st Dist. 1978)
(disapproved on other grounds by, Gilardi
v. Hallam, 30 Cal. 3d 317, 178 Cal. Rptr.
624, 636 P.2d 588 (1981)); Jordan v.
Worthen, 68 Cal. App. 3d 310, 327, 137
Cal. Rptr. 282 (1st Dist. 1977) (hearsay
evidence of general reputation in the
community is not admissible when private
rights are involved).
See also 16:1 ("adverse possession"
defined; title acquired).
[FN2] Arciero Ranches v. Meza, 17 Cal.
App. 4th 114, 125-126, 21 Cal. Rptr. 2d
127 (5th Dist. 1993), as modified, (July 19,
1993); Frahm v. Briggs, 12 Cal. App. 3d
441, 445, 90 Cal. Rptr. 725 (2d Dist.
1970).
[FN3] See 15:37 (effect of relationship
between the parties).
[FN4] Conaway v. Toogood, 172 Cal. 706,
709, 158 P. 200 (1916); Kripp v. Curtis, 71
Cal. 62, 66, 11 P. 879 (1886); Lynch v.
Glass, 44 Cal. App. 3d 943, 950, 119 Cal.
Rptr. 139 (1st Dist. 1975); Zimmer v.
Dykstra, 39 Cal. App. 3d 422, 431, 114
Cal. Rptr. 380 (2d Dist. 1974); Kerr Land
& Timber Co. v. Emmerson, 268 Cal. App.
2d 628, 636, 74 Cal. Rptr. 307 (1st Dist.
1969); Hill v. Allan, 259 Cal. App. 2d 470,
484-487, 66 Cal. Rptr. 676 (1st Dist.
1968); Gaut v. Farmer, 215 Cal. App. 2d
278, 283, 30 Cal. Rptr. 94 (4th Dist. 1963);
Case v. Uridge, 180 Cal. App. 2d 1, 5, 4
Cal. Rptr. 85 (4th Dist. 1960); Harrison v.
Bouris, 139 Cal. App. 2d 170, 175, 293
P.2d 98 (4th Dist. 1956); Heenan v.
Bevans, 51 Cal. App. 277, 283-287, 196 P.
802 (3d Dist. 1921).
In Moots v. Kasten, 90 Cal. App. 2d 734,
737, 203 P.2d 537 (2d Dist. 1949), use of a
driveway on a boundary line was
insufficiently proved by testimony that,
although no one ever saw a car being
driven on the neighboring property,
because of the width of the automobile it
necessarily must have encroached over the
boundary line.
702, 708, 194 Cal. Rptr. 331 (2d Dist.
1983).
[FN6] Code Civ. Proc., 321; Clarke v.
Clarke, 133 Cal. 667, 670, 66 P. 10 (1901);
Mosk v. Summerland Spiritualist Ass'n,
225 Cal. App. 2d 376, 381, 37 Cal. Rptr.
366 (2d Dist. 1964); Pacific Gas & Elec.
Co. v. Crockett Land & Cattle Co., 70 Cal.
App. 283, 289, 233 P. 370 (1st Dist. 1924);
Heenan v. Bevans, 51 Cal. App. 277, 286,
196 P. 802 (3d Dist. 1921).
[FN7] Code Civ. Proc., 321.
[FN8] Code Civ. Proc., 321. O'Banion v.
Borba, 32 Cal. 2d 145, 149, 195 P.2d 10
(1948); Barlow v. Frink, 171 Cal. 165,
170, 152 P. 290 (1915); Clarke v. Clarke,
133 Cal. 667, 669, 66 P. 10 (1901);
Mesnick v. Caton, 183 Cal. App. 3d 1248,
1260, 228 Cal. Rptr. 779 (2d Dist. 1986);
Connolly v. McDermott, 162 Cal. App. 3d
973, 976, 208 Cal. Rptr. 796 (3d Dist.
1984); Bennett v. Lew, 151 Cal. App. 3d
1177, 1183, 199 Cal. Rptr. 241 (2d Dist.
1984); Twin Peaks Land Co. v. Briggs,
130 Cal. App. 3d 587, 593, 181 Cal. Rptr.
25 (1st Dist. 1982); Berry v. Sbragia, 76
Cal. App. 3d 876, 880, 143 Cal. Rptr. 318
(1st Dist. 1978) (disapproved on other
grounds by, Gilardi v. Hallam, 30 Cal. 3d
317, 178 Cal. Rptr. 624, 636 P.2d 588
(1981)); Jordan v. Worthen, 68 Cal. App.
3d 310, 319, 137 Cal. Rptr. 282 (1st Dist.
1977); Lynch v. Glass, 44 Cal. App. 3d
943, 950, 119 Cal. Rptr. 139 (1st Dist.
1975); Zimmer v. Dykstra, 39 Cal. App.
3d 422, 431, 114 Cal. Rptr. 380 (2d Dist.
1974); Kerr Land & Timber Co. v.
Emmerson, 268 Cal. App. 2d 628, 637, 74
Cal. Rptr. 307 (1st Dist. 1969); Guerra v.
Packard, 236 Cal. App. 2d 272, 288, 46
Cal. Rptr. 25 (1st Dist. 1965); Gaut v.
Farmer, 215 Cal. App. 2d 278, 283, 30
Cal. Rptr. 94 (4th Dist. 1963); Case v.
Uridge, 180 Cal. App. 2d 1, 5, 4 Cal. Rptr.
85 (4th Dist. 1960); Castillo v. Celaya, 155
Cal. App. 2d 469, 472, 318 P.2d 113 (4th
Dist. 1957).
[FN9] Cleary v. Trimble, 229 Cal. App. 2d
1, 6, 39 Cal. Rptr. 776 (3d Dist. 1964).
See 16:2 (adverse possession; evidence
required; burden of proof).
See also Adoption as period of prescription
for easement the period prescribed by
statute of limitations with reference to
adverse possession as including condition
of color of title or right or other conditions
imposed by that statute, 112 A.L.R. 545.
[FN10] See 16:5 to 16:12 (actual, open,
and notorious possession).
[FN11] Code Civ. Proc., 325, requiring
enclosure, cultivation, or improvement of
the area claimed, does not apply to the
creation of a prescriptive easement. Cleary
v. Trimble, 229 Cal. App. 2d 1, 8, 39 Cal.
Rptr. 776 (3d Dist. 1964).
See also Frederick v. Dickey, 91 Cal. 358,
360, 27 P. 742 (1891); LeDeit v. Ehlert,
205 Cal. App. 2d 154, 160-163, 22 Cal.
Rptr. 747 (1st Dist. 1962).
[FN12] O'Banion v. Borba, 32 Cal. 2d 145,
149, 195 P.2d 10 (1948); Case v. Uridge,
180 Cal. App. 2d 1, 4 Cal. Rptr. 85 (4th
Dist. 1960).
See Acquisition by user or prescription of
right of way over uninclosed land, 46
A.L.R.2d 1140.
See 15:34 (visible, open, and notorious).
[FN13] Schudel v. Hertz, 125 Cal. App.
564, 568-571, 13 P.2d 1008 (1st Dist.
1932).
[FN14] Cleary v. Trimble, 229 Cal. App.
2d 1, 10, 39 Cal. Rptr. 776 (3d Dist. 1964).
[FN15] Applegate v. Ota, 146 Cal. App.
3d 702, 710, 194 Cal. Rptr. 331 (2d Dist.
1983); Miller v. Johnston, 270 Cal. App.
2d 289, 294, 75 Cal. Rptr. 699 (1st Dist.
1969); Gaut v. Farmer, 215 Cal. App. 2d
278, 283, 30 Cal. Rptr. 94 (4th Dist. 1963);
Lindsay v. King, 138 Cal. App. 2d 333,
344, 292 P.2d 23 (1st Dist. 1956); Heenan
v. Bevans, 51 Cal. App. 277, 286, 196 P.
802 (3d Dist. 1921).
See also 15:40 (enforcement by
claimant).
152, 195 P.2d 10 (1948); Twin Peaks Land
Co. v. Briggs, 130 Cal. App. 3d 587, 594,
181 Cal. Rptr. 25 (1st Dist. 1982); Cleary
v. Trimble, 229 Cal. App. 2d 1, 8-10, 39
Cal. Rptr. 776 (3d Dist. 1964); Lord v.
Sanchez, 136 Cal. App. 2d 704, 707, 289
P.2d 41 (1st Dist. 1955).
See 15:36 (permission by the property
owner; posted or recorded notice).
[FN17] Serrano v. Grissom, 213 Cal. App.
2d 300, 302, 28 Cal. Rptr. 579 (5th Dist.
1963); Marangi v. Domenici, 161 Cal.
App. 2d 552, 554, 326 P.2d 527 (2d Dist.
1958).
[FN18] People v. Sayig, 101 Cal. App. 2d
890, 895, 226 P.2d 702 (1st Dist. 1951).
[FN19] Clark v. Redlich, 147 Cal. App. 2d
500, 504, 305 P.2d 239 (4th Dist. 1957);
Heenan v. Bevans, 51 Cal. App. 277, 286-
288, 196 P. 802 (3d Dist. 1921).
Cal. Rptr. 773, 676 P.2d 584 (1984).
[FN21] One older decision held that such
evidence did not prove adversity and
hostility and that the user still had the
burden of presenting evidence on that
issue, without the assistance of either an
inference or a presumption. Clarke v.
Clarke, 133 Cal. 667, 669-671, 66 P. 10
(1901).
[FN22] Code Civ. Proc., 322, 324;
O'Banion v. Borba, 32 Cal. 2d 145, 149,
195 P.2d 10 (1948); Taylor v. Avila, 175
Cal. 203, 206, 165 P. 533 (1917);
Conaway v. Toogood, 172 Cal. 706, 709,
158 P. 200 (1916); Guerra v. Packard, 236
Cal. App. 2d 272, 286, 46 Cal. Rptr. 25
(1st Dist. 1965); Kerr Land & Timber Co.
v. Emmerson, 268 Cal. App. 2d 628, 637,
74 Cal. Rptr. 307 (1st Dist. 1969); Cleary
v. Trimble, 229 Cal. App. 2d 1, 8-10, 39
Cal. Rptr. 776 (3d Dist. 1964); Ross v.
Lawrence, 219 Cal. App. 2d 229, 232, 33
Cal. Rptr. 135 (4th Dist. 1963); Gaut v.
Farmer, 215 Cal. App. 2d 278, 283, 30
Cal. Rptr. 94 (4th Dist. 1963); McCarty v.
Walton, 212 Cal. App. 2d 39, 45, 27 Cal.
Rptr. 792 (3d Dist. 1963); LeDeit v.
Ehlert, 205 Cal. App. 2d 154, 160, 22 Cal.
Rptr. 747 (1st Dist. 1962); Fobbs v. Smith,
202 Cal. App. 2d 209, 213, 20 Cal. Rptr.
545 (2d Dist. 1962); Jones v. Harmon, 175
Cal. App. 2d 869, 875-879, 1 Cal. Rptr.
192 (2d Dist. 1959); Castillo v. Celaya,
155 Cal. App. 2d 469, 472-474, 318 P.2d
113 (4th Dist. 1957); Finley v. Botto, 161
Cal. App. 2d 614, 619, 327 P.2d 55 (3d
Dist. 1958); Marangi v. Domenici, 161
Cal. App. 2d 552, 557, 326 P.2d 527 (2d
Dist. 1958); Mathews v. Brinton, 132 Cal.
App. 2d 433, 438, 282 P.2d 93 (4th Dist.
1955); Van Amersfoort v. Young, 105 Cal.
App. 2d 22, 25, 232 P.2d 569 (4th Dist.
1951); Adams v. Smith's Estate, 88 Cal.
App. 2d 910, 912, 199 P.2d 730 (2d Dist.
1948); Redemeyer v. Carroll, 21 Cal. App.
2d 217, 219, 68 P.2d 739 (3d Dist. 1937).
149, 195 P.2d 10 (1948).
Cal. Rptr. 773, 676 P.2d 584 (1984);
Fleming v. Howard, 150 Cal. 28, 30, 87 P.
908 (1906); Field-Escandon v. Demann,
204 Cal. App. 3d 228, 235, 251 Cal. Rptr.
(Sept. 29, 1988); Applegate v. Ota, 146
Cal. App. 3d 702, 709, 194 Cal. Rptr. 331
(2d Dist. 1983); Twin Peaks Land Co. v.
Briggs, 130 Cal. App. 3d 587, 593, 181
Cal. Rptr. 25 (1st Dist. 1982); MacDonald
Properties, Inc. v. Bel-Air Country Club,
72 Cal. App. 3d 693, 701, 140 Cal. Rptr.
367 (2d Dist. 1977); Miller v. Johnston,
270 Cal. App. 2d 289, 294, 75 Cal. Rptr.
699 (1st Dist. 1969); LeDeit v. Ehlert, 205
Cal. App. 2d 154, 160, 22 Cal. Rptr. 747
(1st Dist. 1962).
3d 702, 709, 194 Cal. Rptr. 331 (2d Dist.
1983); Twin Peaks Land Co. v. Briggs,
130 Cal. App. 3d 587, 594, 181 Cal. Rptr.
25 (1st Dist. 1982); MacDonald Properties,
Inc. v. Bel-Air Country Club, 72 Cal. App.
3d 693, 701, 140 Cal. Rptr. 367 (2d Dist.
1977); Morse v. Miller, 128 Cal. App. 2d
237, 249, 275 P.2d 545 (3d Dist. 1954);
Woo v. Martz, 110 Cal. App. 2d 559, 562,
243 P.2d 131 (2d Dist. 1952); Van
Amersfoort v. Young, 105 Cal. App. 2d
22, 26, 232 P.2d 569 (4th Dist. 1951);
Adams v. Smith's Estate, 88 Cal. App. 2d
910, 912, 199 P.2d 730 (2d Dist. 1948);
Smith v. Skrbek, 71 Cal. App. 2d 351,
358, 162 P.2d 674 (3d Dist. 1945);
Chapman v. Sky L'Onda Mut. Water Co.,
69 Cal. App. 2d 667, 678, 159 P.2d 988
(1st Dist. 1945).

MILCALRE 15:32
Kenneth Styles

5. Prescription
15:33. Use requirementsContinuous and

exclusive
Requirement of continuous use. To acquire a

prescriptive easement, the easement must be
used in the required manner continuously and
without interruption for the full prescriptive
period.[FN1] The actual use required depends
on the nature of the easement. It need not be
used every day during the prescribed period.
The use is sufficient if it occurs on those
occasions when it is necessary for the
convenience of the user.[FN2]
"If a right of way over another's land has been
used for more than five years, it is not
necessary, to make good such use, that the
claimant has used it every day. He uses it every
day, or once in every week, or twice a month,
as his needs require. He is not required to go
over it when he does not need it to make his
use of the way continuous. If, whenever the
claimant needs it from time to time, he makes
use of it, this is a continuous use. An omission
to use it when not needed does not disprove a
continuity of use, shown by using it when
needed. Neither such intermission nor omission
breaks the continuity."[FN3]
A prescriptive easement to use an irrigation
ditch can be acquired even though water is
carried through it only during the cropping
season when it is necessary for irrigation.[FN4]
A prescriptive right to use a drainpipe may be
acquired even though it is not used in the dry
season when there are no drain waters.[FN5]
An easement to discharge surface waters onto
adjacent property other than by natural flow
can be acquired even though the discharge only
occurs during portions of the year.[FN6]
The use of a roadway is sufficient if it is used
only three times a week,[FN7] once each
week,[FN8] 20 times a year,[FN9]
sporadically, or occasionally as needed.[FN10]
If the dominant tenement is rented, the
continuity of use is sufficient even though the
easement is not used during occasional periods
when the dominant tenement is vacant.[FN11]
Proof of some use sufficient. A claimant need
not present evidence of each use of the
easement. In the absence of facts to the
contrary, testimony of use at different times
throughout the prescriptive period is sufficient
to establish the regularity and continuity of use
during the interim period.[FN12]
Effect of death, disability, or imprisonment.
The death of the property owner, or the
inheritance of the property by the heirs and
devisees of the owner, does not interrupt the
continuity of possession of the prescriptive
user.[FN13]
The disability of the property owner does
interrupt the continuity and is not counted
when calculating the prescriptive
period.[FN14]
The imprisonment of the property owner also is
not counted for calculating the prescriptive
period, for a maximum of two years.[FN15]
Interruption by an action filed by the
servient tenement owner. The servient
tenement owner can interrupt the continuity of
the prescriptive period either by filing an action
that raises the issue of the propriety of the
use[FN16] or by physically interfering with the
use. An action that is filed but is dismissed or
abandoned does not interrupt the continuity of
the use.[FN17]
Physical interruption is required. The
interference with the use of the easement by
the owner of the servient tenement must cause
a physical interruption of the use.[FN18] Mere
oral objections are not sufficient.[FN19]
A physical interruption of the easement's use
with the mutual consent of both the user and
the owner of the servient tenement,[FN20] or
for purposes of repairing the easement,[FN21]
does not stop the running of the prescriptive
period.
When use of the easement is prevented by an
act of God, such as a fire or flood, the use is
still continuous if the use is reinstituted when it
is reasonably possible.[FN22]
Effect of a gate on a right of way. Whether
the erection of a gate across the easement
causes a sufficient interruption of the use is a
question of fact in each case. A gate does not
cause a sufficient interruption of the continuity
of use if it is unlocked and does not physically
prevent the use of the easement or if it is
locked but the user has a key.[FN23]
Interruption after expiration of prescriptive
period. The interruption of the use after the
prescriptive period has elapsed does not affect
the easement rights that have been acquired
and become "vested" on the particular use for
the required period,[FN24] and, after the
prescriptive right has been acquired, the owner
of the easement can require the owner of the
servient tenement to remove any obstruction
that has been placed on the easement.[FN25]
Exclusive use not required. Unlike the
requirement for adverse possession,[FN26]
exclusiveness of use is not necessary to
establish an easement by prescription.[FN27]
A use may be exclusive in the required sense
even though there is similar use by the owner
of the servient tenement, by other neighbors, or
by the public in general.[FN28]
Exclusiveness, as used in reference to
prescriptive easements, means that the right to
the enjoyment of the use does not depend on a
similar right in others. The use must be
exclusive as against the community or public at
large.[FN29]
[FN1] See 15:38 (prescriptive period).

[FN2] Scott v. Henry, 196 Cal. 666, 670, 239
P. 314 (1925); Northern California Power Co.,
Consolidated, v. Flood, 186 Cal. 301, 306, 199
P. 315 (1921); Clarke v. Clarke, 133 Cal. 667,
669, 66 P. 10 (1901); Fogerty v. State of
California, 187 Cal. App. 3d 224, 238, 231 Cal.
Rptr. 810 (3d Dist. 1986) (citing text); Twin
Peaks Land Co. v. Briggs, 130 Cal. App. 3d
587, 593, 181 Cal. Rptr. 25 (1st Dist. 1982)
(easement used primarily during hunting
season); Zimmer v. Dykstra, 39 Cal. App. 3d
422, 432, 114 Cal. Rptr. 380 (2d Dist. 1974);
Dist. 1965); Ross v. Lawrence, 219 Cal. App.
2d 229, 233, 33 Cal. Rptr. 135 (4th Dist. 1963);
Fobbs v. Smith, 202 Cal. App. 2d 209, 213, 20
Cal. Rptr. 545 (2d Dist. 1962); Medina v.
Brown, 172 Cal. App. 2d 208, 211, 342 P.2d
353 (3d Dist. 1959); Murray v. Fuller, 82 Cal.
App. 2d 400, 407, 186 P.2d 157 (2d Dist.
1947); Wallace v. Whitmore, 47 Cal. App. 2d
369, 372, 117 P.2d 926 (3d Dist. 1941).
[FN3] Hesperia Land & Water Co. v. Rogers,
83 Cal. 10, 11, 23 P. 196 (1890), recited in
Myers v. Berven, 166 Cal. 484, 490, 137 P.
260 (1913).
P. 314 (1925); Hesperia Land & Water Co. v.
Rogers, 83 Cal. 10, 11, 23 P. 196 (1890);
Witherill v. Brehm, 74 Cal. App. 286, 293, 240
P. 529 (3d Dist. 1925); Silva v. Hawn, 10 Cal.
App. 544, 551, 102 P. 952 (3d Dist. 1909).
See also Lakeside Ditch Co. v. Crane, 80 Cal.
181, 183, 22 P. 76 (1889) (use of water when
available).
See also Adverse possession: sufficiency, as
regards continuity, of seasonal possession other
than for agricultural or logging purposes, 24
A.L.R.2d 632.
[FN5] Reinsch v. City of Los Angeles, 243
Dist. 1966).
[FN6] Hails v. Martz, 28 Cal. 2d 775, 778, 172
P.2d 52 (1946) (rural land); Abbott v. Pond,
142 Cal. 393, 396-398, 76 P. 60 (1904) (rural
land); Hahn v. Curtis, 73 Cal. App. 2d 382,
389, 166 P.2d 611 (3d Dist. 1946) (rural land;
easement not proved); Los Angeles Brick &
Clay Products Co. v. City of Los Angeles, 60
Cal. App. 2d 478, 487, 141 P.2d 46 (2d Dist.
1943) (urban land; easement not proved);
Strehlow v. Mothorn, 100 Cal. App. 692, 697,
280 P. 1021 (1st Dist. 1929) (rural land).
[FN7] Gaut v. Farmer, 215 Cal. App. 2d 278,
284, 30 Cal. Rptr. 94 (4th Dist. 1963).
[FN8] Crimmins v. Gould, 149 Cal. App. 2d
383, 387, 308 P.2d 786 (1st Dist. 1957).
[FN9] Weideman v. Staheli, 88 Cal. App. 2d
613, 616, 199 P.2d 351 (4th Dist. 1948).
See also Harrison v. Bouris, 139 Cal. App. 2d
170, 173, 293 P.2d 98 (4th Dist. 1956) (used
"no less than 10 times a year").
[FN10] Warsaw v. Chicago Metallic Ceilings,
Inc., 35 Cal. 3d 564, 570, 199 Cal. Rptr. 773,
676 P.2d 584 (1984) (easement used by
delivery trucks only as often as deliveries were
necessary); Twin Peaks Land Co. v. Briggs,
130 Cal. App. 3d 587, 593, 181 Cal. Rptr. 25
(1st Dist. 1982) (easement used primarily
during hunting season); Weideman v. Staheli,
88 Cal. App. 2d 613, 616, 199 P.2d 351 (4th
Dist. 1948) ("occasional" use); Smith v.
Skrbek, 71 Cal. App. 2d 351, 353, 162 P.2d
674 (3d Dist. 1945); Myran v. Smith, 117 Cal.
App. 355, 360, 4 P.2d 219 (1st Dist. 1931)
(easement used "off and on" when on the
property).
However, in Peck v. Howard, 73 Cal. App. 2d
308, 325-329, 167 P.2d 753 (2d Dist. 1946),
the court concluded that the intermittent use of
property was inadequate to establish a
prescriptive easement.
[FN11] Sufficool v. Duncan, 187 Cal. App. 2d
544, 549, 9 Cal. Rptr. 763 (4th Dist. 1960);
Bernstein v. Dodik, 129 Cal. App. 454, 458, 18
P.2d 983 (1st Dist. 1933).
See also 15:34 (visible, open, and notorious).
[FN12] Cleary v. Trimble, 229 Cal. App. 2d 1,
10, 39 Cal. Rptr. 776 (3d Dist. 1964).
See also 15:40 (enforcement by claimant).
134, 135, 77 Cal. Rptr. 141 (2d Dist. 1969);
Dist. 1969).
[FN17] Yorba v. Anaheim Union Water Co.,
41 Cal. 2d 265, 270, 259 P.2d 2 (1953).
[FN18] Myers v. Berven, 166 Cal. 484, 488,
137 P. 260 (1913); Pollard v. Rebman, 162
Cal. 633, 636, 124 P. 235 (1912); LeDeit v.
Ehlert, 205 Cal. App. 2d 154, 158, 22 Cal.
Rptr. 747 (1st Dist. 1962); Lapique v.
Morrison, 29 Cal. App. 136, 138, 154 P. 881
(2d Dist. 1915).
[FN19] Lord v. Sanchez, 136 Cal. App. 2d 704,
706, 289 P.2d 41 (1st Dist. 1955).
[FN20] In Scott v. Henry, 196 Cal. 666, 671,
239 P. 314 (1925), the owner of the servient
tenement on occasion plowed across a water
ditch when clearing the area of weeds, but
these interruptions were with the consent of the
easement owner, and the servient tenement
owner in each instance restored the ditch to its
former condition.
P. 314 (1925).
[FN22] Fobbs v. Smith, 202 Cal. App. 2d 209,
213-219, 20 Cal. Rptr. 545 (2d Dist. 1962)
(fire); Clark v. Clark, 148 Cal. App. 2d 223,
227, 306 P.2d 556 (3d Dist. 1957) (flood).
[FN23] Crossett v. Souza, 3 Cal. 2d 721, 723,
45 P.2d 970 (1935); De La Guerra v. Striedel,
159 Cal. 85, 87, 112 P. 856 (1910); Guerra v.
Packard, 236 Cal. App. 2d 272, 292, 46 Cal.
Rptr. 25 (1st Dist. 1965); Sufficool v. Duncan,
187 Cal. App. 2d 544, 546, 9 Cal. Rptr. 763
(4th Dist. 1960); Clark v. Clark, 148 Cal. App.
2d 223, 228, 306 P.2d 556 (3d Dist. 1957);
Harrison v. Bouris, 139 Cal. App. 2d 170, 173,
293 P.2d 98 (4th Dist. 1956); Matthiessen v.
Grand, 92 Cal. App. 504, 510, 268 P. 675 (1st
Dist. 1928); Heenan v. Bevans, 51 Cal. App.
277, 283, 196 P. 802 (3d Dist. 1921).
[FN24] Zimmer v. Dykstra, 39 Cal. App. 3d
422, 434-436, 114 Cal. Rptr. 380 (2d Dist.
1974).
See 11:87 (notice of rights acquired by
adverse possession or prescription); 15:40
(enforcement by the claimant).
702, 712, 194 Cal. Rptr. 331 (2d Dist. 1983);
Pacific Gas & Elec. Co. v. Minnette, 115 Cal.
App. 2d 698, 708, 252 P.2d 642 (3d Dist.
1953).
See 15:40 (enforcement by the claimant).
[FN26] See 16:16 (adverse possession;
exclusiveness of use).
[FN27] Thompson v. Dypvik, 174 Cal. App. 3d
329, 338, 220 Cal. Rptr. 46 (6th Dist. 1985).
151, 195 P.2d 10 (1948) (used by the public);
Hare v. Craig, 206 Cal. 753, 756, 276 P. 336
(1929) (used by the public); Abbott v. Pond,
142 Cal. 393, 395, 76 P. 60 (1904) (used by
servient owner and others); Humphreys v.
Blasingame, 104 Cal. 40, 41, 37 P. 804 (1894)
(used by servient owner); Sufficool v. Duncan,
187 Cal. App. 2d 544, 549, 9 Cal. Rptr. 763
(4th Dist. 1960); Applegate v. Ota, 146 Cal.
1983) (roadway also used by the public);
Miller v. Johnston, 270 Cal. App. 2d 289, 294,
75 Cal. Rptr. 699 (1st Dist. 1969); Walner v.
City of Turlock, 230 Cal. App. 2d 399, 410, 41
Cal. Rptr. 29 (5th Dist. 1964) (used by
customers of the servient tenement); Gaither v.
Gaither, 165 Cal. App. 2d 782, 784, 332 P.2d
436 (3d Dist. 1958) (boundary-line road used
by both adjoining owners); Marangi v.
Domenici, 161 Cal. App. 2d 552, 556, 326
P.2d 527 (2d Dist. 1958) (boundary-line road
used by both adjoining owners); Lindsay v.
King, 138 Cal. App. 2d 333, 343, 292 P.2d 23
(1st Dist. 1956) (spring water shared between
user and servient owner); Morse v. Miller, 128
Cal. App. 2d 237, 249, 275 P.2d 545 (3d Dist.
1954) (used by the public); Crawford v.
Lambert, 136 Cal. App. 617, 620, 29 P.2d 428
(4th Dist. 1934) (use of boundary-line road
shared with servient tenement owner); Wells v.
Dias, 57 Cal. App. 670, 672, 207 P. 913 (1st
Dist. 1922) (used by the public); Silva v.
Hawn, 10 Cal. App. 544, 551, 102 P. 952 (3d
Dist. 1909) (use of water ditch shared with
servient tenement owner).
See 15:31 (public or private easement by
prescription).
[FN29] Medina v. Brown, 172 Cal. App. 2d
208, 212, 342 P.2d 353 (3d Dist. 1959);
Crawford v. Lambert, 136 Cal. App. 617, 620,
29 P.2d 428 (4th Dist. 1934).
See 15:31 (public or private easement by
prescription).

