A Private Easement for “Public Road Purposes;” its Still A Private Easement Enforceable Only By the Private Parties

A public right of way, while it may be described as an easement, is much different from a private easement. The Supreme Court explained that ‘public ways, as applied to ways by land, are usually termed “highways” or “public roads,” and are such ways as every citizen has a right to use. A private way relates to those easements in which a particular person, or particular description or class of persons, have an interest or right as distinguished from the general public. A private easement ordinarily vests those use rights in the owner of a particular parcel of neighboring property, while the use rights of a public right-of-way are vested equally in each and every member of the public. Sacramento real estate attorneys often face issues concerning private easements – extent of use of the easement, interference with the easement, etc. but seldom need to address public right of way issues. In a recent decision, the court explained that using the language “for public road purposes” in the grant of easement between private parties does not create an easement for public use, but rather to allow access to a public road.

In Schmidt v. Bank of America, N.A. the easement holder sold a portion of their property in La Mesa to Betty, reserving an easement, the language being:

“RESERVING to the grantor, her successors, assigns and/or heirs, the right of ingress and egress for public road purposes over, along and across the Easterly 40 feet thereof.”

Betty sold the property, and eventually a large condominium [project was developed, with construction of numerous features on, around, and under the easement area, including a locked gate on the easement holder’s property! This lawsuit followed.

The trespassing condo project owner argued that the phrase “for public road purposes” created a public right-of-way over the reserved easement. As a public right-of-way, it may be used for any infrastructure that accompanies normal development, including the various structures and improvements (Bello v. ABA121 Cal App 4th 301). The easement holder argued that the grant created only a “right of ingress and egress” that entitles their dominant parcel to use only the surface of the easement, and that the easement benefits only the dominant parcel and not the public at large.

The court first noted that an easement is a restricted right to specific, limited, definable use or activity upon another’s property, which right must be less than the right of ownership. Here, the grant is restricted to the right to ingress and egress. The phrase “right of ingress and egress” has been used to describe one of the easements that a landowner has over a public street that his land abuts. “Every lot fronting upon a street has, as appurtenances thereto, certain private easements in the street, in front of and adjacent to the lot. The court concluded that the parties intended that the easement holder would have a right of ingress and egress across the condo property in order to reach a public road. A public right of way entitles all the public to use the easement. Here, the reserved easement exists only between two private parties.
The condo project owner also argued that the phrase “and incidental purposes” means that the reserved easement should be interpreted broadly and encompass any use incidental to a public road. The court disagreed. “Incidental purposes” are necessarily dependent and subordinate to the main purpose of the easement, which was access to a public road.

Either the developer didn’t care about the neighbors, or its planners did not know about the easement. Most landowners do not look the other way when their easement rights are interfered with. Not only did this developer impact the easement, but they put a locked gate on the neighbors property, poking at the hornets nest. No surprise, but this developer defaulted on its loan, and Bank of America got into this lawsuit because it foreclosed on the developer.

Photos:
http://www.freeimages.com/photo/509059
https://www.flickr.com/photos/brraveheart/6176148601/sizes/m/