Claims of Easments by Necessity By Implied
Reservation Lying Within Rural Communities:
of ‘Landlocked’ Property
Daniel T. Mosier
When neither a landowner nor her land parcel is benefited by an express private or express public way of access, there are a number of potential legal theories of easements which may help to rectify this problem. One such theory has been called an “easement by necessity,” and it is based on common law principles.
Unlike other easement theories, the viability of an easement by necessity claim does not require circumstances of historic land or roadway use. The doctrine’s existence provides an incentive to invest in landlocked properties. In a proper case, an application of the doctrine can open vast areas of land for productive uses.
In California, when a claimed easement by necessity has been asserted, the easement claimant (i.e. owner of the claimed “dominant tenement”) must present evidence establishing the existence of two elements: (1) “a strict necessity for the claimed right-of-way, as when the claimant’s property is landlocked; and (2) the dominant and servient tenements were under [common ownership] at the time of the conveyance giving rise to the necessity” (see, Reese v. Borghi (1963) 216 Cal.App.2d 324, 332-333).
Finding the evidence necessary to establish this two part test requires title research. The title research must, among other things, trace title of all involved parcels to a common owner. “Remote grantees in the chain of title may assert the easement [by necessity] long after its creation by the original common grantor, and despite the failure of a prior grantee to exercise the right” (see, Murphy v. Burch (2009) 46 cal.4th 157, 163, citing Lichty v. Sickels (1983) 149 Cal. App.3d 696, 700-701).
Where the properties in question are within a rural community, the title research will often require tracing title back to a federal patent. “A ‘patent’ is a government grant that confers on an individual fee simple title to public lands, or the official document of such grant” (see, Murphy v. Burch (2009) 46 Cal.4th 157, 162, fn.1, citing Kellogg v. Garcia (2002) 102 Cal.App.4th 796, 800, fn.1).
Under current case law, the federal government “may be the common owner of the properties whose conveyance gives rise to the strict necessity that justifies an easement by way of necessity.” (see, Kellogg v. Garcia (2002) 102 Cal.App.4th 796, 806-807; see also, Moores v. Walsh (1995) 38 Cal.App.4th 1046, 1049, fn. 1). However, this rule has limited application.
For example, the California Supreme Court, in Murphy v. Burch (2009) 46 Cal.4th 157, held that the element of “strict necessity” does not exist when the federal government conveys federal land to a private owner without expressly reserving an easement for the benefit of the retained federal land. There, the federal government did not expressly reserve a right of access over the “Burch property” when it conveyed the “Burch property” in 1929 while retaining the landlocked “Murphy property.” The Court found that the federal government had the power of eminent domain to condemn an easement over the “Burch property,” which removed the strict necessity required for the creation of an easement by necessity.
In addition, the Court in Murphy cited to federal and state court decisions, stating that “a number of courts express reluctance to interfere with the certainty and predictability of land titles conveyed by a sovereign without any express reservation of rights” (see, Murphy, 46 Cal.4th, at pages l65-166, citing Leo Sheep Co. v. United States, 440 U.S. 668, 687-688).
Of importance here is “strict necessity and common ownership remain required showings (Kellogg, supra, 102 Cal. App.4th at p. 803; [Daywalt v. Walker (1963) 217 Cal.App.2d 699, 672]), but when a claimant traces common ownership back to the federal government and seeks to establish an implied reservation of an access right of way, the intent of Congress is paramount and the government’s power of eminent domain also bears significance” (see, Murphy, 46 Cal.4th, at 167, citing Leo Sheep Co. v. United States, 440 U.S. 668, 679-682). “Murphy offered no legislative history demonstrating that Congress intended to imply reservation of an easement under federal statutes authorizing the subject patents. (Sees Act of May 20, 1982, ch.75, 12 Stat. 392; Act of Mar 3, 1855, ch.207 10 Stat. 701; Act of Apr. 24, 1820, ch.51, 3 Stat. 566; accord [Granite Beach Holdings v. State of Washington (2000) 11 P.3d 847, 854]…[A]ny implication of a reservation of access appears negated by the circumstance that two of the statutes expressly provided for limited rights of reversion in the government, but omitted reservation of any other interest [citations omitted]…Nor did Murphy show that the government lacked authority to condemn access if it deemed that doing so was necessary.” (see, Murphy, 46 Cal.4th, at page 168).
The California Supreme Court’s decision in Murphy “did not impose a categorical bar to all easement by necessity claims tracing common ownership to the federal government” (see, Murphy 46 Cal.4th at page 167). The Court in Murphy distinguished the situation in Murphy from that which existed in Kellogg v. Garcia (2002) 102 Cal.App.4th 796, emphasizing that Kellogg involved a claim of implied grant. Citing to Miller & Starr’s treatise on California Real Estate, the Court in Murphy indicated that it fully agreed with the principle that “where the government is identified as the common grantor, an easement by necessity may be created against the government, 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 [6 Miller & Starr (3d Ed. 2006) §§ 15:27 and 15:28].”
The foregoing, when viewed in terms of underwriting and claims awareness, provides insight regarding risks associated with the issuance of owner’s policies and a potential way to resolve a claim involving an insured parcel that is allgedly landlocked.
When preparing to issue an owner’s policy of title insurance, the title company should know what it is insuring as far as access is concerned. If the property for which an owner’s policy is requested is neither benefited by a private easement, nor benefited by a public easement that provides access for that property, then the title company should consider whether an endorsement should be attached to the title policy which eliminates basic coverage for claims involving a problem of access. The title company may consider taking the same action even when the public records disclose that an express easement exists in favor of the property in question, but the location of that easement is not disclosed by the public records.
For covered claims where an insured property owner’s access is being disputed by another landowner, the claims handler may wish to make a determination whether an easement by necessity arose in favor ofthe insured property. The California Supreme Court’s decision in Murphy v. Burch (2009) 46 Cal.4th 157, provides a good discussion of the law regarding easements by necessity, and the circumstances in which they can, and cannot, arise from a conveyance made by a government entity.