MILCALRE 15:33
Kenneth Styles

5. Prescription
15:34. Use requirementsVisible, open,

and notorious
Notorious use. Use of property alone is

insufficient to establish a prescriptive
easement. The use must be sufficiently visible,
open, and notorious so that anyone viewing the
servient tenement would discover the
easement.[FN1] As colorfully stated on several
occasions, the user "must unfurl his flag on the
land, and keep it flying, so that the owner may
see, if he will, that an enemy has invaded his
domains, and planted the standard of
conquest."[FN2]
Use must be sufficient to give notice to the
owner. The law will not permit the loss of
property, or the right to use property, unless the
owner has had an adequate opportunity to
prevent the loss. The reason for the
requirement of visible use is "to insure that the
owner of the real property which is being
encroached upon has actual or constructive
notice of the adverse use and to provide
sufficient time to take necessary action to
prevent that adverse use from ripening into a
prescriptive easement."[FN3]
Therefore, the use of the property must be
sufficiently open, visible, and notorious in a
manner sufficient to impart actual or
constructive notice of the use to the owner of
the dominant tenement.[FN4] If the owner of
the servient tenement does not have actual or
constructive knowledge, the claimant cannot
acquire a prescriptive right.[FN5]
Effect of use that gives notice to the owner.
When the use is insufficient to give notice to
the owner of the property that the user is using
the area of the easement contrary to the intent
of the owner,[FN6] or the owner does not have
a remedy to prevent the use,[FN7] the user
cannot acquire prescriptive rights.
An easement for light and air or lateral or
subjacent support cannot be acquired by
prescription because there is insufficient notice
of the user's claim and the owner has no
remedy to prevent the use.[FN8]
The owner of an open ditch cannot acquire a
prescriptive right of seepage onto the servient
tenement.[FN9]
Adequate use creates an inference of notice.
A property owner may obtain actual
knowledge by being told of the property's use
or by seeing the use. However, the adequate
open, visible, and notorious use of the property
raises an inference that the owner has either
actual or constructive notice of the use.[FN10]
Question of fact. Whether the use has been
sufficiently open, visible, and notorious to
ripen into a prescriptive right is a question of
fact to be determined by the physical evidence,
the nature of the easement, the relationship
between the parties,[FN11] and the
surrounding circumstances.[FN12] The burden
of proving that the use has satisfied these
requirements is on the user.[FN13]
Underground pipe. A prescriptive easement
to use an underground pipe across the servient
tenement may be acquired where the physical
evidence of the pipe's existence would be
adequate to put a reasonably prudent person on
notice.[FN14] Standpipes, a depression in the
ground, or other similar features may be
sufficient to imply that the owner of the
burdened property had notice that the pipe
crossed his or her property.[FN15] However, in
the absence of such evidence, the user cannot
acquire a prescriptive easement for an
underground pipe across the servient
tenement.[FN16]
Use of a path must be consistent. If an
easement is claimed over open, unenclosed
land, the use must be over the same course or
path for the full prescriptive period. A
prescriptive easement cannot be established if
there is a substantial variation from the course
or path used during the prescriptive
period.[FN17] However, slight deviations from
the accustomed route or area will not defeat the
acquisition of the easement,[FN18] but the
amount of evidence required to show the nature
of the use may be greater when the land is not
enclosed.[FN19]
[FN1] See 15:35 (hostile and adverse).

[FN2] Wood v. Davidson, 62 Cal. App. 2d 885,
890, 145 P.2d 659 (1st Dist. 1944); Myran v.
Smith, 117 Cal. App. 355, 362, 4 P.2d 219 (1st
Dist. 1931).
[FN3] Field-Escandon v. Demann, 204 Cal.
1988), opinion modified, (Sept. 27, 1988) and
opinion modified, (Sept. 29, 1988); Twin Peaks
Land Co. v. Briggs, 130 Cal. App. 3d 587, 593,
181 Cal. Rptr. 25 (1st Dist. 1982); Zimmer v.
Dykstra, 39 Cal. App. 3d 422, 431, 114 Cal.
Rptr. 380 (2d Dist. 1974).
[FN4] Connolly v. McDermott, 162 Cal. App.
3d 973, 977, 208 Cal. Rptr. 796 (3d Dist.
1984); Berry v. Sbragia, 76 Cal. App. 3d 876,
880, 143 Cal. Rptr. 318 (1st Dist. 1978)
(disapproved on other grounds by, Gilardi v.
Hallam, 30 Cal. 3d 317, 178 Cal. Rptr. 624,
636 P.2d 588 (1981)).
By definition, therefore, the use cannot be
clandestine. Connolly v. McDermott, 162 Cal.
1984); Costello v. Sharp, 65 Cal. App. 152,
157, 223 P. 567 (3d Dist. 1924).
[FN5] Barlow v. Frink, 171 Cal. 165, 170, 152
P. 290 (1915); Clarke v. Clarke, 133 Cal. 667,
670, 66 P. 10 (1901); Field-Escandon v.
Demann, 204 Cal. App. 3d 228, 236, 251 Cal.
Rptr. 49 (2d Dist. 1988), opinion modified,
(Sept. 27, 1988) and opinion modified, (Sept.
29, 1988); Fogerty v. State of California, 187
Dist. 1986) (the prescriptive rights can only
extend to use that is actual and notorious);
Lynch v. Glass, 44 Cal. App. 3d 943, 950, 119
Cal. Rptr. 139 (1st Dist. 1975); Kerr Land &
Timber Co. v. Emmerson, 268 Cal. App. 2d
628, 634, 74 Cal. Rptr. 307 (1st Dist. 1969);
Castillo v. Celaya, 155 Cal. App. 2d 469, 472,
318 P.2d 113 (4th Dist. 1957); Dooling v.
Dabel, 82 Cal. App. 2d 417, 421, 186 P.2d 183
(3d Dist. 1947); Hahn v. Curtis, 73 Cal. App.
2d 382, 389, 166 P.2d 611 (3d Dist. 1946);
Peck v. Howard, 73 Cal. App. 2d 308, 328, 167
P.2d 753 (2d Dist. 1946); Jones v. Tierney-
Sinclair, 71 Cal. App. 2d 366, 369, 162 P.2d
669 (4th Dist. 1945); Smith v. Skrbek, 71 Cal.
App. 2d 351, 355-358, 162 P.2d 674 (3d Dist.
1945); Nelson v. Robinson, 47 Cal. App. 2d
520, 526, 118 P.2d 350 (3d Dist. 1941).
[FN6] Sullivan v. Zeiner, 98 Cal. 346, 348-
350, 33 P. 209 (1893).
[FN7] Stevens v. Oakdale Irr. Dist., 13 Cal. 2d
343, 350, 90 P.2d 58 (1939); Krieger v. Pacific
Gas & Electric Co., 119 Cal. App. 3d 137, 146,
173 Cal. Rptr. 751 (3d Dist. 1981).
[FN8] Sullivan v. Zeiner, 98 Cal. 346, 348-
350, 33 P. 209 (1893).
See 15:10 (easements for light, air, or view),
17:28 (airspace; solar energy systems).
[FN9] Stevens v. Oakdale Irr. Dist., 13 Cal. 2d
343, 350, 90 P.2d 58 (1939).
[FN10] Hails v. Martz, 28 Cal. 2d 775, 778,
172 P.2d 52 (1946); Conaway v. Toogood, 172
Cal. 706, 710, 158 P. 200 (1916); Applegate v.
Ota, 146 Cal. App. 3d 702, 709, 194 Cal. Rptr.
331 (2d Dist. 1983); Sufficool v. Duncan, 187
Dist. 1960); Lindsay v. King, 138 Cal. App. 2d
333, 336, 292 P.2d 23 (1st Dist. 1956); Hahn v.
Curtis, 73 Cal. App. 2d 382, 389, 166 P.2d 611
(3d Dist. 1946); Jones v. Tierney-Sinclair, 71
1945); Smith v. Skrbek, 71 Cal. App. 2d 351,
358, 162 P.2d 674 (3d Dist. 1945); Chapman v.
Sky L'Onda Mut. Water Co., 69 Cal. App. 2d
667, 678, 159 P.2d 988 (1st Dist. 1945);
McMorris v. Pagano, 63 Cal. App. 2d 446,
450, 146 P.2d 944 (4th Dist. 1944); Wood v.
Davidson, 62 Cal. App. 2d 885, 889, 145 P.2d
659 (1st Dist. 1944).
See Acquisition by user or prescription of right
of way over uninclosed land, 46 A.L.R.2d
1140.
See also 15:32 (burden of proof to establish
establish a prescriptive easement).
[FN14] See, e.g., Reinsch v. City of Los
Angeles, 243 Cal. App. 2d 737, 746, 52 Cal.
Rptr. 613 (2d Dist. 1966).
[FN15] Abbott v. Pond, 142 Cal. 393, 397, 76
P. 60 (1904); Fogarty v. Fogarty, 129 Cal. 46,
49, 61 P. 570 (1900); Jones v. Harmon, 175
Dist. 1959); Lindsay v. King, 138 Cal. App. 2d
333, 342, 292 P.2d 23 (1st Dist. 1956); Knight
v. Cohen, 7 Cal. App. 43, 46, 93 P. 396 (2d
Dist. 1907).
See also Easement by prescription in artificial
drains, pipes, or sewers, 55 A.L.R.2d 1144.
1988), opinion modified, (Sept. 27, 1988) and
opinion modified, (Sept. 29, 1988); Powers v.
Perry, 12 Cal. App. 77, 81-83, 106 P. 595 (1st
Dist. 1909).
In Field-Escandon v. Demann, the court
refused to find notice of the prescriptive use of
a subsurface sewer drain, even though the
servient tenement was below the dominant
tenement and the only access to a public sewer
by gravity would be across the servient
tenement.
easements).
easements).
148, 195 P.2d 10 (1948); LeDeit v. Ehlert, 205
Dist. 1962); Case v. Uridge, 180 Cal. App. 2d
1, 8, 4 Cal. Rptr. 85 (4th Dist. 1960); People v.
Sayig, 101 Cal. App. 2d 890, 897, 226 P.2d
702 (1st Dist. 1951); Schudel v. Hertz, 125
Cal. App. 564, 570, 13 P.2d 1008 (1st Dist.
1932).
See also 15:32 (burden of proof to establish
See Acquisition by user or prescription of right
of way over uninclosed land, 46 A.L.R.2d
1140.
2010 Thomson Chapter 15. Easements
Kenneth Styles

5. Prescription
15:35. Use requirementsHostile,

adverse, and under claim of right
Use must be hostile and adverse. The most

prevalent issue in disputes involving
prescriptive rights is whether the use was
hostile and adverse to the rights of the
owner of the servient tenement and
whether it was under a claim of right or
color of title.[FN1]
Burden of proof. It is assumed that the use
of property is with the permission of, and
in subordination to, the rights of the owner
of the burdened property,[FN2] and the
user has the burden of proving that the use
was hostile and adverse.[FN3]
"Hostile" and "adverse" defined. The use is
"adverse" if it is not in subordination to the
rights of the owner of the servient
tenement, is without permission of the
owner of the servient tenement,[FN4] and
is wrongful and open.[FN5]
To be "hostile," an actual dispute between
the parties is not necessary. It is sufficient
if the use is adverse to the owner of the
servient tenement and is made without
express or implied recognition of his or her
rights.[FN6]
User must have hostile and adverse intent.
A prescriptive easement cannot be
acquired unless the user has a hostile and
adverse intent. A claimed right to use
property without an adverse intent will not
ripen into a prescriptive easement.[FN7]
Intent must be communicated to the
owner. The fact that a user claims a right
to use the property adversely to the rights
of the owner of the servient tenement must
be communicated to the property owner, or
the use of a claimed easement must be so
obviously exercised as to constitute
implied notice of the adverse claim.[FN8]
The owner must have notice that unless
some action is taken to prevent the use it
may ripen into a prescriptive
easement.[FN9] The notice may be actual,
as when the use is seen by the owner of the
servient tenement, or constructive, as when
the use of the property is open and
notorious,[FN10] or imputed, as when the
agent of the owner of the servient
tenement has knowledge of the use.[FN11]
Mere adverse use is sufficient. The
claimant need not inform the servient
tenement owner expressly of his or her
hostile and adverse intent or declare that
the use is under a claim of right. Use of
property in a way that clearly displays the
user's claim of right establishes a prima
facie case that the use is under a claim of
right, that it is adverse and hostile to the
rights of the owner of the property, and
that the owner has constructive notice of
the adverse claim.[FN12] The mere open,
notorious, and visible use of the property
can establish a prima facie case[FN13] and
create an inference or a presumption that
the use is hostile and adverse.[FN14]
Use that commenced with permission.
Although the initial use of the property
may commence under a parol grant[FN15]
or a trespass,[FN16] it may ripen into a
prescriptive easement if it is subsequently
used adversely, under a claim of right, and
with the owner's actual or constructive
knowledge of the adversity of the claim.
Comment: When the user relies on a parol
grant of the easement followed by
rejection of the permission given and
prescriptive use for the required
period,[FN17] there is an issue of fact
whether the servient owner has given a
revocable parol license, defeating a
prescriptive right, or an oral conveyance.
In either instance, the user may be able to
rely on the theory of an irrevocable
license[FN18] or estoppel.[FN19]
Use by mistake. A prescriptive easement
may be acquired by the required use even
though the user is acting under a mistaken
belief that he or she owns the
property[FN20] or had a legal right to use
the easement.[FN21] The burden of proof
is the same whether the use is by mistake
or with a hostile intent.[FN22] The user
need only act without recognition of any
rights of the true owner. The users
testimony of this intent is sufficient to
prove the required adversity.[FN23]
Case Example: The defendant argued that
the requisite element of "under a claim of
right" was not satisfied because the
plaintiff proponent of a prescriptive
easement never claimed that he had a right
to use the property. The court of appeal
affirmed the trial court's holding that the
element "under a claim of right" does not
require a belief or claim that the use is
legally justified. It simply means that the
property was used without permission of
the owner of the land.[FN24]
Case Example: The user received an
express grant of the easement, but the
easement was paved in error outside the
boundaries of the grant. The user was
entitled to establish the prescriptive
easement even though he mistakenly
believed that the paving was located within
the area of the granted easement.[FN25]
Easements on boundary lines. Easements
are often used on a property boundary line
with the belief that the entire right of way
is on the user's property, when in fact it
overlaps onto the property of his or her
neighbor. In such cases, the general rules
of prescription apply, and if the requisite
use has continued for the prescriptive
period the user can acquire prescriptive
rights over his or her neighbor's
property.[FN26]
Prescriptive use of a fence. Prescriptive
easements usually involve the use of land,
but an easement can be created in a party
wall[FN27] or a division fence.[FN28]
However, where a fence is constructed on
the property of another, and it is not a
division fence on the property line, a party
cannot obtain a prescriptive right to
maintain a fence. The mere erection of a
fence does not create an easement to
maintain the fence because a fence is not
"used" and any use is not adverse.[FN29]
Use of rented premises is not hostile and
adverse to the landlord. The possession of
the tenant is the possession of the landlord
so that the tenant's possession is sufficient
to establish a prescriptive title in favor of
the landlord.[FN30] On the other hand, the
fundamental basis for acquisition of
prescriptive rights is that the owner of the
property is aware of the use and has a
remedy to prevent it. A prescriptive title
cannot be acquired by a third party against
the owner of property unless the latter has
a remedy to prevent the prescriptive
use.[FN31] Because the landlord has no
right to prevent the possession of a third
party, the third party cannot acquire a
prescriptive title against the fee title
interest of the landlord.[FN32]
Case Example: Property was leased for use
as a truck stop; a neighbor operated a truck
sales and repair business. Due to the
location of the property lines and
buildings, the only access to the neighbor's
service bays for large trucks was across a
portion of the property leased to the tenant.
For more than 20 years, patrons of both the
tenant and the neighbor used this same
access without objection from either the
owner or the tenant. A dispute arose
between the neighbor and the tenant when
the tenant proposed construction of
improvements on the leased property in the
area used by the neighbor, and the
neighbor brought suit against the tenant
and the owner to quiet title to an easement
for access by prescription. All parties
agreed that the neighbor had never had any
contact with the owner.
The court held that no prescriptive
easement could be acquired against the
owner-landlord as a matter of law. The
Civil Code provides that "[n]o future
interest can be defeated or barred by any
alienation or other act of the owner of the
intermediate or precedent interest, nor by
any destruction of such precedent interest
by forfeiture . . . or otherwise . . . ."[FN33]
It also provides that "[a] person having an
estate in fee, in remainder or reversion,
may maintain an action for any injury done
to the inheritance, notwithstanding an
intervening estate for . . . years, and
although, . . . he has no interest in the
property at the commencement of the
action."[FN34]
The first section relates to the protection of
an "ownership interest," and permits the
owner of a reversionary interest to bring an
action for damages for waste to the
inheritance. The second section refers to
protection of possessory interests. In order
to prevent the running of the prescriptive
period, the owner must have a right of
immediate possession to maintain an
action for trespass or injunction against the
use by a third party. Because the owner's
estate is reversionary, and the owner has
no presently vested estate in the
property,[FN35] the owner cannot bring an
action for trespass or ejectment until
expiration of the lease. Therefore, no
prescriptive easement can be acquired by a
third person against the owner's
reversionary interest in the
property.[FN36]
Cases:
Use by mistake. In Brewer v. Murphy, 161
Cal. App. 4th 928, 74 Cal. Rptr. 3d 436
(5th Dist. 2008), the court first held that
California law recognizes prescriptive
water rights in the circumstances presented
in the case. Second, in analyzing the
elements of a prescriptive easement, the
court noted the exception to the mistake
rule if the user simultaneously
acknowledges the owner's rights. The
defendants argued that the plaintiffs pre-
litigation negotiation fell into this
exception to the mistake rule. The court
disagreed, holding that plaintiffs asserted
their right to use the water during their
efforts to negotiate a resolution with
defendants.
[END OF SUPPLEMENT]
[FN1] See 16:3 to 16:4 (adverse

