California Real Estate Lawyers Blog
Occasionally an owner conveys property without reserving an express or written easement to continue using the property for purposes related to an adjoining parcel. Most often the easement is for access to the adjoining property. In such cases, the courts determine if there should be an “implied easement.”
An implied easement requires the following conditions:
1. The owner conveys all or a portion of their property;
2. The owner’s prior existing use of the conveyed property was of a nature that the parties must have intended or believed that the use would continue; meaning that the existing use must either have been known to both parties or have been so obviously and apparently permanent that the parties should have known of the use;
3. The easement is reasonably necessary to the use of and benefit of the dominant tenement -the property that benefits from the implied easement.
Experienced Sacramento and Yolo real estate attorneys will apply their client’s facts to these tests to argue for and against establishment of easements. Such a case was described in a recent decision, Thorstrom v Thorstrom, in which a woman owned two adjacent parcels in Fort Bragg. The original family house was on the larger parcel, but she eventually built a house that she moved to on the smaller parcel. The well on the small parcel was bad, so she had a new one dug on the large parcel and drew water from it for the smaller parcel. The pump and electronics were on the smaller parcel. The larger parcel also obtained its water from the well, after it was pumped to the small property, it returned to the larger one.
The woman died and left each parcel to a different son- Wayne got the larger parcel where the well was, Alan got the smaller one where the pump was. Alan shut off the water going back to Wayne, and built a 2,500 gallon water storage tank to hold water from the well on Wayne’s property. The lawsuit followed. The trial court found an implied easement for Alan, owner of the smaller parcel, to have exclusive use of the well on Wayne’s property.
The court of appeals applied the three prong test to the findings of the trial court:
1. The mother, through her trust, on her death conveyed the properties;
2. The only well on the smaller parcel was old and only marginally functional; the pump & plumbing for the new well were located on the smaller parcel, showing that the smaller parcel was conveyed with the intent that they not rely exclusively on the old well, but have access to water from the new well on Wayne’s parcel;
3. Since the old well is no longer operational, the new well is vital for the supply of water to the smaller parcel.
The court of appeal found that an implied easement was correct, but not for exclusive use. The scope of the easement is measured by the extent the property was obviously and permanently used at the time the transfer was completed. Here, that prior use was not exclusive; the parcels shared the water before, now the brothers must continue to share the water.
I have written before about the courts’ refusal to grant exclusive prescriptive easements, as they would subsume reasonable use and end up a grant of real property. This court’s overturning of the trial court’s exclusive implied easement, along the same lines, ensures that litigants do not end up with the equivalent of a grant of real property, but are limited to the uses that had been established prior to the grant.