possession; color of title or claim of right).
[FN2] Code Civ. Proc., 321. Mosk v.
Summerland Spiritualist Ass'n, 225 Cal.
App. 2d 376, 381, 37 Cal. Rptr. 366 (2d
Dist. 1964); Wareham v. Randolph, 184
Cal. App. 2d 218, 225, 7 Cal. Rptr. 483
(2d Dist. 1960); Madden v. Alpha
Hardware & Supply Co., 128 Cal. App. 2d
72, 75, 274 P.2d 705 (3d Dist. 1954).
[FN4] See 15:36 (permission by the
property owner; posted or recorded
notice).
[FN5] Abbott v. Pond, 142 Cal. 393, 395,
76 P. 60 (1904); Cleary v. Trimble, 229
Dist. 1964); Knight v. Cohen, 7 Cal. App.
43, 47, 93 P. 396 (2d Dist. 1907); Alper v.
Tormey, 7 Cal. App. 8, 10, 93 P. 402 (3d
Dist. 1907).
See also 15:34 (visible, open, and
notorious).
[FN6] Sorensen v. Costa, 32 Cal. 2d 453,
459, 196 P.2d 900 (1948); Abbott v. Pond,
142 Cal. 393, 397, 76 P. 60 (1904); Kerr
Land & Timber Co. v. Emmerson, 233
Cal. App. 2d 200, 231, 43 Cal. Rptr. 333
(1st Dist. 1965); Cleary v. Trimble, 229
Dist. 1964); Medina v. Brown, 172 Cal.
App. 2d 208, 212, 342 P.2d 353 (3d Dist.
1959).
[FN7] Clarke v. Clarke, 133 Cal. 667, 669,
66 P. 10 (1901); Berry v. Sbragia, 76 Cal.
App. 3d 876, 880, 143 Cal. Rptr. 318 (1st
Dist. 1978) (disapproved of by, Gilardi v.
Hallam, 30 Cal. 3d 317, 178 Cal. Rptr.
624, 636 P.2d 588 (1981)); Richmond
Ramblers Motorcycle Club v. Western
Title Guaranty Co., 47 Cal. App. 3d 747,
754, 121 Cal. Rptr. 308 (1st Dist. 1975);
McCarty v. Walton, 212 Cal. App. 2d 39,
44, 27 Cal. Rptr. 792 (3d Dist. 1963);
Zunino v. Gabriel, 182 Cal. App. 2d 613,
616-618, 6 Cal. Rptr. 514, 80 A.L.R.2d
1088 (1st Dist. 1960); Case v. Uridge, 180
Cal. App. 2d 1, 5, 4 Cal. Rptr. 85 (4th Dist.
1960); Eddy v. Demichalis, 100 Cal. App.
517, 520, 280 P. 389 (1st Dist. 1929).
See 15:29 (elements and requirements;
comparison to other methods of creation),
15:30 (adverse possession compared).
[FN8] Case v. Uridge, 180 Cal. App. 2d 1,
7, 4 Cal. Rptr. 85 (4th Dist. 1960).
[FN9] Jones v. Tierney-Sinclair, 71 Cal.
App. 2d 366, 369, 162 P.2d 669 (4th Dist.
1945); Nelson v. Robinson, 47 Cal. App.
2d 520, 526, 118 P.2d 350 (3d Dist. 1941).
See 15:34 (visible, open, and notorious).
notorious).
3d 702, 709, 194 Cal. Rptr. 331 (2d Dist.
1983) (notice to trustee); Guerra v.
Packard, 236 Cal. App. 2d 272, 288-290,
46 Cal. Rptr. 25 (1st Dist. 1965) (ranch
foreman).
See also 11:70 to 11:74 (imputed
notice), 11:74 (notice to an escrow
agent).
notorious).
notorious).
establish prescriptive easement), 15:34
(visible, open, and notorious).
[FN15] Scott v. Henry, 196 Cal. 666, 669,
239 P. 314 (1925); Northern California
Power Co., Consolidated, v. Flood, 186
Cal. 301, 305, 199 P. 315 (1921); Fogarty
v. Fogarty, 129 Cal. 46, 48, 61 P. 570
(1900); Gaither v. Gaither, 165 Cal. App.
2d 782, 785, 332 P.2d 436 (3d Dist. 1958);
Rose v. Peters, 59 Cal. App. 2d 833, 835,
139 P.2d 983 (1st Dist. 1943); Balestra v.
Button, 54 Cal. App. 2d 192, 199, 128
P.2d 816 (3d Dist. 1942).
See also Adverse possession under parol
gift of land, 43 A.L.R.2d 6.
Cal. Rptr. 773, 676 P.2d 584 (1984);
Pacific Gas & Elec. Co. v. Crockett Land
& Cattle Co., 70 Cal. App. 283, 287, 233
P. 370 (1st Dist. 1924).
property owner).
[FN18] See Frederick v. Dickey, 91 Cal.
358, 360-362, 27 P. 742 (1891); Chapman
v. Sky L'Onda Mut. Water Co., 69 Cal.
App. 2d 667, 679-681, 159 P.2d 988 (1st
Dist. 1945).
See 15:2 (licenses distinguished).
[FN19] See 15:45 (estoppel; executed
oral conveyance).
[FN20] Gilardi v. Hallam, 30 Cal. 3d 317,
321, 178 Cal. Rptr. 624, 636 P.2d 588
(1981); Sorensen v. Costa, 32 Cal. 2d 453,
459-460, 196 P.2d 900 (1948); O'Banion
v. Borba, 32 Cal. 2d 145, 148-152, 195
P.2d 10 (1948); Humphreys v.
Blasingame, 104 Cal. 40, 41, 37 P. 804
(1894); Otay Water Dist. v. Beckwith, 1
223 (4th Dist. 1991); Lord v. Sanchez, 136
Cal. App. 2d 704, 289 P.2d 41 (1st Dist.
1955); Adams v. Smith's Estate, 88 Cal.
App. 2d 910, 912, 199 P.2d 730 (2d Dist.
1948); Shonafelt v. Busath, 66 Cal. App.
2d 5, 9-14, 151 P.2d 873 (2d Dist. 1944).
See Adverse possession due to ignorance
or mistake as to boundaries, 97 A.L.R. 14.
See also 16:15 (adverse possession;
effect of mistake).
[FN21] Field-Escandon v. Demann, 204
Cal. App. 3d 228, 234-237, 251 Cal. Rptr.
(Sept. 29, 1988) (dictum).
3d 702, 710, 194 Cal. Rptr. 331 (2d Dist.
1983).
See 15:32 (burden of proof to establish
[FN23] Sorensen v. Costa, 32 Cal. 2d 453,
461, 196 P.2d 900 (1948); Montecito
Valley Water Co. v. City of Santa Barbara,
144 Cal. 578, 596-597, 77 P. 1113 (1904);
Wood v. Davidson, 62 Cal. App. 2d 885,
889, 145 P.2d 659 (1st Dist. 1944);
McLeod v. Reyes, 4 Cal. App. 2d 143,
157, 40 P.2d 839 (3d Dist. 1935).
[FN24] Felgenhauer v. Soni, 121 Cal. App.
4th 445, 17 Cal. Rptr. 3d 135, 34 Envtl. L.
Rep. 20067 (2d Dist. 2004).
[FN25] Miller v. Johnston, 270 Cal. App.
2d 289, 293, 75 Cal. Rptr. 699 (1st Dist.
1969).
[FN26] Dooley's Hardware Mart v. Trigg,
270 Cal. App. 2d 337, 341, 75 Cal. Rptr.
745 (2d Dist. 1969).
See 14:1 to 14:6 (elements of agreed-
boundary-line doctrine), 16:15 (effect of
mistake).
Also see Rights derived from use by
adjoining owners for driveway, or other
common purpose, of strip of land lying
over and along their boundary, 27
A.L.R.2d 332.
[FN27] See 14:36 to 14:39 (party
walls).
[FN28] See 14:40 (division fences).
[FN29] Berry v. Sbragia, 76 Cal. App. 3d
876, 880, 143 Cal. Rptr. 318 (1st Dist.
1978) (disapproved of by, Gilardi v.
Hallam, 30 Cal. 3d 317, 178 Cal. Rptr.
624, 636 P.2d 588 (1981)) (dictum; fence
erected by mistake and use not hostile and
adverse).
between the parties), 15:38 (prescriptive
period), 16:6 (adverse possession;
possession by a tenant), 16:39 (adverse
possession; landlord and tenant).
[FN31] Dieterich Internat. Truck Sales,
Inc. v. J. S. & J. Services, Inc., 3 Cal. App.
4th 1601, 1608-1610, 5 Cal. Rptr. 2d 388
(4th Dist. 1992); Smith v. Cap Concrete,
Inc., 133 Cal. App. 3d 769, 774-775, 184
4th 1601, 1609-1611, 5 Cal. Rptr. 2d 388
(4th Dist. 1992).
See 15:37 (effect of relationship between
the parties); Miller & Starr, California
Real Estate Digest 3d, Easements 3, 8.
[FN35] See 9:26 (reversions), 19:56
(landlord's reversion), 19:126 (landlord
and tenant; waste).
4th 1601, 1609-1611, 5 Cal. Rptr. 2d 388
(4th Dist. 1992).
Comment: The court relied on Smith v.
Cap Concrete, Inc., 133 Cal. App. 3d 769,
184 Cal. Rptr. 308 (1st Dist. 1982),
involving a trespass action by a landlord
against a third party.

MILCALRE 15:35
Reuters/West. No Claim to Orig. U.S. Govt.

Works

Kenneth Styles
5. Prescription
15:36. Use requirementsPermission by

the property owner; posted or recorded
notice
Possession with permission is not adverse. A

user acts under a claim of right by denying that
he or she is using the easement with the
permission of, or by a license from, the
servient tenement owner.[FN1] When the use
of property is made with the permission or
license of the servient tenement owner, by an
agreement, or under a lease,[FN2] a user
cannot acquire a prescriptive easement.[FN3]
"It has consistently been held that a
prescriptive right to land will not be acquired
through its use by license of the owner, or by . .
. permission, express or implied."[FN4] Once
permission is given, it is presumed to continue
until the user communicates to the servient
tenement owner a clear and unqualified
disclaimer and repudiation of the
permission.[FN5]
Not adverse if by neighborly
accommodation. Not every use of a neighbor's
property ripens into a vested right. In many
cases the use is merely the type that is
customary in the area[FN6] or normally
allowed by one neighbor to another as a
friendly gesture and accommodation. Such use
cannot ripen into a prescriptive right.[FN7]
A sign has no effect on a vested right. The
posting of a sign by the property owner that use
is permissive and revocable has no effect
where the five-year prescriptive period has
expired at the time it is posted. A sign cannot
have any effect on a right that has already
vested.[FN8]
Permission by posting sign. Whether or not
permission can be given merely by placing a
sign on the property depends on the contents of
the sign and the surrounding circumstances.
The mere posting of a sign that states, "private
property," "no trespassing," or "permission to
pass is revocable," is not, by itself, sufficient to
establish that the use is permissive. The posting
of such signs indicates the permissive nature of
the use,[FN9] but it is not conclusive. Whether
the posted sign negates the hostile and adverse
use of the easement is a question of fact to be
decided from the facts and circumstances of
each case.[FN10]
Case Example: A property owner posted a
sign reading "Private Entrance, Revocable to
Pass at any Time." The court concluded: "It
appears, therefore, that such a posted sign as
here displayed was only one of the many
factors to be considered by the trial court and
the existence of the sign did not conclusively
show that the use was only permissive as to the
plaintiff.[FN11]
Statutory protections against prescription.
There are two separate statutes that provide
methods by which a property owner can
effectively protect his or her property against
loss by prescription.
Recorded notice of specific use. One statute
permits a landowner to record a notice of
revocable consent to the particular use of the
land for the purposes described in the notice.
The recordation of the notice is evidence that
all subsequent use of the property is
permissive. When the use is by specific
persons other than the general public, the
notice must be served on the particular user by
registered or certified[FN12] mail, return
receipt requested. This consent can be
terminated by the property owner recording a
notice of revocation.[FN13]
Recorded notice of permissive use by public.
When the property is being used by the public,
the permission provided in the notice may be
conditioned on reasonable restrictions on the
time, place, and manner of public use. After
recording the notice, the owner cannot prevent
the permitted public use.[FN14] An owner who
gives permission for public use in order to
prevent the acquisition of rights by prescription
does not assume any liability for injuries that
may be sustained by those persons who come
onto the land except for the willful or
malicious failure to guard or warn against a
dangerous condition, or unless a person is
expressly invited on the premises or has given
consideration to the owner for entry.[FN15]
Notice of permissive use by posting sign. The
second statutory method of preventing the
acquisition of easement rights by prescription
is to post a sign at each entrance to the property
or at intervals of not more than 200 feet along
the boundary. The signs should read
substantially as follows: "Right to pass by
permission, and subject to control, of owner:
Section 1008, Civ. Code."[FN16] When the
statute is applicable it provides a conclusive
method of preventing acquisition of a
prescriptive easement.[FN17]
Case Example: The posting of signs permitted
by Civ. Code, 1008 must be by the "owner"
and not a lessee. In a case in which the other
elements for a prescriptive easement over a
road were satisfied, the defendant owner
argued that "permission to pass" signs posted
by Texaco, a lessee under an oil and gas lease,
satisfied the code. The court disagreed and held
that Civ. Code, 1008 required the posting of
signs by the "owner," not a lessee.[FN18]
Comment: Shopping center and other
commercial property owners often record a
notice that the parking area can be used by the
public to shop on the premises but use is
restricted to customers of the commercial
establishments on the property. The owner also
may post a sign on the property that
unauthorized vehicles will be removed. The
recorded and posted signs are not inconsistent
because they both serve the common objective
of permitting use by customers and preventing
use by non-customers who might otherwise
attempt to obtain prescriptive parking rights.
[FN1] Lord v. Sanchez, 136 Cal. App. 2d 704,

706, 289 P.2d 41 (1st Dist. 1955).
See also 15:35 (hostile, adverse, and under
claim of right).
[FN3] Cassin v. Cole, 153 Cal. 677, 678, 96 P.
277 (1908); Guerra v. Packard, 236 Cal. App.
2d 272, 287, 46 Cal. Rptr. 25 (1st Dist. 1965);
Case v. Uridge, 180 Cal. App. 2d 1, 6, 4 Cal.
Rptr. 85 (4th Dist. 1960); Finley v. Botto, 161
Cal. App. 2d 614, 620, 327 P.2d 55 (3d Dist.
1958); Crimmins v. Gould, 149 Cal. App. 2d
383, 389, 308 P.2d 786 (1st Dist. 1957); Peet v.
Schurter, 142 Cal. App. 2d 237, 245, 298 P.2d
142 (2d Dist. 1956); Hall v. Burrows, 121 Cal.
App. 2d 194, 196, 262 P.2d 869 (3d Dist.
1953); Brown v. Voight, 112 Cal. App. 2d 569,
572, 246 P.2d 698 (4th Dist. 1952); Kaler v.
Brown, 101 Cal. App. 2d 716, 719, 226 P.2d
66 (2d Dist. 1951); Dooling v. Dabel, 82 Cal.
App. 2d 417, 422-424, 186 P.2d 183 (3d Dist.
1947); Carroll v. Agliano, 80 Cal. App. 2d 46,
47, 180 P.2d 747 (4th Dist. 1947).
See Adverse possession or prescription as
affected by owner's informal consent
subsequent to hostile entry, 65 A.L.R. 128.
See also 15:2 (licenses distinguished).
Permission given to corporate officers may not
prevent a corporation from establishing a
prescriptive easement. See 15:37 (effect of
relationship between the parties).
[FN4] Richmond Ramblers Motorcycle Club v.
Western Title Guaranty Co., 47 Cal. App. 3d
747, 754, 121 Cal. Rptr. 308 (1st Dist. 1975).
[FN5] Southern Pac. Co. v. City and County of
San Francisco, 62 Cal. 2d 50, 56, 41 Cal. Rptr.
79, 396 P.2d 383 (1964); Everett v. Bosch, 241
Dist. 1966); Madden v. Alpha Hardware &
Supply Co., 128 Cal. App. 2d 72, 75, 274 P.2d
705 (3d Dist. 1954); Brandon v. Umpqua
Lumber & Timber Co., 26 Cal. App. 96, 98,
146 P. 46 (3d Dist. 1914).
See 15:2 (licenses distinguished).
[FN6] Clarke v. Clarke, 133 Cal. 667, 668-671,
66 P. 10 (1901); Case v. Uridge, 180 Cal. App.
2d 1, 6, 7, 4 Cal. Rptr. 85 (4th Dist. 1960);
Eddy v. Demichalis, 100 Cal. App. 517, 520,
280 P. 389 (1st Dist. 1929).
[FN7] Clarke v. Clarke, 133 Cal. 667, 668-671,
66 P. 10 (1901); Lynch v. Glass, 44 Cal. App.
3d 943, 950, 119 Cal. Rptr. 139 (1st Dist.
1975); Case v. Uridge, 180 Cal. App. 2d 1, 6,
7, 4 Cal. Rptr. 85 (4th Dist. 1960).
See also 15:2 (licenses distinguished).
[FN8] Harrison v. Bouris, 139 Cal. App. 2d
170, 175, 293 P.2d 98 (4th Dist. 1956).
[FN9] Mathews v. Brinton, 132 Cal. App. 2d
433, 439, 282 P.2d 93 (4th Dist. 1955); Carroll
v. Agliano, 80 Cal. App. 2d 46, 47, 180 P.2d
747 (4th Dist. 1947) ("private road"); Jones v.
Tierney-Sinclair, 71 Cal. App. 2d 366, 370,
162 P.2d 669 (4th Dist. 1945); Tarpey v. Veith,
22 Cal. App. 289, 293, 134 P. 367 (1st Dist.
1913).
See Bartholomew v. Staheli, 86 Cal. App. 2d
844, 854, 195 P.2d 824 (3d Dist. 1948).
[FN10] Gion v. City of Santa Cruz, 2 Cal. 3d
29, 41, 84 Cal. Rptr. 162, 465 P.2d 50 (1970);
Guerra v. Packard, 236 Cal. App. 2d 272, 288,
46 Cal. Rptr. 25 (1st Dist. 1965); People v.
Sayig, 101 Cal. App. 2d 890, 897, 226 P.2d
702 (1st Dist. 1951); City of Laguna Beach v.
Consolidated Mortg. Co., 68 Cal. App. 2d 38,
44, 155 P.2d 844 (4th Dist. 1945).
[FN11] Pratt v. Hodgson, 91 Cal. App. 2d 401,
405, 204 P.2d 934 (4th Dist. 1949).
See 15:68 (duty to third parties), 22:40
(landowner's duty to third persons).
[FN16] Civ. Code, 1008.
[FN17] Civ. Code, 1008 provides that, if its
terms are complied with, "No use . . . no matter
how long continued, of any land, shall ever
ripen into an easement by prescription."
[FN18] Aaron v. Dunham, 137 Cal. App. 4th
1244, 41 Cal. Rptr. 3d 32 (1st Dist. 2006),
review denied, (June 21, 2006) (though not
analyzed, presumably the lessee did not have
full possessory rights to the roadway under its
oil and gas lease; see 15:35 (use requirements
to establish a prescriptive easement)).
MILCALRE 15:36

Kenneth Styles

5. Prescription
15:37. Use requirementsEffect of

relationship between the parties

Proof may depend on the relationship
between the parties. One of the factors
considered by the courts in determining
whether a prescriptive easement has been
established is the relationship between the
person who claims the easement and the owner
of the servient tenement.[FN1] In some
situations, a prescriptive interest cannot be
acquired because of the special relationship
between the parties.[FN2]
Prescription by a grantor. Under proper
circumstances a grantor can acquire a
prescriptive easement over property he or she
has conveyed.[FN3]
Case Example: The owner of a golf course
conveyed to the owner's predecessor property
that bordered one of the grantor's fairways. The
deed contained a restriction that prohibited the
construction of any improvements within a 20-
foot area along the boundary line. For 40 years
after the conveyance the grantor and its
members used the 20-foot strip that had been
conveyed as a "rough," and the court concluded
that this usage was sufficient to establish a
prescriptive easement over the area to continue
its use as a "rough."[FN4]
Prescription by corporation. A corporation
has the same capacity to acquire an easement
by prescription as does any other person,[FN5]
and permission to use the area claimed for an
easement given by the owner of the servient
tenement to a corporate officer may not prevent
the corporation from establishing a prescriptive
easement.[FN6]
Prescription by optionee. The use of property
by an optionee in possession under an option to
purchase is permissive and not adverse as a
matter of law.[FN7]
Prescription by licensee. Because the basis for
a prescriptive right is the ability of the owner to
prevent the use, a person who has an
irrevocable license should not be permitted to
establish a prescriptive right until the license
becomes revocable,[FN8] except to the extent
that the use exceeds the use granted by the
license.[FN9]
As a general rule, a user cannot acquire a
prescriptive right where the use is with the
permission of the owner.[FN10] Therefore,
when an owner gives a revocable license to use
the owner's property, the owner has a remedy
to prevent the use, but the use is not adverse to
the rights of the owner.[FN11] However, if the
user is unaware that the use is with permission,
and he or she otherwise establishes the
essential hostile and adverse nature of the
easement, a prescriptive right can be
acquired.[FN12]
Case Example: The owner told his broker that
the property could only be used pursuant to a
revocable parol license, but the broker failed to
communicate this restriction to the purchasers.
The use of the property was allowed to ripen
into a prescriptive easement.[FN13]
Tenant's prescriptive use is for the benefit of
the landlord. The possession of the tenant is
the possession of the landlord so that the
tenant's possession is sufficient to establish a
prescriptive right in favor of the
landlord.[FN14]
Prescription by a tenant against a landlord.
As long as the tenant is in possession under a
lease, and the occupancy is consistent with the
terms of the lease, the tenant's possession is not
adverse and cannot ripen into a prescriptive
title or interest against the landlord during the
term of the lease.[FN15] A prescriptive title
cannot be acquired by the tenant against the
owner of property unless the owner is made
aware of the tenant's intent to acquire
prescriptive rights. As long as the tenant's use
is within the terms of the lease, the landlord
has no remedy to prevent the tenant's use
during the term of the lease.[FN16]
After the expiration of the lease, the occupancy
by the tenant is no longer with the permission
of the landlord and he or she has a remedy to
evict the tenant. However, it is presumed that
the tenant's possession remains as possession
of the landlord for a period of five years after
the expiration of the term of the lease, or the
last payment of rent, and after that five-year
period, the possession may become
adverse.[FN17]
Prescription by the owner of an easement by
necessity. When an easement is implied from
necessity, the owner of the servient tenement
cannot object to its use and, therefore, a
prescriptive easement cannot be established
until the necessity terminates.[FN18]
Prescription by cotenant. Because cotenants
have an equal right of possession of their
jointly held property,[FN19] one cotenant
cannot acquire a prescriptive easement in the
property against the other cotenants unless
actual notice of the hostile and adverse
possession is clearly made known to the other
cotenants.[FN20] A prescriptive period cannot
commence from the use by one cotenant of the
cotenancy property until after a partition of the
jointly held property[FN21] or until there has
been an ouster of one cotenant by the cotenant
in possession.[FN22]
Cases:
Tenant's prescriptive use is for the benefit of
the landlord. In Grant v. Ratliff, 164 Cal. App.
4th 1304, 79 Cal. Rptr. 3d 902 (2d Dist. 2008),
the plaintiffs sought to create a prescriptive
easement over the defendant's property. Both
parcels were initially owned by a couple, but
were divided as part of divorce proceedings
and later conveyed to plaintiffs and defendants.
Plaintiffs argued that the prior use by the
couple's son of one property was sufficiently
adverse to the other property. The court upheld
the trial court's conclusion that the son's use of
the road was not adverse, but rather was a
family accommodation.
[END OF SUPPLEMENT]
[FN1] See What acts, claims, circumstances,

instruments, color of title, judgment, or thing
of record will ground adverse possession in a
life tenant as against remaindermen or
reversioners, 58 A.L.R.2d 299.
See 17:15 (priority between security
interests).
[FN2] See 16:26 to 16:45 (adverse
possession; rights of specific parties).
[FN3] MacDonald Properties, Inc. v. Bel-Air
Country Club, 72 Cal. App. 3d 693, 701-703,
140 Cal. Rptr. 367 (2d Dist. 1977).
See 16:27 (rights of the parties: grantor and
grantee; donor and donee).
[FN4] MacDonald Properties, Inc. v. Bel-Air
Country Club, 72 Cal. App. 3d 693, 701-703,
140 Cal. Rptr. 367 (2d Dist. 1977).
[FN5] Twin Peaks Land Co. v. Briggs, 130
Dist. 1982).
[FN6] Chapman v. Sky L'Onda Mut. Water
Co., 69 Cal. App. 2d 667, 672, 159 P.2d 988
(1st Dist. 1945).
Co., 69 Cal. App. 2d 667, 674, 159 P.2d 988
(1st Dist. 1945).
See 16:28 (adverse possession; rights of the
parties: vendor and vendee; optionor and
optionee).
[FN8] However, several older cases have
treated an irrevocable license based on estoppel
similar to a prescriptive easement; Cairns v.
Haddock, 60 Cal. App. 83, 212 P. 222 (3d Dist.
1922). See Ricioli v. Lynch, 65 Cal. App. 53,
58, 223 P. 88 (3d Dist. 1923). See 15:2
(licenses distinguished).
[FN9] A prescriptive right may be acquired by
the licensee or easement owner by use in
excess of that provided in the original grant of
license or easement.
See Enlargement of easement by use for
purpose or in a manner other than that
specified in the grant, 110 A.L.R. 915.
property owner).
[FN11] See 15:35 (hostile, adverse, and
under a claim of right), 15:36 (permission by
the property owner).
[FN12] Van Amersfoort v. Young, 105 Cal.
App. 2d 22, 25-27, 232 P.2d 569 (4th Dist.
1951).
[FN13] Van Amersfoort v. Young, 105 Cal.
App. 2d 22, 25-27, 232 P.2d 569 (4th Dist.
1951).
[FN14] See 15:38 (prescriptive period),
16:6 (adverse possession; possession by a
tenant), 16:39 (adverse possession; landlord
and tenant).
[FN15] See 15:35 (hostile, adverse, and
under claim of right), 15:36 (permission of
the property owner).
See 15:35 (hostile, adverse, and under claim
of right), 15:38 (prescriptive period), 16:6
(adverse possession; possession by a tenant),
16:39 (adverse possession; landlord and
tenant).
See 16:6 (adverse possession; possession by
a tenant), 16:39 (adverse possession; landlord
and tenant).
[FN18] See 15:28 (easement by necessity;
requirement of strict necessity), 15:29
(prescriptive easements; elements and
requirements).
[FN19] See 12:2 (cotenants; right to
possession).
[FN20] Dimmick v. Dimmick, 58 Cal. 2d 417,
419-422, 24 Cal. Rptr. 856, 374 P.2d 824
(1962); Ward v. City of Monrovia, 16 Cal. 2d
815, 822, 108 P.2d 425 (1940); Johns v.
Scobie, 12 Cal. 2d 618, 623, 86 P.2d 820, 121
A.L.R. 1404 (1939).
See 12:6 (adverse possession by one cotenant
against the other cotenant), 15:34 (visible,
open, and notorious), 15:35 (hostile, adverse,
and under claim of right); 16:32 (adverse
possession; cotenants), 16:33 (examples of
adverse occupancy between cotenants).
See Adverse possession between cotenants, 82
A.L.R.2d 5.
[FN21] Oliver v. Burnett, 10 Cal. App. 403,
408, 102 P. 223 (1st Dist. 1909).
See 12:14 to 12:21 (right of partition:
procedure, decree, compensation, defenses).
[FN22] Kraemer v. Kraemer, 167 Cal. App. 2d
291, 306, 334 P.2d 675 (4th Dist. 1959);
Hebert v. Miller, 94 Cal. App. 2d 211, 214, 210
P.2d 251 (3d Dist. 1949).
See 12:5 (cotenants; ouster), 12:6 (adverse
possession by one cotenant against the other
cotenant), 12:8 (improvement of the
property), 16:32 (adverse possession;
cotenants), 16:33 (examples of adverse
occupancy between cotenants).
Also see Adverse possession between
cotenants, 82 A.L.R.2d 5.

MILCALRE 15:37
Kenneth Styles

5. Prescription

15:38. Prescriptive period
The use must continue for five years. To

establish a prescriptive right, the easement
must be used continuously in the required
manner for a period of five years.[FN1] The
measuring period starts to run when the use of
the servient tenement is such that it can be
prevented by the owner.[FN2] In other words,
the prescriptive right is based on the fact that
the owner of the burdened property knowingly
permitted a use that he or she could have
prevented.[FN3]
The condition subsequent that terminates an
easement created by an express reservation
commences the prescriptive period.[FN4]
Period of common ownership not counted.
Because a person cannot have an easement on
his or her own property,[FN5] the time period
during which the servient and dominant
tenements are held in common ownership is
not counted in calculating the prescriptive
period.[FN6]
Periods of use can be added. In measuring the
five-year period, the time the property is used
by the dominant tenement's predecessors can
be added to the time it is used by the
prescriptive claimant. The addition of periods
of use by different persons is called
"tacking."[FN7]
A grantee can add the prior use of the
grantor. When the easement is used for part of
a five-year period by the grantor of the
dominant tenement, and the grantee uses it for
the remainder of the required term, there is a
sufficient continuity of use to establish a
prescriptive right even though there is no
specific mention of the easement in the
conveyance.[FN8] Because a corporation has
the capacity to acquire an easement by
prescription, it can add the use by its
predecessors to the period of its own use.[FN9]
Similarly, the use by the vendee under a
conditional contract of sale can be added to the
vendor's use to establish that the use has
continued for the complete five-year
period.[FN10]
Heirs can add the use of a deceased
predecessor. The heirs of the owner of a
dominant tenement can add the use by the
decedent to their own use to establish the
required term.[FN11]
Licensor can add the prior use by a licensee.
A licensor who licenses another to use the
easement can establish a prescriptive use for
the prescribed period by adding the period that
it was used by the licensee.[FN12]
Landlord can add the use by a tenant. Where
the dominant tenement is leased and the
easement is used by the tenant, the tenant's
occupation is the occupation of the landlord,
and the landlord can add the tenant's use of the
easement to his or her own use.[FN13]
Case Example: A mortgagee who held
possession through a tenant for five years after
the statute of limitations had expired on the
secured debt was able to establish title by
adverse possession.[FN14]
Origination of use by the tenant. While one
case stated, in dicta, that a tenant cannot
originate the adverse use unless the easement is
expressly or impliedly included within the
lease,[FN15] at least two cases have held that a
prescriptive right was established even though
the use was originated by the tenant without
the particular use being included within the
terms of the lease.[FN16]
Effect of the death of the property owner.
The occupancy of the prescriptive user must be
continuous for the entire five-year period, but
there is no break in the continuity of possession
as a result of the death of the property owner or
the inheritance of the property by the owner's
heirs or devisees.[FN17]
Effect of the disability of the property
owner. The expiration of the five-year
prescriptive period assumes that the property
owner had a remedy to prevent the occupancy
of the property by the prescriptive user.[FN18]
When the owner is under the age of
majority[FN19] or insane,[FN20] the period of
the minority or insanity, not to exceed 20
years, is not considered when calculating the
five-year period for prescription. The period
does commence after the period of disability
ceases or the disabled person dies, and the
prescriptive interest may be acquired during
the subsequent five-year period.[FN21]
Effect of imprisonment of the owner. When a
property owner is imprisoned for a crime for a
term less than life, the time of imprisonment,
not exceeding two years, is not considered
when calculating the five-year prescriptive
period.[FN22]
[FN1] Civ. Code, 1007; Code Civ. Proc.,

318, 319, 321, 322, 325; Nelson v. Robinson,
47 Cal. App. 2d 520, 526, 118 P.2d 350 (3d
Dist. 1941); Powers v. Perry, 12 Cal. App. 77,
83, 106 P. 595 (1st Dist. 1909).
See 15:33 to 15:37 (use requirements).
[FN2] See 15:33 to 15:37 (use
requirements).
Also see 16:21 (effect of suit by servient
tenement owner on the statute of limitations).
[FN3] See 15:35 (hostile, adverse, and under
claim of right), 15:36 (permission by the
property owner), 15:37 (relationship between
the parties).
134, 136-138, 77 Cal. Rptr. 141 (2d Dist.
1969).
[FN5] See 15:75 (merger).
[FN6] Hare v. Craig, 206 Cal. 753, 755, 276 P.
336 (1929); Woo v. Martz, 110 Cal. App. 2d
559, 563, 243 P.2d 131 (2d Dist. 1952); Edgar
v. Pensinger, 73 Cal. App. 2d 405, 411, 166
P.2d 354 (4th Dist. 1946).
See 12:6 (adverse possession by one cotenant
against the other cotenant), 15:34 (visible,
open, and notorious), 15:35 (hostile, adverse,
and under claim of right), 16:32 (adverse
possession; cotenants), 16:33 (examples of
adverse occupancy between cotenants), 15:37
(effect of relationship between the parties).
See Time during which dominant and servient
tracts were in same ownership or under same
control as excluded or included in determining
easement by prescription, 98 A.L.R. 591.
[FN7] See Tacking as applied to prescriptive
easements, 72 A.L.R.3d 648; Tacking adverse
possession of area not within description of
deed or contract, 17 A.L.R.2d 1128.
See also 15:33 to 15:37 (use requirements).
[FN8] Code Civ. Proc., 319; Conaway v.
Toogood, 172 Cal. 706, 711, 158 P. 200
(1916); Kripp v. Curtis, 71 Cal. 62, 66, 11 P.
879 (1886); Miller v. Johnston, 270 Cal. App.
2d 289, 295, 75 Cal. Rptr. 699 (1st Dist. 1969);
Ross v. Lawrence, 219 Cal. App. 2d 229, 233,
33 Cal. Rptr. 135 (4th Dist. 1963); Jones v.
Tierney-Sinclair, 71 Cal. App. 2d 366, 369-
371, 162 P.2d 669 (4th Dist. 1945); Shonafelt
v. Busath, 66 Cal. App. 2d 5, 14, 151 P.2d 873
(2d Dist. 1944); Bernstein v. Dodik, 129 Cal.
App. 454, 458, 18 P.2d 983 (1st Dist. 1933).
[FN9] Twin Peaks Land Co. v. Briggs, 130
Dist. 1982).
[FN10] In Jones v. Young, 147 Cal. App. 2d
496, 497, 305 P.2d 286 (3d Dist. 1957), the
owners of the dominant tenement established
their prescriptive easement by adding the
period of use exercised by their tenants,
vendees, and subvendees from the vendees.
[FN11] Code Civ. Proc., 328; Kripp v.
Curtis, 71 Cal. 62, 66, 11 P. 879 (1886)
(dictum).
See 15:37 (effect of relationship between the
parties).
[FN12] Kerr Land & Timber Co. v. Emmerson,
233 Cal. App. 2d 200, 229, 43 Cal. Rptr. 333
(1st Dist. 1965).
[FN13] Code Civ. Proc., 326; O'Banion v.
Borba, 32 Cal. 2d 145, 148, 195 P.2d 10
(1948); Conaway v. Toogood, 172 Cal. 706,
710, 158 P. 200 (1916); Franz v. Mendonca,
131 Cal. 205, 207-208, 63 P. 361 (1900);
Zimmer v. Dykstra, 39 Cal. App. 3d 422, 431,
114 Cal. Rptr. 380 (2d Dist. 1974); Cleary v.
Trimble, 229 Cal. App. 2d 1, 7, 39 Cal. Rptr.
776 (3d Dist. 1964); Sufficool v. Duncan, 187
Dist. 1960); Marangi v. Domenici, 161 Cal.
App. 2d 552, 555-558, 326 P.2d 527 (2d Dist.
1958); Jones v. Young, 147 Cal. App. 2d 496,
499, 305 P.2d 286 (3d Dist. 1957); Woo v.
Martz, 110 Cal. App. 2d 559, 562, 243 P.2d
131 (2d Dist. 1952); Murray v. Fuller, 82 Cal.
App. 2d 400, 405, 186 P.2d 157 (2d Dist.
1947); Shonafelt v. Busath, 66 Cal. App. 2d 5,
13, 151 P.2d 873 (2d Dist. 1944); Balestra v.
Button, 54 Cal. App. 2d 192, 199, 128 P.2d
816 (3d Dist. 1942).
See 15:37 (effect of relationship between the
parties).
[FN14] Cory v. Santa Ynez Land &
Improvement Co., 151 Cal. 778, 783, 91 P. 647
(1907).
[FN15] Murray v. Fuller, 82 Cal. App. 2d 400,
406, 186 P.2d 157 (2d Dist. 1947).
[FN16] Hails v. Martz, 28 Cal. 2d 775, 778,
172 P.2d 52 (1946); Woo v. Martz, 110 Cal.
App. 2d 559, 562, 243 P.2d 131 (2d Dist.
1952).
See also Tenant's adverse possession or use of
third person's land not within the description in
the lease as inuring to landlord's benefit so as
to support latter's title or right by adverse
possession or prescription, 105 A.L.R. 1187.
See 16:6 (possession by a tenant).
[FN17] See 15:33 (use requirements;
continuous).
[FN18] Code Civ. Proc., 318, 319.
See 15:35 (hostile, adverse, and under a
claim of right).
[FN19] See 1:11 (capacity of a minor to
contract), 8:23 (conveyance by a minor).
[FN20] See 1:12 to 1:15 (contracts; mental
incapacity), 8:22 (deeds; mental incapacity).
[FN22] Code Civ. Proc., 328.5.

MILCALRE 15:38

Kenneth Styles
5. Prescription
15:39. Payment of taxes

Taxes need not be paid unless separately
assessed. A person claiming title to a parcel of
real property by adverse possession must
prove, among other things, that he or she has
paid all of the real property taxes assessed
against the property for the full five-year
period.[FN1] A person claiming a prescriptive
easement is required to prove the payment of
taxes only in the rare instance in which the
easement has been separately assessed.[FN2]
The user only has to pay real property taxes
that have been separately assessed to the
easement. If the easement has not been
separately assessed, the user is not required to
prove the payment of taxes to establish his
prescriptive right.[FN3] Thus, it is possible that
the same use that does not qualify for the
creation of title by adverse possession because
the taxes have not been paid may qualify to
establish a prescriptive easement.[FN4]
Burden to prove separate assessment.
Usually, taxes are not separately assessed
against a prescriptive easement.[FN5] The
burden of proving that the taxes have been
separately assessed is on the owner of the
servient tenement.[FN6] In the absence of such
evidence, a user is not required to show that
payment has been made.[FN7]
Case Example: A prescriptive right to harvest
nuts growing on trees owned by another was
acquired by evidence of the claimant's care of
the trees and harvest of their crops for the
prescriptive period. Although the trees were
assessed separately from the land, the right to
harvest the crops was not assessed as a separate
interest in real property in the nature of a
profit. Thus, the claimant was not obligated to
pay taxes to acquire his prescriptive
right.[FN8]
Case Example: A public airport was able to
acquire an avigation easement by prescription
without proof of the payment of taxes because
it was apparent that the easement had not been
assessed separately.[FN9]

See 16:23 (requirement that the claimant pay
the taxes assessed to the property occupied),
16:24 (payment by both the owner and the
claimant), 16:25 (property covered).
1296, 1305, 54 Cal. Rptr. 2d 284 (2d Dist.
1996), as modified on denial of reh'g, (July 24,
1996).
[FN3] Gilardi v. Hallam, 30 Cal. 3d 317, 322,
178 Cal. Rptr. 624, 636 P.2d 588 (1981);
Taormino v. Denny, 1 Cal. 3d 679, 686, 83
Cal. Rptr. 359, 463 P.2d 711 (1970); Glatts v.
Henson, 31 Cal. 2d 368, 372, 188 P.2d 745
(1948); Humphreys v. Blasingame, 104 Cal.
40, 44, 37 P. 804 (1894); Berry v. Sbragia, 76
Dist. 1978) (disapproved on other grounds by,
Gilardi v. Hallam, 30 Cal. 3d 317, 178 Cal.
Rptr. 624, 636 P.2d 588 (1981)); Welsher v.
Glickman, 272 Cal. App. 2d 134, 137, 77 Cal.
Rptr. 141 (2d Dist. 1969); Cleary v. Trimble,
229 Cal. App. 2d 1, 11, 39 Cal. Rptr. 776 (3d
Dist. 1964); Costa v. Fawcett, 202 Cal. App. 2d
695, 701, 21 Cal. Rptr. 143 (5th Dist. 1962);
Sufficool v. Duncan, 187 Cal. App. 2d 544,
549, 9 Cal. Rptr. 763 (4th Dist. 1960).
[FN4] Sullivan v. Balestrieri, 142 Cal. App. 2d
332, 337, 298 P.2d 688 (1st Dist. 1956).
See 15:30 (adverse possession compared).
[FN5] Biggs Ditch Co. v. Jongste, 24 Cal. 2d
298, 303, 149 P.2d 1 (1944); Welsher v.
Glickman, 272 Cal. App. 2d 134, 137, 77 Cal.
Rptr. 141 (2d Dist. 1969); Costa v. Fawcett,
202 Cal. App. 2d 695, 701, 21 Cal. Rptr. 143
(5th Dist. 1962); Redemeyer v. Carroll, 21 Cal.
App. 2d 217, 220, 68 P.2d 739 (3d Dist. 1937);
Silva v. Hawn, 10 Cal. App. 544, 551, 102 P.
952 (3d Dist. 1909).
[FN6] Glatts v. Henson, 31 Cal. 2d 368, 371,
188 P.2d 745 (1948); Biggs Ditch Co. v.
Jongste, 24 Cal. 2d 298, 303, 149 P.2d 1
(1944); Zimmer v. Dykstra, 39 Cal. App. 3d
422, 430, 114 Cal. Rptr. 380 (2d Dist. 1974);
Welsher v. Glickman, 272 Cal. App. 2d 134,
137, 77 Cal. Rptr. 141 (2d Dist. 1969); Cleary
v. Trimble, 229 Cal. App. 2d 1, 11, 39 Cal.
Rptr. 776 (3d Dist. 1964); Sullivan v.
Balestrieri, 142 Cal. App. 2d 332, 342, 298
P.2d 688 (1st Dist. 1956); Board of Directors
of Turlock Irr. Dist. v. City of Ceres, 116 Cal.
App. 2d 824, 832, 254 P.2d 907 (3d Dist.
1953); Chapman v. Sky L'Onda Mut. Water
Co., 69 Cal. App. 2d 667, 681, 159 P.2d 988
(1st Dist. 1945); Redemeyer v. Carroll, 21 Cal.
App. 2d 217, 220, 68 P.2d 739 (3d Dist. 1937).
[FN7] Glatts v. Henson, 31 Cal. 2d 368, 371,
188 P.2d 745 (1948); Sullivan v. Balestrieri,
142 Cal. App. 2d 332, 342, 298 P.2d 688 (1st
Dist. 1956); Chapman v. Sky L'Onda Mut.
Water Co., 69 Cal. App. 2d 667, 681, 159 P.2d
988 (1st Dist. 1945); Smith v. Smith, 21 Cal.
App. 378, 380, 131 P. 890 (2d Dist. 1913).
[FN8] Costa v. Fawcett, 202 Cal. App. 2d 695,
702, 21 Cal. Rptr. 143 (5th Dist. 1962).
[FN9] Baker v. Burbank-Glendale-Pasadena
1609, 270 Cal. Rptr. 337 (2d Dist. 1990),
opinion modified, (June 18, 1990); Institoris v.
City of Los Angeles, 210 Cal. App. 3d 10, 258
Cal. Rptr. 418 (2d Dist. 1989).

MILCALRE 15:39
Kenneth Styles

5. Prescription
15:40. Enforcement by the claimant

The user can enforce the prescriptive

easement. On establishing the required use for
the prescribed period, the user acquires a
vested, enforceable, and defensible right
against the owner of the servient tenement and
any successors to the same extent as if the
easement had been created by an express
grant.[FN1]
User may quiet title. The claimant who has
used the easement in the appropriate manner
for the required period may establish the
prescriptive interest by an action to quiet
title.[FN2] Under appropriate circumstances,
the prescriptive user who files an action to
establish a prescriptive easement that has been
obstructed by the owner of the servient
tenement may obtain a mandatory injunction
ordering that the obstruction be removed.
Whether or not the injunction is granted, or on
what conditions, depends on the balancing of
the equities within the discretion of the trial
court.[FN3]
Enforcement against a bona fide purchaser.
When the prescriptive user is using the
easement at the time a possessor or
encumbrancer acquires his or her interest, the
visible, notorious use may be sufficient to
imply notice to the person acquiring the title or
lien interest in the property.[FN4] Whether a
prescriptive easement may be enforced after
the appropriate use for the required period
against a bona fide purchaser or encumbrancer
of the servient tenement, when there is no
physical evidence on the ground or evidence of
the easement in the public records, is an
unresolved issue in California.[FN5]
Priority of a prescriptive easement. As a
general rule, when the easement has been
created by satisfaction of the requirements for
prescription, it is junior to existing
encumbrances and senior to subsequent
encumbrances where the subsequent
encumbrancer has notice of the prescriptive
rights. However, a prescriptive easement
acquired by the public possibly may have
priority over existing liens. The prescriptive
easement by the public is similar to an
easement acquired by common law dedication
by public use, and such an easement has
priority over existing liens.[FN6]
Prescriptive title not marketable.
"Marketable" or "merchantable" title is a
record title that is reasonably free from
questions or defects.[FN7] The owner of a
prescriptive easement does not have a
marketable or insurable title or interest until
title in the public record is established by
appropriate judicial proceedings against the
holders of the record title to the servient
tenement.[FN8]
Prescriptive title not insurable. Customarily
marketable title is evidenced by a policy of title
insurance.[FN9] The traditional title insurance
policies only insure matters established by the
public records and specifically exclude
unrecorded easements and interests of persons
in possession of the property.[FN10] However,
newer form policies may provide coverage
depending on the circumstances.

Inc., 35 Cal. 3d 564, 573-574, 199 Cal. Rptr.
773, 676 P.2d 584 (1984); Arciero Ranches v.
Meza, 17 Cal. App. 4th 114, 123-124, 21 Cal.
Rptr. 2d 127 (5th Dist. 1993), as modified,
(July 19, 1993); Mesnick v. Caton, 183 Cal.
App. 3d 1248, 1261, 228 Cal. Rptr. 779 (2d
Dist. 1986); Jones v. Young, 147 Cal. App. 2d
496, 499-500, 305 P.2d 286 (3d Dist. 1957);
Fobbs v. Smith, 202 Cal. App. 2d 209, 213, 20
Cal. Rptr. 545 (2d Dist. 1962).
[FN2] See 34:104 to 34:112 (quiet title).
Inc., 35 Cal. 3d 564, 572, 199 Cal. Rptr. 773,
676 P.2d 584 (1984); Bennett v. Lew, 151 Cal.
App. 3d 1177, 1185, 199 Cal. Rptr. 241 (2d
Dist. 1984).
See 14:10 (interests protected), 14:11
(damages), 15:46 (balancing of the
hardships), 15:72 (remedies for interference
with the use of an easement).
[FN4] See 11:49 (bona fide purchaser; rules
of priority), 11:75 to 11:88 (notice implied
from circumstances, possession, or use),
11:87 (notice of rights acquired by adverse
possession or prescription).
[FN5] See 11:39 (conveyance by an adverse
possessor), 15:70 (enforcement of an
easement against a bona fide purchaser of the
servient tenement).
[FN6] See 11:88 (notice of rights acquired by
common law dedication), 26:30 (dedication;
relation to prior interests).
[FN7] See 2:22 (marketable or merchantable
title).
[FN8] Benson v. Shotwell, 87 Cal. 49, 25 P.
249 (1890).
[FN9] See 2:22 (marketable or merchantable
title), 7:1 (development of title insurance),
7:4 (definitions), 7:5 (basic types of title
policy forms), 7:50 (indemnity of
marketability of title).
[FN10] See 7:59 (unrecorded interests
ascertainable by inspection or inquiry), 7:60
(unrecorded easements).

Kenneth Styles

5. Prescription
15:41. Necessity for payment of

compensation
Necessity for payment. When one person uses
the property of another in the manner required
for the establishment of a prescriptive
easement, or for acquiring a title by adverse
possession, the result is the involuntary
conveyance of the interest to the user and the
loss of the rights of use of the owner of the
servient tenement to the owner of the
easement. A person who acquires a prescriptive
right or fee title by adverse possession,
receives a transfer of the right or fee title, and
the former owner loses the right or fee title,
without any compensation being paid to the
former owner.
Case Example: The prescriptive user owned a
commercial building, but access to the property
was inadequate for delivery trucks to reach the
loading docks. As a result, it was necessary for
the drivers of the delivery trucks to reach the
loading docks by trespassing on the adjacent
unimproved land in order to turn around and
back into the user's loading dock. The user
tried to buy an easement from the adjoining
owner, but the neighbor refused to negotiate.
When the neighbor began to construct a
building on the area used by the truck drivers,
the user sought an injunction, which was
refused by the court. During the course of the
litigation, the neighbor constructed a building
on the disputed area that effectively blocked
the user's future use and thereby precluded the
user from using the loading dock for deliveries.
The trial court concluded that the past use of
the adjacent property was sufficient to create a
prescriptive easement, and the user received a
judgment for damages that also required the
neighbor to remove the new building.
The appellate court disagreed with the trial
court. It suggested that a reexamination of the
laws of prescription would require a modern
court of equity to require a trespasser who
acquires prescriptive rights to pay fair market
value for the use taken. However, the
California Supreme Court rejected the view of
the appellate court and confirmed the
traditional view that the person acquiring the
prescriptive easement is not required to pay for
the rights acquired. The owner of the servient
tenement constructed a building on the
disputed area after the user filed suit claiming
the easement. Where the encroachment on the
easement was willful, the owner of the servient
tenement must remove the encroachment at his
cost, and also must pay the user damages for
the loss of use resulting from the
encroachment.[FN1]

Inc., 35 Cal. 3d 564, 199 Cal. Rptr. 773, 676
P.2d 584 (1984).
This decision was based on a four-justice
majority opinion with two justices filing
concurring opinions and one dissenting
opinion. The concurring opinion stated the
belief that compensation should be paid by the
trespasser who acquires a prescriptive
easement, but conceded that the question
should be reserved to the legislature. The
dissenting opinion stated that courts of equity
now have the authority to require the payment
of compensation.
In reference to encroachments, see 14:9 to
14:14 (encroachments).

MILCALRE 15:41
Kenneth Styles

6. Other Methods of Creation

15:42. Recorded covenant
Easements may be created by recorded

covenants. An easement can be created by a
recorded covenant that becomes a covenant
running with the land,[FN1] or an equitable
servitude between two or more parcels of land
upon the conveyance of a parcel that is
benefited or burdened by the easement.[FN2]
However, under general principles, an
easement is not created by a recorded covenant
unless it is created in connection with an
agreement between owners or in relation to a
conveyance of land.[FN3]
Covenant for an easement to a public entity.
If a city or county adopts an ordinance, a
landowner can create an easement on land
merely by the recordation of a "covenant of
easement" to the city or county for the purpose
of parking, ingress, egress, emergency access,
light and air access, landscaping, or open-
space.[FN4] At the time the covenant of
easement is recorded, all of the property that is
benefited and burdened by the easement must
be in common ownership, and the easement is
created and continues, and does not merge,
despite the common ownership of the servient
and dominant tenements.[FN5]
The covenant creates public rights without
dedication. The easement can be created in
favor of the public without the necessity of a
formal dedication that would require the public
maintenance of the easement.[FN6] Rather
than require a dedication of an easement for
such purposes as a condition to a permit or
other entitlement that imposes burdens on the
city or county, the local agency can require the
owner to execute and record a "covenant of
easement" that provides the same benefits to
the local agency without the attendant
burdens.[FN7]
Requirements. The recorded covenant of
easement must be executed by the property
owner and describe the property benefited and
the property burdened by the easement, and the
approval, permit, or designation granted that
relied upon or required the covenant.[FN8]
Thereafter, on recordation the covenant
constitutes constructive notice.[FN9] The
benefits and burdens of the covenant "run with
the land" and can be enforced by the
covenantor while he or she owns the property
benefited by the covenant, and any successor in
interest of the covenantor. The covenant can be
enforced by the covenantee or his or her
successors.[FN10]
Release of the covenants. The recorded
covenant of easement is valid only if it is
executed pursuant to a specific local
ordinance,[FN11] and the ordinance must
provide a procedure for the release of the
easement after a noticed hearing requested by
any person, whether or not such person has title
to any of the real property described in the
recorded covenant.[FN12] The easement must
be released, and a document of release
recorded, whenever the city or county
determines that it is no longer necessary for
achieving the land-use controls of the city or
county.[FN13]
Standing to challenge. No person has any
standing to enforce or challenge the covenant,
or any amendment thereto, or its release,
except the city or county and the owner of
property that is benefited or burdened by the
covenant.[FN14]
P. 499 (1909).
See 24:1 (definition and explanation of
covenants that run with the land), 24:3
(creation of covenants).
[FN2] See 24:9 to 24:15 (equitable
servitudes; creation).
[FN3] See 24:3 (creation of covenants),
24:10 to 24:11 (creation by deed or
declaration).
[FN4] Gov. Code, 65870, 65871, subd. (a).
[FN5] Gov. Code, 65871, subd. (b).
[FN6] See 15:43 (dedication), 26:32 (in
general; duty to maintain).
[FN7] Gov. Code, 65870, 65871, subd. (a).
But see, 30:26 (inverse condemnation;
required relationship between government
action and impact on owner's proposed use).
[FN8] Gov. Code, 65871, subd. (c), 65873.
[FN9] Gov. Code, 65873.
[FN10] Gov. Code, 65871, subd. (d).
[FN11] Gov. Code, 65870, 65874.
[FN12] Gov. Code, 65874, subd. (a).
[FN13] Gov. Code, 65874, subd. (b).
[FN14] Gov. Code, 65875.
MILCALRE 15:42

Kenneth Styles

15:43. Dedication
Easement may be created by dedication. An

easement can be created by either statutory or
common law dedication.[FN1]
Statutory dedication. A statutory dedication is
accomplished by recording a subdivision map
pursuant to the provisions of the Subdivision
Map Act.[FN2] As a general rule, on
recordation of a subdivision map the areas
designated as streets that are dedicated to the
public create a public easement in the specified
areas, and the fee title to the underlying land
remains with the adjacent property owners to
the center of the street.[FN3]
Any conveyance that describes a lot by a lot
and block description in reference to the map
conveys title to the center of the adjacent street,
subject to the public easement.[FN4] On an
abandonment of the street, the area set aside for
the street remains with the adjacent property
owners, one-half to each, free and clear of the
public use.[FN5] On an abandonment of the
public easement, any private easements that
may have been created in the street will
remain.[FN6]
Common law dedication. A common law
dedication may be accomplished in any manner
in which a property owner evidences an
intention to offer his or her property for a
public use by his or her acts or conduct, and the
public evidences an intention to accept the
offer.[FN7] Use of the property by the public
may be sufficient, by itself, to indicate both the
property owner's intention to dedicate his or
her property and the public's acceptance of the
offer.[FN8] Also, a sale of lots by reference to
a recorded or unrecorded map may be
sufficient to accomplish a dedication of the
streets and roads shown on the map to the
public.[FN9]
[FN1] See 26:3 to 26:21 (common law

dedication), 26:22 to 26:25 (statutory
dedication).
[FN2] See 25:216 (subdivisions; offers for
dedication to public use), 26:23 (offer of
statutory dedication).
[FN3] See 15:80 to 15:81 (abandonment of
public easements; effect on abutting owners),
25:216 (offers of dedication to public use).
[FN4] See 8:45 (deeds, property conveyed, in
general).
[FN5] See 15:80 (abandonment of public
easements), 15:81 (effect on the rights of
abutting property owners).
[FN6] See 15:69 (private easement in a
public street (abutter's rights)), 15:81 (effect
on the rights of abutting property owners).
[FN7] See 26:3 to 26:21 (common law
dedication).
[FN8] See 26:10 (offer implied from public
use), 26:15 (adverse possession and
prescription compared), 26:17 (procedures to
prevent an implied dedication by public use),
26:21 (dedication; acceptance by public use).
[FN9] See 26:6 (dedication; sale by reference
to a recorded map), 26:7 (dedication; sale by
reference to an unrecorded map).
MILCALRE 15:43
Kenneth Styles

15:44. Condemnation
Easement acquired by condemnation. A

public authority can condemn either a fee title
or an easement for public purposes, such as a
street or highway.[FN1] The state usually
acquires a fee title for a highway,[FN2] but the
condemnor often only takes an easement.[FN3]
The general rules applicable to eminent domain
proceedings apply whether the condemnor
takes a fee title or merely an easement.[FN4]
Public condemnation of an easement. A
public agency can condemn a lessee's surface
rights without acquiring subsurface oil and gas
rights.[FN5] It also can acquire subsurface
sewer or other pipeline easements and
temporary rights to use the surface for
construction without taking the owner's fee
interest in the surface.[FN6] A condemnor can
acquire a right to move soil within a drainage
easement without taking the fee title,[FN7] or
the joint use of utility poles without taking the
full interest in the poles or the fee title to the
surface.[FN8] It can condemn the fee title
interest in the property without taking the
owner's right to use the land for wind-powered
turbines.[FN9]
Easement to serve landlocked parcel. When
the State Lands Commission holds public lands
that are landlocked without access, it can
acquire a right of way or easement across other
land as it deems necessary to provide
access.[FN10]
Also, when a public entity acquires public
property for public use, it may bring an action
to acquire additional property of another party,
such as an easement as reasonably necessary to
provide access or public utility service to the
remaining property not condemned. Thus, for
example, when a public entity acquires a
portion of property and the remaining portion
not acquired is landlocked, the public can
acquire an easement over other adjacent
property owned by a third person to provide
access and utility service to the portion of the
property not condemned.[FN11] The easement
may be acquired even though the public entity
is in the process of acquiring, but has not yet
acquired, the property by a condemnation that
caused the remaining parcel to be
landlocked.[FN12]
Inverse condemnation. A public agency may
be liable for a "taking" of an easement on
private property by inverse
condemnation.[FN13] The taking may
constitute either a temporary deprivation of the
use of the property or a permanent taking, and
it may constitute a total taking of the fee title or
merely the taking of an easement.[FN14]
Case Example: Through negligence an
irrigation district had caused flooding of the
land adjacent to the Salton Sea, and the court
held it was liable for damages for inverse
condemnation. However, the award was based
not on physical damage to the property, but for
a permanent taking of an easement for past and
future flooding. Therefore, the district received
an interest in the property and paid
compensation for an easement.[FN15]
Case Example: A public utility had a franchise
to maintain a water pipe in an alley that
separated two parcels of property. The
franchise expired and then the county
abandoned the alley, thus reverting the alley's
title to the property owner. The county did not
expressly reserve any easement to the utility,
nor did the utility request a preservation of any
easement. The owner brought an action to quiet
title to the easement claims of the utility.
The court acknowledged that the rights of the
utility had terminated and that it was a mere
trespasser, but it concluded that the owner
could not quiet title, but could only recover
damages for inverse condemnation. Whenever
a public utility subjects property to a public
use, even if done without a legal right, and
there is a reasonable necessity for maintaining
the use, the property owner cannot quiet title or
obtain an injunction, but may only recover
damages. The necessity required to invoke this
rule is not an absolute one. The public utility
can invoke this rule if the use is "reasonably
suitable" and useful, even if it has other
alternatives to serve the same purpose. In other
words, the test is the same as when a utility
determines to condemn an easement.[FN16]
Condemnation by private party. In some
cases, a private person may take private
property by condemnation in order to acquire
an easement for utility service to his or her
property. The easement is limited to use for
water, gas, electric, drainage, sewer, or
telephone service, and it is appurtenant to the
land of the condemning party.[FN17] In order
to acquire the easement, the condemning party
must prove that there is a "great necessity" for
the taking, that the location to be condemned
provides the most reasonable service to the
property and the least damage to the servient
tenement, and the hardship to the condemning
party "clearly outweighs" the hardship to the
owner of the servient tenement.[FN18]
This requirement of "great necessity" is a
stricter standard and more difficult to prove
than the usual standard for eminent domain by
a public agency of "public interest and
necessity." "Great necessity" will exist only
when a condemnation alternative is the sole
reasonably acceptable means of providing
utility service to a piece of property.[FN19]
Case Example: A developer proposed to
improve a hilly area. In order to satisfy the
city's environmental and development
standards, it was necessary to acquire an
easement across adjacent private land for sewer
and drainage. The owners of the property
intended to serve as the servient tenement
challenged the constitutional validity of private
condemnation. The court held that the
procedure was valid, but it is only available in
limited circumstances of "great necessity" for
limited purposes to provide utility service to
property that might otherwise be unusable.
Permitting beneficial use of property is a
"public use," and, therefore, the condemnation
power is not being used for private
purposes.[FN20]
Case Example: A pipeline company filed a
condemnation action against a railroad. The
railroad intended to construct a second track
within its right-of-way, and the pipeline
company filed suit to condemn a wider
easement around pipelines that were located
within the railroad's right-of-way. The court
affirmed a referee's determination that the
proposed easement was not located in the
manner "most compatible with the greatest
public good and the least private injury" as
required by Code Civ. Proc., 1240.030, subd.
(b). The referee concluded that the easement
would "substantially and materially affect [the
railroad's] efficient use of its proposed second
track." The court allowed the referee to
consider alternate locations for the
pipeline.[FN21]

fee simple), 15:18 ("reservation" of an
See also Condemnation of Easements, 22 Am.
Jur. Trials 743.
[FN2] Sts. & Hy. Code, 104.
[FN3] See, under former statute, McCarty v.
Southern Pac. Co., 148 Cal. 211, 214-216, 82
P. 615 (1905).
fee simple).
See Fear of powerline, gas or oil pipeline, or
related structure as element of damages in
easement condemnation proceeding, 23
A.L.R.4th 631.
[FN5] See 17:23 to 17:24 (subsurface rights
to minerals and oil and gas).
[FN6] Unocal California Pipeline Co. v.
Conway, 23 Cal. App. 4th 331, 334, 28 Cal.
Rptr. 2d 429 (2d Dist. 1994); County
Sanitation Dist. v. Watson Land Co., 17 Cal.
App. 4th 1268, 1273, 22 Cal. Rptr. 2d 117 (2d
Dist. 1993), as modified, (Aug. 12, 1993).
[FN7] Sacramento etc. Drainage Dist. v.
Truslow, 125 Cal. App. 2d 478, 484, 270 P.2d
928 (3d Dist. 1954).
[FN8] Sacramento Municipal Utility Dist. v.
Pacific Gas & Elec. Co., 72 Cal. App. 2d 638,
655-656, 165 P.2d 741 (3d Dist. 1946).
[FN9] Contra Costa Water Dist. v. Vaquero
Farms, Inc., 58 Cal. App. 4th 883, 68 Cal. Rptr.
2d 272 (1st Dist. 1997).
[FN10] Pub. Resources Code, 6210.9.
[FN11] Code Civ. Proc., 1240.350, subd. (a).
[FN12] County of Fresno v. Shelton, 66 Cal.
Dist. 1998), as modified, (Sept. 22, 1998).
[FN13] See 30:1 to 30:4 (inverse
condemnation, introduction).
[FN14] See 30:1 to 30:16 (inverse
condemnation; introduction; physical invasion
of or interference with property rights).
[FN15] Salton Bay Marina, Inc. v. Imperial
Irrigation Dist., 172 Cal. App. 3d 914, 962-
964, 218 Cal. Rptr. 839 (4th Dist. 1985).
[FN16] Kachadoorian v. Calwa County Water
Dist., 96 Cal. App. 3d 741, 747-750, 158 Cal.
Rptr. 223 (5th Dist. 1979).
[FN17] Civ. Code, 1001, subd. (c).
[FN18] Civ. Code, 1001, subd. (c). See Code
Civ. Proc., 1245.325.
[FN19] Linggi v. Garovotti, 45 Cal. 2d 20, 26,
286 P.2d 15 (1955) (private owner condemning
a sewer easement across neighbor's property to
connect his home with public sewer; demurrer
sustained, but reversed on appeal); L & M
Professional Consultants, Inc. v. Ferreira, 146
Cal. App. 3d 1038, 1049-1051, 194 Cal. Rptr.
695 (4th Dist. 1983); People v. Oken, 159 Cal.
App. 2d 456, 460, 324 P.2d 58 (2d Dist. 1958).
But see Yeshiva Torath Emeth Academy v.
University of Southern Cal., 208 Cal. App. 2d
618, 619, 25 Cal. Rptr. 422 (2d Dist. 1962);
City of Sierra Madre v. Superior Court In and
For Los Angeles County, 191 Cal. App. 2d
587, 590, 12 Cal. Rptr. 836 (2d Dist. 1961).
Also see 2 California Op. Att'y Gen. 415
(1943), A Right of Way Over Private Property
for Private Purposes Cannot be Acquired by
Eminent Domain.
[FN20] L & M Professional Consultants, Inc.
v. Ferreira, 146 Cal. App. 3d 1038, 1052, 194
Cal. Rptr. 695 (4th Dist. 1983).
[FN21] SFPP, L.P. v. Burlington Northern &
Santa Fe Ry. Co., 121 Cal. App. 4th 452, 17
Cal. Rptr. 3d 96, 34 Envtl. L. Rep. 20066 (5th
Dist. 2004).

MILCALRE 15:44
Kenneth Styles

15:45. Estoppel; executed oral conveyance;

irrevocable license
West's Key Number Digest, Easements 36, 61,

62
An easement may be created without a

writing. An easement is an interest in real
property within the statute of frauds, and
ordinarily it must be created and conveyed by
an instrument in writing.[FN1] However, the
courts have created easements by
estoppel[FN2] or on the basis of an executed
oral agreement,[FN3] without a written deed of
conveyance.
Executed oral conveyance. An oral
conveyance of an interest in real property is
effective and enforceable against the seller and
all of his or her successors who have notice of
the conveyance if the buyer enters into
possession, makes improvements, and the
contract is otherwise completely performed by
the buyer.[FN4]
A seller may agree orally that the buyer will
have an easement over the seller's property, but
he or she may fail to convey it expressly by the
deed. When the grantee uses and improves the
easement and performs the contract, there is an
effective and enforceable conveyance of an
easement pursuant to the executed oral
agreement.[FN5]
Estoppel. The decisions that have created an
easement based on estoppel involve varying
circumstances, but they all involve reliance by
the owner of the dominant tenement on the
representations and conduct of the owner of the
servient tenement of such a character that
equity establishes an easement in order to
prevent an injustice.[FN6]
A lot is sold by a description that indicates that
it is bordered by a certain named street, the
buyer naturally assumes that the street does in
fact border the land and that it can be used for
ingress and egress. If the street is owned by the
seller, the seller's acts in misleading the buyer
justify the establishment of an easement in the
named street as an appurtenance to the lot
acquired by the buyer.[FN7]
Estoppel on sale by reference to a map. A
subdivider or other seller may sell property by
reference to an unrecorded map that shows
streets providing access to the property.[FN8]
Although there may be nothing of record or in
the deed that indicates that there is an easement
in the street, the seller may be estopped from
denying that such an easement exists in favor
of the buyer's lot, because of the buyer's
reliance on the display of the map showing the
street, and the seller's representations that it can
be used by the buyer.[FN9]
Sale by reference to physical monuments. A
seller may place stakes in the ground indicating
the lot boundaries and the location of adjacent
streets, and the buyer is shown the physical
condition of the land with the express or
implied representation that the streets located
on the grounds will be easements available for
his or her use even though no map is shown to
the buyer. An easement may be created as if
the sale had been made in reference to a map
that had been shown to the buyer. The buyer
may receive a road easement along the route
physically indicated by the stakes.[FN10]
Easement by irrevocable license. A familiar
situation in which the court creates an
easement occurs when a licensee expends time
and money improving the licensed area under a
justifiable belief that the licensor will not
revoke the license. In such cases, the license
often is held to be irrevocable.[FN11]
Case Example: An owner intended to sell her
subdivided property, reserving to herself an
exclusive easement in an alley across the back
of the lots as access to property at the end of
the alley that was owned by her daughter. A
broker hired by the owner's husband to sell the
property represented to the buyers that they
would be able to use the alley in the rear of
their lots for ingress and egress. The court held
that the buyers had an easement in the alley.
"[W]here purchases are made on
representations by the seller that abutting
property owned by him will be maintained
either as a public street or private way for the
benefit of the purchaser, there is the expression
of an intended abandonment of the seller's
existing right that will support an estoppel if
the purchaser has relied on it."[FN12]
Case Example: A landowner subdivided her
property into seven lots. Six lots were for
residential use and were located with three lots
on each side of a private road. The lot at the
end of the road was zoned for commercial and
multiple use. The real-estate broker hired by
the owner to sell the six residential lots
represented to the buyers that their lot was part
of a six-lot subdivision and that the road
between the lots would be for the sole use of
the owners of the six lots. In the deeds, the
seller reserved a right of way across the six lots
"as an appurtenance to the remaining lots of the
grantor." The buyers were unaware that the
seller also owned the lot at the end of the road.
The buyers objected to the seller's use of the
road for the seventh lot, and the court sustained
their objections because of their reliance on the
broker's representations.[FN13]
Cases:
Estoppel on sale by reference to a map. The
case of Christian v. Flora, 164 Cal. App. 4th
539, 78 Cal. Rptr. 3d 892 (3d Dist. 2008),
principally involved termination of an initial
easement, and creation of a new easement, by
filing an amended parcel map pursuant to Gov.
Code, 66499.20. (See Miller & Starr,
15:75.) In addition, the court held that the
grantees relied on the grant of a roadway
easement from the subdivider based on a parcel
map that had been amended. Because the
parcel owners had purchased their properties in
reliance on the subdivider's representation that
they would have an easement, the successors
were estopped to deny the owners a roadway
easement.
[END OF SUPPLEMENT]
[FN1] See 1:65 (statute of frauds; provisions

applicable to real estate transactions), 15:13
(easements, description of methods of
creation).
[FN2] See 1:76 (statute of frauds; exception;
estoppel).
executed oral agreement).
[FN4] See 1:75 (statute of frauds; exception:
executed oral agreement), 15:2 (licenses
distinguished).
[FN5] Rubio Canon Land & Water Ass'n v.
Everett, 154 Cal. 29, 32-35, 96 P. 811 (1908);
Churchill v. Russell, 148 Cal. 1, 4, 82 P. 440
(1905); Blankenship v. Whaley, 124 Cal. 300,
304, 57 P. 79 (1899); Flickinger v. Shaw, 87
Cal. 126, 131-133, 25 P. 268 (1890); Rose v.
Peters, 59 Cal. App. 2d 833, 835, 139 P.2d 983
(1st Dist. 1943); Douglas v. Lewin, 131 Cal.
App. 159, 162, 20 P.2d 959 (1st Dist. 1933);
Wilkes v. Brady, 84 Cal. App. 365, 368, 258 P.
108 (3d Dist. 1927).
See Johnstone v. Bettencourt, 195 Cal. App. 2d
538, 540-542, 16 Cal. Rptr. 6 (3d Dist. 1961).
estoppel).
See Estoppel of one not a party to a transaction
involving real property by failure to disclose
his interest in the property, 50 A.L.R. 668.
[FN7] Civ. Code, 831, 1112; Code Civ.
Proc., 2077, subd. (4); Neff v. Ernst, 48 Cal.
2d 628, 635, 311 P.2d 849 (1957); Petitpierre
v. Maguire, 155 Cal. 242, 246, 100 P. 690
(1909); McCarthy Co. v. Moir, 12 Cal. App.
441, 444, 107 P. 628 (2d Dist. 1910).
See Conveyance of land as bounded by road,
street, or other way as giving grantee rights in
or to such way, 46 A.L.R.2d 461.
[FN8] See 15:26 (implied easements; sale by
reference to subdivision map).
[FN9] See 15:26 (implied easements; sale by
reference to subdivision map).
See Enforceability, by landowner, of
subdivision developer's oral promise to
construct or improve roads, 41 A.L.R.4th 573.
[FN10] Danielson v. Sykes, 157 Cal. 686, 690,
109 P. 87 (1910) (dicta); Prescott v. Edwards,
117 Cal. 298, 304, 49 P. 178 (1897); Currier v.
Howes, 103 Cal. 431, 435, 37 P. 521 (1894);
McCarthy Co. v. Moir, 12 Cal. App. 441, 444,
107 P. 628 (2d Dist. 1910).
[FN11] See 15:2 (licenses distinguished).
[FN12] Banning v. Kreiter, 153 Cal. 33, 36, 94
P. 246 (1908).
[FN13] Cline v. Haines, 192 Cal. App. 2d 560,
562, 13 Cal. Rptr. 797 (1st Dist. 1961).

MILCALRE 15:45

Kenneth Styles
15:46. Equitable easement; balancing of

hardships
Creation of easements in equity. Although
more recent court decisions have used the term
"equitable easement" to refer to the balancing
of hardships analysis, a number of cases have
used the term "equitable easement" to apply to
a judicially created or enforced covenant or
equitable servitude.[FN1]
Balancing of hardships. A court may create
an easement on equitable grounds even though
the user is not entitled to an easement on one of
the more traditional grounds.[FN2] When (1) a
party has used and improved an easement for a
long period of time with an innocent belief that
he or she had a right to use the easement, (2)
there would be irreparable harm if the party
could not continue to use the easement, and (3)
the servient tenement would suffer little harm
from the further use of the easement, a court
can exercise its equitable jurisdiction and issue
a permanent injunction against interference
with future use.[FN3]
Case Example: The user had used a road for
several years and had improved it, but he was
unable to establish a prescriptive easement.
The court borrowed the theory of the
"balancing of hardships" applicable to the
removal of encroachments[FN4] to justify a
permanent injunction in favor of the user of the
roadway against the owner of the burdened
property. The court found that (1) the use was
innocent, (2) the user would be irreparably
harmed without the use of the road, and (3)
there would be little harm suffered to the
property owner from the continued use of the
road. Based on these findings, the court granted
a permanent injunction preventing the servient
owner from interfering with the future use of
the easement.[FN5]
Comment: The decisions that refuse to require
the removal of an encroachment based on a
balancing of hardships are persuasive
precedent for the creation of an easement under
this equitable theory because, by not requiring
a removal, the court, in effect, confirms an
easement in favor of the encroaching property.
An irrevocable license is an appropriate
analogy.[FN6]
Case Example: The owner of an upper lot
installed an underground gravity sewer line
across the lower lot in order to connect the line
to the public sewer under the mistaken belief
that he had a legal right to install the line.
Twenty-five years later the lower lot was sold
at a tax sale, and when the owner commenced
construction of a home on the lot he discovered
the subsurface sewer pipe.
The court held that the upper lot owner had not
acquired a prescriptive easement because there
was no visible physical evidence of the sewer
pipe and because the lower owner had no
notice of the pipe. This same evidence would
establish that the owner of the lower lot was a
bona fide purchaser. However, the court found
that (1) the sewer line only interfered with the
construction of a driveway and retaining wall
on the lower lot, (2) the wall could be built
around the pipe with little additional cost, (3)
the upper owner acted innocently, and (4) the
sewer line was the only way of discharging
sewage from the upper lot. The court
confirmed an easement for the benefit of the
upper lot on the equitable theory of balancing
of hardships.[FN7]
The "relative hardship doctrine." If the
above factors are satisfied, the court, using its
equitable powers, may fashion a "protective
interest" that is akin to an easement or a
license, but in fact is an equitable interest that
may or may not run with the land.
Case Example: Plaintiffs owned their home in
Bel-Air since 1940. Defendants bought the
next door home in 1979. The property line
between their parcels was not well marked. In
the 1950s, the defendants predecessors had
installed a fence in the wrong location. After
decades of use, in 1997, the plaintiffs
commissioned a survey and discovered that the
defendants improvements encroached on their
property. The court of appeal affirmed the trial
courts holding that although equities existed
on both sides, it denied the plaintiffs requested
injunction and permitted the defendants
continued use of plaintiffs property. Though
the trial court called the interest an "easement,"
the court of appeal termed it a "protective
interest" that would terminate when the
defendants "either transferred the property or
no longer lived there."[FN8]
Cases:
Balancing of hardships. Comment: Some
recent court decisions have used the term
"equitable easement" to identify the remedy
awarded to an encroaching party when apply
the "relative hardship" doctrine, citing for
support the holding in Hirshfield v. Schwartz,
(2d Dist. 2001). However, that court did not
use the specific term "equitable easement."
Indeed, the Hirshfield court appeared
uncomfortable with the trial courts use of the
word easement to describe the equitable
interest fashioned by the court to address an
encroachment, and instead referred to the
remedy awarded as an equitable protective
interest (91 Cal. App. 4th at 767). Identifying
the equitable interest created as an easement
raises a number of issues that may create more
confusion than claritye.g., is the easement
appurtenant to the property or en gross, or is
the interest more akin to a time-limited license.
The unfortunate use of the term equitable
easement most likely relates back to the case
of [Christensen v. Tucker, 114 Cal. App. 2d
554, 563, 250 P.2d 660 (1st Dist. 1952), in
which the court acknowledged the relative
hardship doctrine as applied to an
encroachment. In addressing the appropriate
equitable remedy, the court noted that the grant
of as easement, as opposed to fee title, would
be an appropriate remedy, but also held that
[u]nder any theory, if defendants should ever
abandon the encroachments, the easement
should terminate. (114 Cal. App. 2d at 563).
The equitable remedy described by the
Christensen court was not an easement, but
was more akin to a license. The Hirshfield
court properly identified the equitable remedy
created under a balancing of hardships analysis
(involving encroachments) as an equitable
protective interest, not an equitable
easement.
[END OF SUPPLEMENT]
[FN1] See, e.g., B. Development, Inc. v. Smith,

215 Cal. App. 3d 1142, 1146, 264 Cal. Rptr. 55
(4th Dist. 1989); Arrowhead Mut. Service Co.
v. Faust, 260 Cal. App. 2d 567, 578-79, 67 Cal.
Rptr. 325 (4th Dist. 1968); Nadell & Co. v.
Grasso, 175 Cal. App. 2d 420, 426-27, 346
P.2d 505 (2d Dist. 1959) ("Such servitudes are
frequently spoken of as "equitable
easements".")
App. 3d 228, 237-239, 251 Cal. Rptr. 49 (2d
Dist. 1988), opinion modified, (Sept. 27, 1988)
and opinion modified, (Sept. 29, 1988);
Donnell v. Bisso Brothers, 10 Cal. App. 3d 38,
44-46, 88 Cal. Rptr. 645 (1st Dist. 1970);
Miller v. Johnston, 270 Cal. App. 2d 289, 306,
75 Cal. Rptr. 699 (1st Dist. 1969).
[FN3] Hirshfield v. Schwartz, 91 Cal. App. 4th
749, 110 Cal. Rptr. 2d 861 (2d Dist. 2001);
Miller v. Johnston, 270 Cal. App. 2d 289, 303-
308, 75 Cal. Rptr. 699 (1st Dist. 1969).
See 14:13 (balancing of hardships) and
15:41 (necessity for payment of
compensation).
[FN4] See 14:11 (encroachments, damages).
[FN5] Miller v. Johnston, 270 Cal. App. 2d
289, 303-308, 75 Cal. Rptr. 699 (1st Dist.
1969).
[FN6] See 15:2 (licenses distinguished) and
Christensen v. Tucker, 114 Cal. App. 2d 554,
564, 250 P.2d 660 (1st Dist. 1952).
App. 3d 228, 237-239, 251 Cal. Rptr. 49 (2d
Dist. 1988), opinion modified, (Sept. 27, 1988)
and opinion modified, (Sept. 29, 1988).
[FN8] Hirshfield v. Schwartz, 91 Cal. App. 4th
749, 110 Cal. Rptr. 2d 861 (2d Dist. 2001).

MILCALRE 15:46

Kenneth Styles

15:47. Partition
West's Key Number Digest, Adverse

Possession 75
West's Key Number Digest, Common Lands 14
West's Key Number Digest, Partition 12
Decree of partition.[FN1] In a partition

action, it often is necessary for the court or
referee to provide for streets or other road
access to the partitioned parcels. The referee
has the jurisdiction to provide for a "way, road,
or street" across one partitioned property to
benefit another partitioned parcel whenever it
is advantageous to the interested parties.[FN2]
The roads or streets may be designated as
either private easements or public streets.[FN3]
The easement is appurtenant to the partitioned
parcel. The referee cannot create an easement
across jointly held property to benefit property
that was not held in joint ownership.[FN4]
Effect of recordation of the partition decree.
When the partition decree or a map of the
partitioned property is recorded, the easements
become established as to successors of the
partitioned property.[FN5] If the map or decree
only refers to public "streets," there are no
private easements in the streets, only those
available to the public in general.[FN6] When
sufficient roads have been set aside by the
referee to accommodate both public and
private needs, the referee will recommend
closure of other roads.[FN7]
Creation by implication. Where property is
partitioned and at the time of the partition a
road is used across one portion of the property
for the benefit of another portion, an easement
may be created by implication for the
continued use over the burdened parcel without
specific reference in the partition decree.[FN8]
[FN1] See 12:14 to 12:21 (partition;

procedure and defenses).
[FN2] See Mesmer v. Uharriet, 174 Cal. 110,
113-117, 162 P. 104 (1916).
See 15:52 (location; easements by necessity).
[FN3] Code Civ. Proc., 873.080. Cheda v.
Bodkin, 173 Cal. 7, 13, 158 P. 1025 (1916).
In Porto v. Vosti, 136 Cal. App. 2d 395, 397,
288 P.2d 618 (1st Dist. 1955), partition was
denied because the easement was on the
property line and, in effect, would be destroyed
by the partition.
See 12:16 (partition by a physical division of
the property).
[FN4] Worcester v. Worcester, 246 Cal. App.
2d 56, 59, 54 Cal. Rptr. 436 (2d Dist. 1966).
[FN5] See 12:19 (decree of partition).
[FN6] Loma Vista Inv., Inc. v. Roman Catholic
Archbishop of Los Angeles, 158 Cal. App. 2d
58, 63, 322 P.2d 35 (2d Dist. 1958).
[FN7] Code Civ. Proc., 873.080.
[FN8] See 15:19 to 15:26 (easements by
implied grant or reservation).

MILCALRE 15:47
Kenneth Styles
D. Location and Use of Easements

1. Location of Easements (Other than Floating
Easements)
15:49. Proving location and changing

location

49
The owner of the easement has burden of

proving location. The person who alleges the
existence of an easement has the burden of
proving its exact location.[FN1]
Location cannot be changed without
agreement. Once the location of an easement
has been established, regardless of how it was
created, neither the owner of the easement nor
the court[FN2] can make any material change
in its location without the consent of the owner
of the servient tenement.[FN3] A change is
prohibited even though the proposed new
location would be more beneficial to the
servient tenement owner and would impose a
lesser burden on the servient tenement.[FN4]
Similarly, the owner of a servient tenement
cannot compel the owner of the easement to
change its location even though the new
location is equally convenient.[FN5]
Case Example: A ditch had been used for
several years to run water from a stream to the
nonriparian land of the easement owner. A
flood destroyed the ditch and changed the
course of the stream so that the only way the
ditch could be reconstructed to allow water to
be taken from the stream was by changing the
location of the ditch by 25 feet. Although the
new location caused very little harm to the
owner of the servient tenement, the court
prohibited the reconstruction of the ditch at any
location other than where it had existed before
the flood.[FN6]
Case Example: The owner of a dam was
prevented from changing its location even
though the location of the stream had changed
and a dam at the old location, removed from
the stream, was useless.[FN7]
Change of location by agreement. The parties
may agree to change the location of an
easement, and on an agreement, the same rights
and duties that attached to the original location
apply to the easement at its new location.[FN8]
If the location is changed without an express
agreement, and there is no objection to the
relocation, it may be implied that the parties
agreed to the change by their
acquiescence.[FN9]
Change of location or increase in width by
prescription. The location of an easement
created by an express grant can be altered, or
its size or use enlarged, by prescription.[FN10]
For example, if a roadway easement is properly
granted to the owner of the dominant tenement,
but the route actually used lies partly outside
the granted location, when the use continues
for the required period of time, an easement
can be acquired by prescription over the route
actually used outside of the area
conveyed.[FN11] Because an easement created
by grant is not lost by nonuse,[FN12] whether
the user has both the granted easement and the
prescriptive easement or only the prescriptive
easement depends on whether there is evidence
of an intent to abandon the unused portion of
the granted easement.[FN13]
[FN1] Leverone v. Weakley, 155 Cal. 395,

398, 101 P. 304 (1909).
In Tucker v. Watkins, 251 Cal. App. 2d 327,
332, 59 Cal. Rptr. 453 (1st Dist. 1967), the
court held that the owners of the easement
were entitled to an injunction against the
interference with a public road (the parties
having admitted that it existed), but they had an
"almost insurmountable" task on the retrial to
establish its exact location because there was
no recorded document that prescribed its route.
[FN2] Edgar v. Pensinger, 73 Cal. App. 2d
405, 414, 166 P.2d 354 (4th Dist. 1946).
[FN3] Youngstown Steel Products Co. of Cal.
v. City of Los Angeles, 38 Cal. 2d 407, 410,
240 P.2d 977 (1952) (dicta); Winslow v. City
of Vallejo, 148 Cal. 723, 726, 84 P. 191
(1906); Joseph v. Ager, 108 Cal. 517, 520, 41
P. 422 (1895); Haley v. Los Angeles County
Flood Control Dist., 172 Cal. App. 2d 285,
289, 342 P.2d 476 (2d Dist. 1959) (dictum);
Brown v. Ratliff, 21 Cal. App. 282, 290, 131 P.
769 (3d Dist. 1913).
See Relocation of easements (other than those
originally arising by necessity); rights as
between private parties, 80 A.L.R.2d 743.
[FN4] White v. Walsh, 105 Cal. App. 2d 828,
831, 234 P.2d 276 (3d Dist. 1951).
See Oliver v. Agasse, 132 Cal. 297, 298-300,
64 P. 401 (1901); Allen v. San Jose Land &
Water Co., 92 Cal. 138, 139-142, 28 P. 215
(1891).
See 15:46 (creation of an easement by
balancing of hardship).
240 P.2d 977 (1952); Hannah v. Pogue, 23 Cal.
2d 849, 855, 147 P.2d 572 (1944); Tarr v.
Watkins, 180 Cal. App. 2d 362, 365, 4 Cal.
Rptr. 293 (2d Dist. 1960).
See Allen v. San Jose Land & Water Co., 92
Cal. 138, 140, 28 P. 215 (1891); Brown v.
Ratliff, 21 Cal. App. 282, 294, 131 P. 769 (3d
Dist. 1913).
[FN6] Felsenthal v. Warring, 40 Cal. App. 119,
125, 180 P. 67 (2d Dist. 1919).
[FN7] Hannah v. Pogue, 23 Cal. 2d 849, 855,
147 P.2d 572 (1944).
240 P.2d 977 (1952); Wallace Ranch Water
Co. v. Foothill Ditch Co., 5 Cal. 2d 103, 116,
53 P.2d 929 (1935); Vargas v. Maderos, 191
Cal. 1, 3, 214 P. 849 (1923); Goff v. Shaw, 223
Dist. 1963); Serrano v. Grissom, 213 Cal. App.
2d 300, 304, 28 Cal. Rptr. 579 (5th Dist. 1963);
Zunino v. Gabriel, 182 Cal. App. 2d 613, 618,
6 Cal. Rptr. 514, 80 A.L.R.2d 1088 (1st Dist.
1960); Tarr v. Watkins, 180 Cal. App. 2d 362,
365, 4 Cal. Rptr. 293 (2d Dist. 1960); San
Joaquin & Kings River Canal & Irrigation Co.
v. Egenhoff, 61 Cal. App. 2d 82, 86, 141 P.2d
939 (1st Dist. 1943).
See Relocation of easements (other than those
originally arising by necessity); rights as
between private parties, 80 A.L.R.2d 743.
[FN9] McCarty v. Walton, 212 Cal. App. 2d
39, 46, 27 Cal. Rptr. 792 (3d Dist. 1963);
Johnstone v. Bettencourt, 195 Cal. App. 2d
538, 542, 16 Cal. Rptr. 6 (3d Dist. 1961).
See 15:45 (easement by estoppel; executed
oral conveyance).
P. 314 (1925); Kerr Land & Timber Co. v.
Emmerson, 233 Cal. App. 2d 200, 228, 43 Cal.
Rptr. 333 (1st Dist. 1965); Ocean Shore R. Co.
v. Doelger, 127 Cal. App. 2d 392, 400, 274
P.2d 23 (1st Dist. 1954).
See 15:33 to 15:37 (easement by
prescription; requirements).
See Enlargement of easement by use for
purpose or in a manner other than that
specified in the grant, 110 A.L.R. 915.
[FN11] Robas v. Allison, 146 Cal. App. 2d
716, 720, 304 P.2d 163 (4th Dist. 1956); Lord
v. Sanchez, 136 Cal. App. 2d 704, 708, 289
P.2d 41 (1st Dist. 1955).
See 15:34 to 15:35 (prescription; open,
notorious, hostile, and adverse use).
[FN12] See 15:78 (termination of an
easement by nonuse).
[FN13] See 15:79 (abandonment of private
easements).
MILCALRE 15:49
Kenneth Styles

Easements)
15:50. Location of floating easements

49
Express grant without identification of
location. In contrast to a grant of fee
title,[FN1] a grant or reservation of an
easement is enforceable even though the
instrument creating it fails to specify a definite
location or route.[FN2] The court will interpret
the intentions of the parties by reviewing the
other terms of the instrument and all of the
circumstances surrounding the
transaction.[FN3]
Doctrine of "floating" easements. A "floating
easement" is "an easement for right-of-way . . .
which, when created, is not limited to any
specific area on the servient tenement."[FN4]
When an instrument conveys or reserves an
unlocated, "floating" easement, it is presumed
that the parties intended to establish a
reasonably suitable and convenient route in
view of the anticipated needs of both
parties.[FN5] Thus, the right cannot be
exercised over the entire servient
tenement,[FN6] but until the easement is
located, it is a cloud on the title to all of the
property.
Case Example: A reservation of "a right-of-
way for all roads, pipe lines, water conduits,
power lines, telephone and telegraph lines now
on said property or that may hereafter be
required" by the grantors was held to be a valid
reservation of an easement.[FN7] In contrast, if
a fee title had been reserved, the reservation of
an unlocated parcel or strip would be void for
uncertainty.[FN8]
Failure to specify the width of a road. When
an instrument fails to specify the width of a
right-of-way easement, it is presumed that the
parties intended that it be as wide as is suitable
and convenient for the purposes
intended.[FN9]
The "floating" easement is located by
selection. The owner of the servient tenement
has the first right to locate the easement along a
route that is reasonably convenient for the
needs of the easement owner. If the servient
tenant owner fails to make the selection within
a reasonable time, the owner of the easement
has a right to select a route that does not
unreasonably interfere with the enjoyment of
the servient tenement. If the parties cannot
agree on a location, either party may apply to a
court of equity to establish a reasonable route
in consideration of the rights and needs of both
parties.[FN10]
A suitable route for the easement should be
selected within a reasonable time.[FN11]
However, if no route is selected, the easement
is still enforceable because, in the absence of
definite evidence of an intention to abandon, an
easement created by an express grant or
reservation is not lost merely because of
nonuse.[FN12]
Location by use. The selection of an
easement's location need not be made in any
formal manner. The use of the easement in a
particular course without objection by the
owner of the servient tenement establishes the
easement along the route used.[FN13]
Thereafter, the easement's location cannot be
changed without the consent of both
parties.[FN14]
Application of the doctrine to easements
other than roadways. The floating easement
doctrine generally has been applied to rights of
way where the nature of the burden can be
defined by custom from the nature of the
easement. However, the doctrine is also
applicable to other types of unlocated
easements where the location can be
established by reasonable use.[FN15]
Case Example: A contract between a city and
a football team provided for use of parking
area of a certain number of spaces during the
season. The contract provided an inadequate
description of the location of the parking
spaces. The court found that the contract
reserved to the city all rights other than that
granted to the team, and the team received
either an easement or an irrevocable license. It
held that the location of the easement for the
parking spaces could be determined by the past
use, foreseeable use, and subsequent
acquiescence in the use of the parking
area.[FN16]
[FN1] See 8:45 to 8:51.1 (deeds; property

conveyed).
[FN2] Coon v. Sonoma Magnesite Co., 182
Cal. 597, 599, 189 P. 271 (1920); Colvin v.
Southern Cal. Edison Co., 194 Cal. App. 3d
1306, 1312, 240 Cal. Rptr. 142 (2d Dist. 1987)
(overruled on other grounds by, Ornelas v.
Randolph, 4 Cal. 4th 1095, 17 Cal. Rptr. 2d
594, 847 P.2d 560 (1993)); Maywood Mut.
Water Co. No. 2 v. City of Maywood, 23 Cal.
1972).
See also 1:20, 1:23 (requirement of
certainty of terms of agreement; description of
the property), 1:24 (purchase of a portion of a
larger parcel), 10:17 (deeds of trust;
description of the premises), 10:119 to
10:122 (deeds of trust; partial releases),
15:14 (express grant or reservation,
requirements for creation, security for liens).
[FN3] See 15:16 (express grant or
reservation, rules of construction).
Also see Location of easement of way created
by grant which does not specify location, 24
A.L.R.4th 1053.
[FN4] City of Los Angeles v. Howard, 244
Dist. 1966) (power line easement created by
express reservation).
See 65 Butterfield v. Chicago Title Ins. Co., 70
Cal. App. 4th 1047, 83 Cal. Rptr. 2d 40 (4th
Dist. 1999), as modified, (Mar. 19, 1999).
[FN5] Colvin v. Southern Cal. Edison Co., 194
Cal. App. 3d 1306, 1312, 240 Cal. Rptr. 142
(2d Dist. 1987) (overruled on other grounds by,
Ornelas v. Randolph, 4 Cal. 4th 1095, 17 Cal.
Rptr. 2d 594, 847 P.2d 560 (1993)) (power line
easement).
240 P.2d 977 (1952); Maywood Mut. Water
Co. No. 2 v. City of Maywood, 23 Cal. App.
3d 266, 270, 100 Cal. Rptr. 174 (2d Dist.
1972); Haley v. Los Angeles County Flood
Control Dist., 172 Cal. App. 2d 285, 289, 342
P.2d 476 (2d Dist. 1959) (dictum); Parker v.
Swett, 40 Cal. App. 68, 72, 180 P. 351 (1st
Dist. 1919).
See Location of easement of way created by
grant which does not specify location, 24
A.L.R.4th 1053.
[FN7] Collier v. Oelke, 202 Cal. App. 2d 843,
847, 21 Cal. Rptr. 140 (4th Dist. 1962).
[FN8] See 1:23 (contracts; description of the
property), 8:45 to 8:51 (deeds; property
conveyed).
See also 1:20, 1:23 (requirement of
certainty of terms of agreement; description of
the property), 1:24 (purchase of a portion of a
larger parcel), 10:17 (deeds of trust;
description of the premises), 10:119 to
10:122 (deeds of trust; partial releases),
15:14 (express grant or reservation,
requirements for creation, security for liens).
[FN9] See 15:59 (use of a road or other
surface easement).
[FN10] Ballard v. Titus, 157 Cal. 673, 683-
685, 110 P. 118 (1910); Parker v. Swett, 40
Cal. App. 68, 72, 180 P. 351 (1st Dist. 1919);
Brown v. Ratliff, 21 Cal. App. 282, 289, 131 P.
769 (3d Dist. 1913); Davidson v. Ellis, 9 Cal.
App. 145, 147, 98 P. 254 (2d Dist. 1908).
See Coon v. Sonoma Magnesite Co., 182 Cal.
597, 599, 189 P. 271 (1920).
[FN11] Haley v. Los Angeles County Flood
Control Dist., 172 Cal. App. 2d 285, 291, 342
P.2d 476 (2d Dist. 1959) (not located for 25
years); Parker v. Swett, 40 Cal. App. 68, 74,
180 P. 351 (1st Dist. 1919) (not located for 25
years); Davidson v. Ellis, 9 Cal. App. 145, 147,
98 P. 254 (2d Dist. 1908).
[FN12] See 15:78 (termination of an
easement by nonuse).
240 P.2d 977 (1952); Schmidt v. Klotz, 130
Cal. 223, 224, 62 P. 470 (1900); Colvin v.
Southern Cal. Edison Co., 194 Cal. App. 3d
1306, 1312, 240 Cal. Rptr. 142 (2d Dist. 1987)
(overruled on other grounds by, Ornelas v.
Randolph, 4 Cal. 4th 1095, 17 Cal. Rptr. 2d
594, 847 P.2d 560 (1993)); Maywood Mut.
Water Co. No. 2 v. City of Maywood, 23 Cal.
1972); City of Los Angeles v. Howard, 244
Dist. 1966); Haley v. Los Angeles County
Flood Control Dist., 172 Cal. App. 2d 285,
289, 342 P.2d 476 (2d Dist. 1959) (dicta); San
Joaquin & Kings River Canal & Irrigation Co.
v. Egenhoff, 61 Cal. App. 2d 82, 86, 141 P.2d
939 (1st Dist. 1943); Snodgrass v. Crane, 57
Cal. App. 2d 565, 567, 134 P.2d 862 (3d Dist.
1943).
[FN14] See 15:49 (location, generally;
change of location).
Anaheim, 25 Cal. App. 4th 11, 40-41, 31 Cal.
Rptr. 2d 378 (4th Dist. 1994).
Anaheim, 25 Cal. App. 4th 11, 40-41, 31 Cal.
Rptr. 2d 378 (4th Dist. 1994).

MILCALRE 15:50
Kenneth Styles

Easements)

15:51. Location of implied easements

49
Rules applicable to implied easements. The

general rules determining the location of an
easement apply equally to implied
easements.[FN1] In addition, some special
rules apply to implied easements because of the
method of their creation.
Location based on prior use. The Civil Code
provides that an easement created by
implication entitles its owner to use the
servient tenement "in the same manner and to
the same extent as such property was obviously
and permanently used" by the grantor at the
time of the conveyance.[FN2] Therefore,
unless there are additional circumstances that
indicate that the parties intended a different
location, the statute limits the location of an
implied easement to the area of the servient
tenement used by the grantor prior to the
conveyance.
Case Example: The owner of a 320-acre
parcel of land divided it into parcels. At the
time of the conveyance of one parcel to the
grantee, a single-lane, rutted dirt road across
the grantor's land was used as an access to the
parcel granted. Although there was no mention
of an easement in the deed, because this road
had existed at the time of the conveyance, had
been discussed by the parties prior to the
conveyance, and was the only access to the
property conveyed to the grantee, the court
found that an implied easement was conveyed
to the grantee.
Thereafter, the servient tenement was
conveyed to a successor without reference to
the easement. However, because it was
physically apparent at the time of the
conveyance to the successor, the court
concluded that she received her title subject to
the easement.[FN3] At the time of the
conveyance to the grantee there was no
contemplation of future development of the
grantee's property, and, therefore, the width of
the easement was limited to its prior usethe
width of a single vehicle. The fact that a 60-
foot easement had been referenced in a deed of
trust to a third party was irrelevant to the
determination of the width of the easement
created by implication.[FN4]
Modified by anticipated future use. Despite
the clear limitation of the statute, the extent to
which an easement can be used by its owner
depends not only on the prior use by the
grantor but also on such additional future uses
as may have been anticipated by the parties at
the time of the transfer.[FN5]
[FN1] See 15:49 (location, generally; change

of location).
See Laux v. Freed, 53 Cal. 2d 512, 520, 2 Cal.
Rptr. 265, 348 P.2d 873 (1960); Silveira v.
Smith, 198 Cal. 510, 517, 246 P. 58 (1926);
Parks v. Gates, 186 Cal. 151, 156, 199 P. 40
(1921); Quinlan v. Noble, 75 Cal. 250, 252, 17
P. 69 (1888); Nay v. Bernard, 40 Cal. App.
364, 368, 180 P. 827 (1st Dist. 1919).
See also 15:25 (lease of part of property).
[FN3] See 11:86 (implied notice of nature
and extent of use of an easement).
[FN4] Kytasty v. Godwin, 102 Cal. App. 3d
762, 769-773, 162 Cal. Rptr. 556 (4th Dist.
1980).
[FN5] See 15:55 (increased or changed use),
15:57 (implied easements).

MILCALRE 15:51
Kenneth Styles

Easements)
15:52. Location of easements by necessity

West's Key Number Digest, Easements 48(4)
Location limited to grantor's property. An

easement created because of necessity can be
located only on property owned by the grantor
at the time of the conveyance.[FN1] It cannot
be imposed on land in which the grantor owns
only an undivided joint interest with
others,[FN2] or on property that he or she
subsequently acquires.[FN3]
Location depends on balancing of interests.
An easement created by necessity will be
located on a route suitable to the needs of the
dominant tenement and convenient to the
servient tenement. In this respect, the rules for
selecting the route of an easement by necessity
are the same as those used for locating an
unlocated "floating" easement created by
express grant or reservation.[FN4]
The owner of the servient tenement has the
first opportunity to select its location. If he or
she fails to do so within a reasonable time, the
owner of the dominant tenement may select the
easements location.[FN5] In either case, the
selection must be made with due regard for the
rights, needs, and conveniences of both parties.
If there is a disagreement over the location of
the easement, either party can seek a judicial
determination of its location.[FN6]
Case Example: A large parcel of property
owned by several cotenants was partitioned
into several parts, each of which were then
owned separately by one of the cotenants.
However, as a result of the partition one of the
parcels was landlocked.[FN7] The court held
that under the circumstances it would be unfair
to permit the owner of the landlocked parcel to
select a route across one of the partitioned
pieces because it would result in one of the
cotenants bearing the burden of the easement,
which should be shared equally by all of them.
The court concluded that it would select the
location of the easement and require the other
cotenants to pay compensation to the owner of
the burdened parcel.[FN8]
Selection by use. There is no requirement that
the parties select the easement's location in a
formal manner. Once the easement is used
without objection it is presumed that the parties
have agreed to its location over the route
used.[FN9]
Use limited to necessity. An easement that is
implied because of necessity may be used only
to satisfy the need for the required ingress and
egress and cannot be used for purposes beyond
the original necessity.[FN10] The easement's
width is limited to the use required by the
necessity, whether for pedestrians or for
vehicles,[FN11] and it terminates when there is
no longer necessity.[FN12]

162 P. 104 (1916); Rogelmair v. City of Los
Angeles, 137 Cal. App. 125, 129, 29 P.2d 880
(1st Dist. 1934).
See 15:27 to 15:28 (requirements for
easements of necessity).
[FN2] McDonald v. McElroy, 60 Cal. 484,
492, 1882 WL 1777 (1882); Gray v. Magee,
108 Cal. App. 570, 584, 292 P. 157 (4th Dist.
1930).
[FN3] Parker v. Swett, 40 Cal. App. 68, 71,
180 P. 351 (1st Dist. 1919).
[FN4] See 15:50 (floating easements).
See Locating easement of way created by
necessity, 36 A.L.R.4th 769.
879 (1886).
162 P. 104 (1916) (dicta); Kripp v. Curtis, 71
Cal. 62, 66, 11 P. 879 (1886).
[FN7] See 15:47 (creation of easements on
partition).
[FN8] Mesmer v. Uharriet, 174 Cal. 110, 113-
117, 162 P. 104 (1916).
879 (1886).
[FN10] Pipkin v. Der Torosian, 35 Cal. App.
3d 722, 730, 111 Cal. Rptr. 46 (5th Dist. 1973).
[FN11] Horowitz v. Noble, 79 Cal. App. 3d
120, 129, 144 Cal. Rptr. 710 (1st Dist. 1978);
Tarr v. Watkins, 180 Cal. App. 2d 362, 366, 4
Cal. Rptr. 293 (2d Dist. 1960).
[FN12] See 15:28 (strict necessity required).
MILCALRE 15:52
Kenneth Styles

Easements)
15:53. Location of easements by

prescription or implied dedication

48
Location based on prior use. A prescriptive

easement can be acquired only by consistent
and constant use for the prescriptive period
without material or substantial deviation in the
location,[FN1] but slight deviations in the
customary route do not defeat the acquisition
of the easement.[FN2] Therefore, once a user
has acquired a prescriptive right, the location
of the easement is determined by the location
of the use during the prescriptive period.[FN3]
A minor change of location may be
permitted. Although some decisions have
prohibited a change in location of a
prescriptive easement,[FN4] other cases have
permitted a minor alteration if it does not result
in a material or substantial increase in the
burden imposed on the servient
tenement.[FN5]
Width is based on prior use. When an
easement for pedestrian or vehicle traffic has
been acquired by prescription, the width of the
easement is determined by the width of the
area used during the prescriptive period.[FN6]
A person who uses a 15-foot-wide strip of land
for the prescriptive period under an invalid
deed describing a 60-foot-wide easement, only
acquires a prescriptive easement 15 feet in
width.[FN7]
Width may include additional area for
convenience. There is some authority that the
width of the easement may exceed the width
used during the prescriptive period where it is
convenient for use and not an additional burden
on the servient tenement.[FN8]
Case Example: The claimant used a 10-foot-
wide road for the prescriptive period. The road
had five-foot unpaved shoulders on each side
and in order for two vehicles to pass, one car
had to pull over on the shoulder. The court
confirmed a 20-foot-wide prescriptive
easement.[FN9]
Case Example: The court confirmed a 20-foot
prescriptive road easement based on the
average width of the prior use.[FN10]
Color of title does not enlarge the easement.
The doctrine of color of title applicable in
cases of adverse possession, which permits a
person claiming an adverse title under a written
instrument to acquire title to the full property
described in the instrument, even though only a
portion has been occupied by the
claimant,[FN11] does not apply to prescriptive
easements.[FN12]
Application to implied dedication. An
easement acquired by common law dedication
is established by public use in the same manner
as an easement by prescription.[FN13] The
same rules limiting the location of a
prescriptive easement apply to an easement
created by implied dedication. The location is
determined by the prior public use that was the
basis for the creation of the easement.[FN14]
Case Example: A county road was used since
1874 with only a surface width of 20 to 25 feet,
and the contiguous property owners had
constructed improvements adjacent to the
pavement. In 1986 the county decided to widen
the road to 50 to 80 feet and claimed a right of
way for that width, but the owners alleged that
the right of way was limited to the width
actually used as a road in the past.
The court found that at the time the road was
created there was no county ordinance that
specified the minimum width of county roads
and that the statute that provides for a
minimum width of 50 feet for county roads
was not applicable. It concluded, therefore, that
the width of the road was limited to the actual
past use that constituted the public
dedication.[FN15]
[FN1] Dooling v. Dabel, 82 Cal. App. 2d 417,

424, 186 P.2d 183 (3d Dist. 1947); Matthiessen
v. Grand, 92 Cal. App. 504, 510, 268 P. 675
(1st Dist. 1928).
See 15:33 to 15:37 (use requirements for
prescriptive easements).
See Scope of prescriptive easement for access
(easement of way), 79 A.L.R.4th 604;
Acquisition by user or prescription of right of
way over uninclosed land, 46 A.L.R.2d 1140;
Acquisition of right of way by prescription as
affected by change of location or deviation
during prescriptive period, 80 A.L.R.2d 1095.
Inc., 35 Cal. 3d 564, 571, 199 Cal. Rptr. 773,
676 P.2d 584 (1984) (truck turnaround; various
drivers followed slightly different courses, but
the court confirmed the prescriptive easement);
Applegate v. Ota, 146 Cal. App. 3d 702, 712,
194 Cal. Rptr. 331 (2d Dist. 1983).
See 15:33 to 15:37 (use requirements).
[FN3] Civ. Code, 806; Stevens v.
Mostachetti, 73 Cal. App. 2d 910, 911, 167
P.2d 809 (2d Dist. 1946).
See Width and boundaries of public highway
acquired by prescription or adverse user, 76
A.L.R.2d 535.
[FN4] Hannah v. Pogue, 23 Cal. 2d 849, 854,
147 P.2d 572 (1944); Vestal v. Young, 147
Cal. 715, 718, 82 P. 381 (1905); McGuire v.
Brown, 106 Cal. 660, 665-660, 39 P. 1060
(1895).
[FN5] Ward v. City of Monrovia, 16 Cal. 2d
815, 821, 108 P.2d 425 (1940); Hargrave v.
Cook, 108 Cal. 72, 80, 41 P. 18 (1895); Guerra
v. Packard, 236 Cal. App. 2d 272, 283, 46 Cal.
Rptr. 25 (1st Dist. 1965); Serrano v. Grissom,
213 Cal. App. 2d 300, 305, 28 Cal. Rptr. 579
(5th Dist. 1963).
See also Acquisition of right of way by
prescription as affected by change of location
or deviation during prescriptive period, 80
A.L.R.2d 1095.
[FN7] Thompson v. Dypvik, 174 Cal. App. 3d
329, 340, 220 Cal. Rptr. 46 (6th Dist. 1985).
[FN8] See, e.g., Applegate v. Ota, 146 Cal.
1983); Stevens v. Mostachetti, 73 Cal. App. 2d
910, 912, 167 P.2d 809 (2d Dist. 1946).
[FN9] Applegate v. Ota, 146 Cal. App. 3d 702,
711, 194 Cal. Rptr. 331 (2d Dist. 1983).
[FN10] Stevens v. Mostachetti, 73 Cal. App.
2d 910, 912, 167 P.2d 809 (2d Dist. 1946).
[FN11] See 16:11 (adverse possession; color-
of-title situations).
[FN12] Mehdizadeh v. Mincer, 46 Cal. App.
4th 1296, 1305-1307, 54 Cal. Rptr. 2d 284 (2d
(July 24, 1996); Thompson v. Dypvik, 174 Cal.
App. 3d 329, 338-341, 220 Cal. Rptr. 46 (6th
Dist. 1985).
[FN13] See 15:43 (creation of easements by
dedication).
[FN14] Western Aggregates, Inc. v. County of
Yuba, 101 Cal. App. 4th 278 (3d Dist. 2002);
City of Long Beach v. Daugherty, 75 Cal. App.
3d 972, 979-982, 142 Cal. Rptr. 593 (2d Dist.
1977).
See 26:10 to 26:14 (common law
dedication; offer implied from public use).
[FN15] County of Colusa v. Charter, 208 Cal.
App. 3d 256, 256 Cal. Rptr. 45 (3d Dist. 1989),
opinion modified, (Mar. 20, 1989).
MILCALRE 15:53
Kenneth Styles

2. Use of Easements
15:54. Extent of permitted use; rules of

general application

49
Permitted use depends on the method of
creation. The method of creation determines
the extent of an easement's use.[FN1]
Therefore, when considering the propriety of
the use of an easement, reference must be made
to the particular rules that have developed
based on how the easement was created.[FN2]
On the other hand, certain general rules
regarding the use of easements have developed
that apply to all easements regardless of how
they were created. This section discusses those
general rules.
The use is limited to original creation. Once
an easement has been created "both parties
have the right to insist that so long as the
easement is enjoyed it shall remain
substantially the same as it was at the time the
right accrued, entirely regardless of the
question as to the relative benefit and damage
that would ensue to the parties by reason of a
change in the mode and manner of its
enjoyment."[FN3]
Minor changes permitted. The strict
application of this rule has been relaxed to
permit minor alterations in the use of an
easement as long as the change is one of degree
and not of character. The owner of an easement
can make minor changes in the use of the
easement as long as there is no material or
substantial increase in the burden on the
servient tenement.[FN4]
Use cannot increase the burden on the
servient tenement. Once the extent of an
easement's use has been established, the
easement owner cannot subsequently enlarge
its character so as to materially increase the
burden on the servient tenement.[FN5]
Increase of burden by prescription. When a
party already has an easement, the use of the
easement may be enlarged by prescription if
the excessive use is of a nature and duration
sufficient to put the owner of the servient
tenement on notice of the greater rights
claimed by the user.[FN6]
Question of fact. The extent to which the use
of an easement can be altered, and the question
whether the use is excessive and amounts to a
surcharge on the servient tenement, are issues
of fact in each case.[FN7] A person other than
the owner of the servient tenement, and
possibly a person holding a lien on the servient
tenement,[FN8] cannot challenge the existence
or use of an easement over the land of
another.[FN9]
Use for illegal purposes. An easement may be
unenforceable when its use is illegal, such as a
commercial use in a residential zone in
violation of the zoning laws.[FN10] The owner
of the easement may not enforce the illegal
use,[FN11] and it may be enjoined as a
nuisance.[FN12]
Case Example: The boundary of two adjacent
properties was in the center of a 21-foot alley
that separated the two properties. One property
was zoned commercial and improved with an
office building, and the other property was
zoned residential and improved with an
apartment building. The owners of the two
properties executed an agreement for reciprocal
easements in the alley that provided that each
property owner could use the entire alley for
access to its respective rear service areas.
When the tenants in the apartment building
complained about the noise of late night
deliveries to the office building, the owner of
the apartment constructed a chain link fence
down the alley centerline. The commercial
owner filed suit to force the residential owner
to remove the boundary fence and to repair the
concrete alleyway.
The court held that the agreement was void to
the extent that it purported to authorize an
illegal, commercial use of half of the alleyway
that was owned by the residential owner and
was zoned for residential, not commercial,
uses. A private contract, easement, or
restrictive covenant cannot circumvent a
municipality's zoning restrictions. Thus, the
commercial owner could not rely on the
agreement to grant the right to use for
commercial purposes the residentially zoned
half of the alleyway owned by the residential
owner.[FN13]
Rights of the parties are relative. When
considering the rights of the parties relating to
an easement, in general the rights and duties of
each party are relative to the rights and duties
of the other party. The rights of the owner of
the easement are restrictive and the rights of
the owner of the servient tenement are residual,
but both must act reasonably toward the
other.[FN14] These same principles apply to
the use of the easement.[FN15]
The rights to use the servient tenement are
relative and complementary. As a general
rule, the owner of the dominant tenement must
use the easement in a manner that imposes the
least burden on the servient tenement.[FN16]
Every incident of ownership that is not
inconsistent with the use and enjoyment of the
easement is reserved to the owner of the
servient estate.[FN17] The owner of the
servient estate may use the easement area as
long as the use does not "unreasonably
interfere" with the purpose of the
easement.[FN18] Whether any particular use of
the easement area by the owner of the servient
tenement is an unreasonable interference with
the rights of the owner of the dominant
tenement is a question of fact.[FN19]
Cases:
Use for illegal purposes. In Baccouche v.
Blankenship, 154 Cal. App. 4th 1551, 65 Cal.
Rptr. 3d 659 (2d Dist. 2007), the court of
appeal prohibited the use of an equine
easement because it violated a city ordinance.
A prior grant of an express easement permitted
the defendant owner of the dominant tenement
to keep and enjoy horses on a portion of the
property owned by the plaintiff servient
tenement. The City ordinance permitted the
"[k]eeping of equines in conjunction with the
residential use of the lot" While the
defendant easement owner had a residence on
his property, the property burdened by the
easement consisted of a vacant lot. The court
concluded that the easement owner could not
keep horses on the vacant lot, but it refused
plaintiff's request to void the easement, noting
that the easement owner could seek a variance.
[END OF SUPPLEMENT]
[FN1] Civ. Code, 806: "The extent of a

servitude is determined by the terms of the
grant, or the nature of the enjoyment by which
it was acquired."
[FN2] See 15:56 to 15:58 (use of express,
implied, and prescriptive easements).
[FN3] Whalen v. Ruiz, 40 Cal. 2d 294, 302,
253 P.2d 457 (1953); Allen v. San Jose Land &
Water Co., 92 Cal. 138, 141, 28 P. 215 (1891).
[FN4] Hargrave v. Cook, 108 Cal. 72, 80, 41 P.
18 (1895); Burris v. People's Ditch Co., 104
Cal. 248, 252, 37 P. 922 (1894); Gaither v.
Gaither, 165 Cal. App. 2d 782, 785, 332 P.2d
436 (3d Dist. 1958); Marangi v. Domenici, 161
Cal. App. 2d 552, 559, 326 P.2d 527 (2d Dist.
P. 370 (1st Dist. 1924).
See Right of owner of easement to alter its use
in such a way as to deprive servient estate of an
incidental benefit, 172 A.L.R. 193.
[FN5] See 15:55 (increased or changed use).
[FN6] See 15:58 (prescriptive easements).
[FN7] Smith v. Worn, 93 Cal. 206, 214, 28 P.
944 (1892); Scruby v. Vintage Grapevine, Inc.,
37 Cal. App. 4th 697, 703, 43 Cal. Rptr. 2d 810
(1st Dist. 1995), as modified on denial of reh'g,
(Sept. 6, 1995); Russell v. Palos Verdes
Properties, 218 Cal. App. 2d 754, 771, 32 Cal.
Rptr. 488 (2d Dist. 1963) (disapproved on
other grounds by, Citizens for Covenant
Compliance v. Anderson, 12 Cal. 4th 345, 47
Cal. Rptr. 2d 898, 906 P.2d 1314 (1995)); Wall
v. Rudolph, 198 Cal. App. 2d 684, 696, 18 Cal.
Rptr. 123, 3 A.L.R.3d 1242 (2d Dist. 1961).
See 15:55 (increased or changed use).
Also see Right of owners of parcels into which
dominant tenement is or will be divided to use
right of way, 10 A.L.R.3d 960; What
Constitutes, and Remedies for, Misuse of
Easement, 111 A.L.R.5th 313.
[FN8] See 10:53 (waste by the trustor or a
successor).
[FN9] See 15:72 (remedies for interference
with the use of an easement).
[FN10] Teachers Ins. & Annuity Assn. v.
Furlotti, 70 Cal. App. 4th 1487, 1498, 83 Cal.
Rptr. 2d 455 (2d Dist. 1999); City and County
of San Francisco v. Safeway Stores, Inc., 150
Cal. App. 2d 327, 332-333, 310 P.2d 68, 63
A.L.R.2d 1441 (1st Dist. 1957).
Furlotti, 70 Cal. App. 4th 1487, 1498, 83 Cal.
Rptr. 2d 455 (2d Dist. 1999).
[FN12] City and County of San Francisco v.
Safeway Stores, Inc., 150 Cal. App. 2d 327,
332-333, 310 P.2d 68, 63 A.L.R.2d 1441 (1st
Dist. 1957).
Furlotti, 70 Cal. App. 4th 1487, 83 Cal. Rptr.
2d 455 (2d Dist. 1999).
See Miller & Starr, California Real Estate
Digest 3d, Zoning and Planning 6; West's
Key Number Digest, Zoning and Planning
273.1, 302.
[FN14] See 15:63 (relative rights; balancing
the equities).
[FN15] See Extent and reasonableness of use
of private way in exercise of easement granted
in general terms, 3 A.L.R.3d 1256.
[FN16] Locklin v. City of Lafayette, 7 Cal. 4th
327, 356, 27 Cal. Rptr. 2d 613, 867 P.2d 724
(1994); Scruby v. Vintage Grapevine, Inc., 37
Cal. App. 4th 697, 702, 43 Cal. Rptr. 2d 810
(Sept. 6, 1995).
[FN17] Scruby v. Vintage Grapevine, Inc., 37
(Sept. 6, 1995); Golden West Baseball Co. v.
City of Anaheim, 25 Cal. App. 4th 11, 35, 31
Cal. Rptr. 2d 378 (4th Dist. 1994); City of Los
Angeles v. Ingersoll-Rand Co., 57 Cal. App. 3d
889, 893-894, 129 Cal. Rptr. 485 (2d Dist.
1976).
Public Utilities Com., 51 Cal. 3d 845, 867, 274
Cal. Rptr. 678, 799 P.2d 758 (1990); Scruby v.
Vintage Grapevine, Inc., 37 Cal. App. 4th 697,
702-703, 43 Cal. Rptr. 2d 810 (1st Dist. 1995),
as modified on denial of reh'g, (Sept. 6, 1995);
Raab v. Casper, 51 Cal. App. 3d 866, 876, 124
Cal. Rptr. 590 (3d Dist. 1975).
See 15:59 (use of a road or other surface
easement).
[FN19] Scruby v. Vintage Grapevine, Inc., 37
(Sept. 6, 1995) (servient owner allowed to
place improvements within a non-exclusive
easement so long as those improvements did
not unnecessarily interfere with the easement
owners access); Pacific Gas & Elec. Co. v.
Hacienda Mobile Home Park, 45 Cal. App. 3d
519, 528, 119 Cal. Rptr. 559 (1st Dist. 1975).
See 15:56 (use of express easements),
15:59 (use of road or other surface easement).

Kenneth Styles

2. Use of Easements
15:55. Increased or changed use

58

servient tenement. The owner of an easement
cannot change or increase the use of the
easement in any manner that imposes a new or
greater burden on the servient tenement
without the consent of the servient
owner.[FN1] An unreasonable increase in the
burden on the servient tenement resulting from
an increase or change in the use of an easement
is called a "surcharge."
Improvements and minor changes
permitted. The owner of an easement can
improve it in any reasonable manner in order to
make its use more suitable and convenient and
is not prevented from making minor changes or
improvements that do not change the mode of
enjoyment or increase the burden on the
servient tenement.[FN2] Some decisions have
prohibited any substantial change in the use of
the easement even though the new method of
use may be more beneficial and less
burdensome to the owner of the servient
tenement.[FN3]
Case Example: The owner of the easement
acquired a prescriptive right to carry water
across the servient tenement in an open ditch.
In two separate decisions, the court prohibited
the easement owner from subsequently
installing a covered pipe, even though the
alteration may have been beneficial to the
owner of the servient tenement, because it
constituted a material and substantial change in
the use.[FN4]
Case Example: The owner of an easement
intended to relocate a dam and ditch because
the existing dam was useless. Based on the
objections of the servient tenement owner, the
court rejected the attempt at relocation because
it would require a change in the river's location,
despite the fact that the new location would not
impose any greater burden on the servient
estate.[FN5]
Case Example: The person who acquired a
prescriptive right to maintain a dam was
allowed to enlarge it because the greater size
did not increase the area of flooding or
otherwise increase the burden of the
easement.[FN6]
Servient tenement owner can enjoin
excessive use. An unreasonable increase of the
burden may ripen into a prescriptive right and
is a nuisance that can be enjoined by the owner
of the servient tenement.[FN7] A material
increase in the use also may result in the
forfeiture or extinguishment of the
easement.[FN8]
Question of fact. The issue of whether a
change in the use of an easement is excessive
and a surcharge on the servient tenement is a
question of fact in each case that requires a
determination as to whether the alteration will
cause an unreasonable increase in the burden
on the servient tenement.[FN9]
Case Example: It was conceded that an
easement to an orchard was still usable when
the dominant tenement was converted to
residential property because the quantity of use
remained the same.[FN10]
Case Example: The owner of an easement was
prevented from rebuilding a dam with different
materials because it would result in an
increased burden on the servient estate.[FN11]
Case Example: For many years, an open
earthen ditch for the transportation of water
from a river to a reservoir remained unlined
and therefore permitted seepage into the
servient tenement, which supported vegetation
along the route of the easement. However, in
order to prevent this seepage and thus to
preserve the water, the owner of the easement
threatened to line the earthen easement with
gunite in order to make the ditch impervious.
The owner of the servient tenement obtained an
injunction preventing the lining of the ditch.
The court reasoned that the seepage of water
that supported vegetation on the servient
tenement was a benefit to the servient
tenement, and a termination of that benefit was
therefore a detriment to the servient tenement.
Although the servient tenement could not
acquire prescriptive rights to the
seepage,[FN12] and the owner of the easement
could abandon it if it was not efficient, its use
could not be changed if it would cause a
detriment to the servient tenement. The owner
of an easement cannot change the nature or
scope of the easement in any manner that
unreasonably increases the burden on the
servient tenement. In addition, the lining of the
ditch did not fall within the secondary
easement that permits a repair of the
easement,[FN13] because "repair" merely
means acts to preserve the existing conditions
and the "repair" cannot increase the burden on
the servient tenement.[FN14]
A contemplated increase of the burden is
permitted. Whether the increased use is
excessive is a question of fact[FN15] that
depends on either the terms of the document
that establishes the easement or the
circumstances of its creation and the intent of
the parties, including the natural and
reasonably contemplated future needs of the
dominant tenement resulting from the probable
evolution in its future use.[FN16]
The extent of the easement is inferred from the
circumstances that exist at the time of the
conveyance. The use of an easement can be
enlarged in cases where it can be shown that an
increased use was reasonably contemplated by
the parties within the ordinary development of
the dominant tenement,[FN17] and the use is
for reasonable purposes consistent with the
scope of the basic purpose of the grant.[FN18]
In some circumstances the dominant tenement
may be subdivided and the easement used to
serve the subdivided parcels if the additional
use will not surcharge the servient
tenement.[FN19]
Case Example: The agreement between the
parties indicated that they "contemplated" that
the easements would serve a multiple-unit
development on the dominant tenement, but the
parties also were aware at the time of the
conveyance that the owner of the dominant
tenement had been denied a permit for
multiple-unit construction and that he therefore
intended a commercial development. The court
permitted the use of the easement for
commercial purposes.[FN20]
Case Example: The grantor reserved a 12-foot
roadway easement, but it was too narrow at one
place for automobiles to turn. For several
years, the grantor and his successor used an
additional eight-foot area to make the turn with
their cars. The court held that the grantor and
the servient tenement owner had impliedly
agreed to enlarge the easement at that
location.[FN21]
Change permitted for technological
developments. The use of an easement can be
changed when the new use is similar to the
former use, and the new use results from
changed economic and technological
conditions.
Case Example: The owner of a granted
easement for telephone poles and lines was
allowed to use the easement and poles for cable
transmission lines because the additional lines
did not increase the burden on the servient
tenement, the use was consistent with the
primary object of the grant, it was within the
scope of the easement, and it was a result of the
natural evolution of communications
technology.[FN22]
Case Example: The use of an easement
granted for a public electric railway was
changed for use by a public motor coach
service. The court approved the changed use
because there was no increased burden on the
servient tenement, the changed use was
consistent with the granted use, and the new
use was the result of changed economic and
technological conditions.[FN23]
Case Example: A landowner challenged a
private energy corporation's installation of a
natural gas pipeline within a public right-of-
way on the landowner's property. The
corporation had obtained a county approval to
bury its pipeline within the right-or-way, but
did not obtain the consent of the underlying
landowners. The court identified two, old lines
of authority: the "expansive" approach taken in
Montgomery v. Santa Ana & W. Ry. Co., 104
Cal. 186, 37 P. 786 (1894) and Colegrove
Water Co. v. City of Hollywood, 151 Cal. 425,
90 P. 1053 (1907), and the more restrictive
approach in Gurnsey v. Northern California
Power Co., 160 Cal. 699, 117 P. 906 (1911).
The court followed the "expansive" approach,
stating that a broad interpretation of public
rights was appropriate in order to
accommodate the extensive infrastructure that
accommodates modern development. The court
reasoned that the more restrictive approach is
applicable only to rights-of-way that have yet
to be subjected to the "other and further uses"
that are incident to modern development.
[FN24]
Apportionment of an appurtenant easement.
When an appurtenant easement benefits two or
more parcels as dominant tenements, and the
easement terminates as to one dominant
tenement, the remaining dominant tenements
do not have the right to the full use of the
easement. Its use must be apportioned, and the
remaining dominant tenement only has a
proportionately reduced right to use the
easement.[FN25]
Application of apportionment to easements
in gross. The rule of apportionment may be
difficult where an apportionment involves an
easement in gross.[FN26] The statutory
restriction against apportionment[FN27]
applies only to appurtenant easements. There is
some authority that an easement in gross can
be apportioned and used by several persons if it
is exclusive. However, it cannot be apportioned
if it is nonexclusive.[FN28] Thus, by analogy,
an exclusive profit can be apportioned, but a
nonexclusive profit cannot.[FN29]
Case Example: A telephone company licensed
the use of its poles to a cable television
company to string lines within the telephone
company's easements. The court held that (1)
the easement was in gross because it was
independent of any specific property owned by
the utility; (2) the easement was exclusive to
the grantee in reference to the owner of the
servient tenement (grantor) because the grantor
did not intend to, and was not authorized to,
use the easement for transmission purposes;
and (3) the easement, as an exclusive right,
could be apportioned by license to the cable
company.[FN30]
Cases:
servient tenement. In Koponen v. Pacific Gas
& Elec. Co., 165 Cal. App. 4th 345, 81 Cal.
Rptr. 3d 22 (1st Dist. 2008), a class of
plaintiffs asserted that PG&E had installed
fiber-optic lines and then improperly leased or
licensed portions of those lines to third parties,
thereby exceeding the scope of the easements
granted or conveyed to it and reducing the
value of plaintiffs' properties. The trial court
sustained PG&E's demurrer, holding that Pub.
Util. Code, 1759 deprived the superior court
of jurisdiction to adjudicate plaintiffs' claims.
The court of appeal reversed, holding that
while the PUC has the authority to regulate
rates and PG&E's use of its property, the PUC
lacked authority to regulate the private disputes
over property rights between PG&E and
private landowners. Thus, 1759 would bar
some of plaintiffs' claims, but other claims
would be adjudicated by the court.
[END OF SUPPLEMENT]
[FN1] Colegrove Water Co. v. City of

Hollywood, 151 Cal. 425, 428, 90 P. 1053
(1907); McCarty v. Walton, 212 Cal. App. 2d
39, 46, 27 Cal. Rptr. 792 (3d Dist. 1963); Wall
Rptr. 123, 3 A.L.R.3d 1242 (2d Dist. 1961);
Goubert v. Pomona Val. Water Co., 137 Cal.
App. 2d Supp. 852, 289 P.2d 601 (App. Dep't
Super. Ct. 1955); Smith v. Rock Creek Water
Corp., 93 Cal. App. 2d 49, 52, 208 P.2d 705
(2d Dist. 1949); Bartholomew v. Staheli, 86
Cal. App. 2d 844, 850, 195 P.2d 824 (3d Dist.
1948).
See Extent and reasonableness of use of private
way in exercise of easement granted in general
terms, 3 A.L.R.3d 1256; Right of owner of
easement to alter its use in such a way as to
deprive servient estate of an incidental benefit,
172 A.L.R. 193.
[FN2] See 15:54 (extent of permitted use),
15:63 (rights of use are relative).
[FN3] Hannah v. Pogue, 23 Cal. 2d 849, 854-
856, 147 P.2d 572 (1944); Oliver v. Agasse,
132 Cal. 297, 298-300, 64 P. 401 (1901); Allen
v. San Jose Land & Water Co., 92 Cal. 138,
139-141, 28 P. 215 (1891); Chapman v. Sky
L'Onda Mut. Water Co., 69 Cal. App. 2d 667,
681, 159 P.2d 988 (1st Dist. 1945).
[FN4] Oliver v. Agasse, 132 Cal. 297, 298-
300, 64 P. 401 (1901); Allen v. San Jose Land
& Water Co., 92 Cal. 138, 139-141, 28 P. 215
(1891).
[FN5] Hannah v. Pogue, 23 Cal. 2d 849, 854-
856, 147 P.2d 572 (1944).
Co., 69 Cal. App. 2d 667, 681, 159 P.2d 988
(1st Dist. 1945).
[FN7] Joseph v. Ager, 108 Cal. 517, 520, 41 P.
422 (1895); Krieger v. Pacific Gas & Electric
Co., 119 Cal. App. 3d 137, 145-147, 173 Cal.
Rptr. 751 (3d Dist. 1981); Russell v. Palos
Verdes Properties, 218 Cal. App. 2d 754, 773,
32 Cal. Rptr. 488 (2d Dist. 1963) (disapproved
on other grounds by, Citizens for Covenant
Compliance v. Anderson, 12 Cal. 4th 345, 47
Cal. Rptr. 2d 898, 906 P.2d 1314 (1995)); Wall
Rptr. 123, 3 A.L.R.3d 1242 (2d Dist. 1961);
Freitas v. City of Atwater, 196 Cal. App. 2d
289, 295, 16 Cal. Rptr. 397 (3d Dist. 1961);
Crimmins v. Gould, 149 Cal. App. 2d 383,
390-392, 308 P.2d 786 (1st Dist. 1957); White
v. Walsh, 105 Cal. App. 2d 828, 832, 234 P.2d
276 (3d Dist. 1951); Goubert v. Pomona Val.
Water Co., 137 Cal. App. 2d Supp. 852, 289
P.2d 601 (App. Dep't Super. Ct. 1955).
See Glass v. Gulf Oil Corp., 12 Cal. App. 3d
412, 432, 96 Cal. Rptr. 902 (1st Dist. 1970).
[FN8] See 15:77 (termination; incompatible
acts by the easement owner).
[FN9] See 15:54 (extent of permitted use;
rules of general application).
[FN10] Crimmins v. Gould, 149 Cal. App. 2d
383, 391, 308 P.2d 786 (1st Dist. 1957).
[FN11] San Joaquin & Kings River Canal &
Irrigation Co. v. Egenhoff, 61 Cal. App. 2d 82,
88, 141 P.2d 939 (1st Dist. 1943).
[FN12] See 15:34 (prescriptive easements;
visible, open, and notorious use).
[FN13] See 15:67 (maintenance and repair).
[FN14] Krieger v. Pacific Gas & Electric Co.,
119 Cal. App. 3d 137, 145, 173 Cal. Rptr. 751
(3d Dist. 1981).
[FN15] See 15:54 (extent of permitted use).
Cal. Rptr. 678, 799 P.2d 758 (1990) (express
grant); Hill v. Allan, 259 Cal. App. 2d 470,
486, 66 Cal. Rptr. 676 (1st Dist. 1968).
See 15:54 to 15:62 (use of easements).
Cal. Rptr. 678, 799 P.2d 758 (1990); Neff v.
Ernst, 48 Cal. 2d 628, 635, 311 P.2d 849
(1957) (implied easement); Fristoe v. Drapeau,
35 Cal. 2d 5, 9, 215 P.2d 729 (1950) (implied
road easement); C.F. Lott Land Co. v. Hegan,
177 Cal. 169, 172, 169 P. 1035 (1917) (granted
road easement); George v. Goshgarian, 139
Dist. 1983) (implied easement); People ex rel.
Dept. of Transportation v. Southern Pac.
148 Cal. Rptr. 535 (3d Dist. 1978); Atchison,
T. & S. F. Ry. Co. v. Abar, 275 Cal. App. 2d
456, 464, 79 Cal. Rptr. 807 (1st Dist. 1969);
Hill v. Allan, 259 Cal. App. 2d 470, 484, 66
Cal. Rptr. 676 (1st Dist. 1968) (granted
easement); Beab, Inc. v. First Western Bank &
Trust Co., 204 Cal. App. 2d 680, 687, 22 Cal.
Rptr. 583 (1st Dist. 1962); Freitas v. City of
Atwater, 196 Cal. App. 2d 289, 295, 16 Cal.
Rptr. 397 (3d Dist. 1961) (prescriptive
easement); Gagnon v. Adamson, 122 Cal. App.
2d 253, 260, 264 P.2d 620 (2d Dist. 1953)
(implied easement); Kaynor v. Fisch, 103 Cal.
App. 2d 832, 839, 230 P.2d 418 (2d Dist.
1951).
See Extent and reasonableness of use of private
way in exercise of easement granted in general
terms, 3 A.L.R.3d 1256, 1267.
[FN18] Laux v. Freed, 53 Cal. 2d 512, 525, 2
Cal. Rptr. 265, 348 P.2d 873 (1960); City of
Pasadena v. California-Michigan Land &
Water Co., 17 Cal. 2d 576, 578, 110 P.2d 983,
133 A.L.R. 1186 (1941); Atchison, T. & S. F.
Ry. Co. v. Abar, 275 Cal. App. 2d 456, 464, 79
Cal. Rptr. 807 (1st Dist. 1969); Drexler v.
Hufnagel, 76 Cal. App. 2d 606, 609, 173 P.2d
677 (2d Dist. 1946). See Extent and
reasonableness of use of private way in
exercise of easement granted in general terms,
3 A.L.R.3d 1256, 1266.
[FN19] See 15:60 (subdivision of the
dominant tenement).
[FN20] Beab, Inc. v. First Western Bank &
Trust Co., 204 Cal. App. 2d 680, 687, 22 Cal.
Rptr. 583 (1st Dist. 1962).
[FN21] Kosich v. Braz, 247 Cal. App. 2d 737,
739-740, 56 Cal. Rptr. 52 (1st Dist. 1967).
165 Cal. App. 3d 798, 802, 212 Cal. Rptr. 31
(2d Dist. 1985); Norris v. State ex rel. Dept. of
Public Works, 261 Cal. App. 2d 41, 47, 67 Cal.
Rptr. 595 (3d Dist. 1968); (court allows grantee
(State of California) to build vista point and
rest area on road easement).
[FN23] Faus v. City of Los Angeles, 67 Cal. 2d
350, 355-358, 62 Cal. Rptr. 193, 431 P.2d 849
(1967).
[FN24] Bello v. ABA Energy Corp., 121 Cal.
App. 4th 301, 16, 16 Cal. Rptr. 3d 818 (1st
Dist. 2004); see also Anderson v. Time Warner
Telecom of California, Inc., 129 Cal. App. 4th
411, 28 Cal. Rptr. 3d 289 (5th Dist. 2005),
review denied, (July 27, 2005).
[FN25] Civ. Code, 807; Herbert v. Russell, 1
Dist. 1969) (light and air); Leggio v. Haggerty,
231 Cal. App. 2d 873, 881, 42 Cal. Rptr. 400
(5th Dist. 1965).
[FN26] Gaither v. Gaither, 165 Cal. App. 2d
782, 784, 332 P.2d 436 (3d Dist. 1958).
See 15:7 (easement in gross).
[FN28] Restatement, Property, 493.
See also Reservation in grant of land of right to
hunt and fish with like right to the grantee, as
limiting the right of the grantee to actual
owners of the land, 32 A.L.R. 1533.
[FN29] Chandler v. Hart, 161 Cal. 405, 415-
419, 119 P. 516 (1911).
165 Cal. App. 3d 798, 803, 212 Cal. Rptr. 31
(2d Dist. 1985). The court relied on
The court distinguished Loretto v.
Teleprompter Manhattan CATV Corp., 458
U.S. 419, 438-440, 102 S. Ct. 3164, 73 L. Ed.
2d 868, 8 Media L. Rep. (BNA) 1849 (1982),
which held that a landlord was not required to
permit installation of cable television facilities
on his property because in that case there was
no easement.

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MILCALRE CH 15 REF Next Section

Harry D. Miller and Marvin B. Starr

Chapter 15. Easements

California Practice Guide, Real Property

West's Key Number Digest, Easements 1 et

Code Civ. Proc., 1240.350

Gov. Code, 65870 to 65875

Sts. & Hy. Code, 8330 to 8353

A.L.R. Index: Prescriptive Easements

West's A.L.R. Digest,

What Constitutes, and Remedies for, Misuse of

Witkin, 8 Summary of California L.,

Am. Jur. 2d, Easements and Licenses in Real

C.J.S., Easements 1 et seq.

Treatises and Practice Aids

Miller & Starr, California Real Estate Digest

Proof of Intent to Abandon Easement, 53 Am.

EasementsExistence of Way of Necessity,

Establishment of Public Prescriptive Easement,

Establishment of Private Prescriptive

Am. Jur. Pleading and Practice Forms,

West's California Code Forms, Civil (4th ed.)

Model Codes and Restatements

Restatement Second, Torts 188

2010 Thomson Reuters/West. No Claim to

A. Other Relationships Compared

15:1. Easement defined; profits

West's Key Number Digest

West's Key Number Digest, Easements 1

Easement defined. An easement is an

[FN1] Mehdizadeh v. Mincer, 46 Cal.

2010 Thomson Reuters/West. No Claim

A. Other Relationships Compared

References Correlation Table

15:2. Licenses distinguished

West's Key Number Digest

Nature of a license. A license gives

[FN1] Golden West Baseball Co. v. City

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A. Other Relationships Compared

References Correlation Table

15:3. Covenants and conditions

West's Key Number Digest

Restrictions. A private landowner can impose

2010 Thomson Reuters/West. No Claim to

Chapter 15. Easements

A. Other Relationships Compared

References Correlation Table

15:4. Lease distinguished

West's Key Number Digest

West's Key Number Digest, Easements 1 to 9

Lease and easement compared. A lease is an

[FN1] See 19:1 (landlord and tenant,

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B. Definitions; Specific Types of

References Correlation Table

West's Key Number Digest

West's Key Number Digest, Easements 1

Easement defined. An easement is an

2010 Thomson Reuters/West. No Claim

B. Definitions; Specific Types of

References Correlation Table

15:6. Appurtenant easements;

West's Key Number Digest