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District Court of Appeal, Second District, Division 3, California.


Civ. 16528.

Decided: March 30, 1949

Charles F. Gerard, of Ventura, for appellants. Sprague & Sparks, of Los Angeles, for respondent.

Appeal by defendants from a judgment for plaintiff in an action to have it decreed that plaintiff is the owner of an easement over property of the defendants for ingress to and egress from plaintiff's lands and for an injunction enjoining defendants from obstructing and interfering with the easement. Defendants also appeal from the nonappealable order denying their motion for a new trial.

The accompanying sketch will lend to better understanding of the facts:

The property shown on the sketch was subdivided by Whittier Extension Company. Plaintiff is the owner of Lot 6a. Defendants are the owners of Lot 6c. A roadway of which the easement, as decreed, is a part, is shown by the dotted lines between Lots 6a and 6d on one side and Lot 6c on the other side. A county road, Oak Cañon Drive, runs along and is contiguous to the entire south boundary of plaintiff's property. She has used this road since acquiring the property for access to her house and garage and to remove fruit from the southerly portion of her land.

The complaint is in two counts. The first alleges facts as the basis of a prescriptive title. The second alleges facts as the basis of a grant of an implied easement. The court found: the existence of the roadway; that a portion thereof lies on appellants' property and a portion on respondent's property; it is for the benefit and convenience of the property of the parties; each party is entitled to use the roadway as means of ingress to and egress from their respective properties; a gate or other barricade should be maintained at the entrance to the roadway; the parties should have keys or other means of entry through the gate; appellants' right, title and interest in the roadway and the property through which it runs is subject to its use by respondent; due to the hilly nature of the terrain and the steepness of respondent's property, there is no other available means of ingress to or egress from the groves located thereon; from 1914 to 1930 Whittier Extension Company was the owner of all of Lot 6; during that ownership it built and improved the land (the portion between the dotted lines) as a permanent roadway, including cement retaining walls on both sides along various parts thereof; the roadway was constructed and situated so as to serve all of Lot 6 and any parcel thereof lying contiguous thereto; the roadway leads to a public thoroughfare, Oak Cañon Drive; on March 26, 1930, Whittier Extension Company conveyed Lot 6a to Cristine Drum; the conveyance reserved a portion of the existing roadway for road purposes and reserved the right to dedicate the roadway to public use; the part of the roadway reserved has no connection to the public thoroughfare other than over the balance of the roadway; the roadway has been utilized by Whittier Extension Company and its grantees for more than 25 years as a roadway; the use of that portion of the roadway, which is not a part of plaintiff's property, is reasonably necessary for the beneficial enjoyment of said property.

The court concluded that the roadway shall be kept open and is to be used by respondent and appellants as a means of egress into and over their respective parcels of property. The judgment decreed that both appellants and respondent shall have the equal right to the use of the roadway as a means of ingress to and over their respective properties.

The properties involved were originally owned by Whittier Extension Company and called Lot 6. About 1916 a roadway was constructed on Lot 6 between the dotted lines shown on the sketch with a turnabout at the north end. It was a permanent road with a gravel surface and had retaining walls along its sides in most of its course. About that time Lot 6 was, and still is, planted to lemons and avocadoes. Lot 6 was divided into Lots 6a, 6b, 6c and 6d. When Lot 6 was divided into four lots, the division of the lots was made so that the roadway was either a part of or adjoined each lot. Before Lot 6 was divided, the roadway was used by Whittier Extension Company for ingress to and egress from all parts of the lot for the pruning of trees, fertilization, irrigation, harvesting of crops, spraying, inspection and other work incidental to growing lemons and avocadoes.

In March, 1930, Whittier Extension Company conveyed Lot 6a to Cristine Drum. The deed reserved to the grantor the right to use as a roadway that portion of the previously constructed road lying within the grant and reserved the right to dedicate the roadway to the public for road purposes. The deed did not grant Cristine Drum any right to use that part of the roadway on Lots 6c and 6d. Respondent acquired Lot 6a by mesne conveyances from Cristine Drum. Appellants acquired Lot 6c in May, 1946, from Whittier Extension Company. The deed did not contain any reservation or mention of the roadway. Throughout the years a gate was maintained at the entrance to the roadway. At times it was torn down by trespassers, replaced until sometime in 1943, when because of lack of materials it could not be replaced. Appellants replaced it in 1946. On occasions through the years it was locked.

From Oak Cañon Drive the terrain slopes upward on all of the lots at a very steep pitch. To grow lemons and avocadoes the land was terraced along contours. There is evidence that it is practically impossible to get implements and materials necessary to the care and maintenance of the orchard on Lot 6a and to get fruit down to Oak Cañon Drive except by the roadway. From the time Lot 6a was acquired by Cristine Drum in 1930, the owners of that lot continued to use the roadway for the same purpose as it had been used by Whittier Extension Company. Respondent has so used it since 1940.

Appellants' principal contention is that the evidence does not support the findings. The claim is not tenable. The effect of the findings is that an easement was created by an implied grant. The entire lot—6—was owned by a common grantor. There was a separation of title. The roadway was constructed as a permanent road. Before the separation took place, the use (over Lot 6c) which gave rise to the easement had continued for 20 years. The use was open, visible and obvious. The easement was and is reasonably necessary to the beneficial enjoyment of the land granted. These facts are sufficient to support the findings and satisfy the requirements necessary to create an easement by implied grant.

The doctrine of implied easements includes existing servitudes, sometimes referred to as “quasi-easements.” It is well established that where, during unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another part, which servitude, at the time of a severance, is in use and is reasonably necessary for the fair enjoyment of the other part of the estate, then upon a severance of the ownership, a grant of the right to continue such use arises by implication of law. 17 Am.Jur. 945, sec. 33, and cases cited; 1 Thompson on Real Property, Perm.Ed., 636, sec. 392; Jones on Easements 104, sec. 129; annotation 26 L.R.A.,N.S., 316, 346; 136 Am.St.Rep. 693; 155 A.L.R. 543. This rule is ofttimes called the rule of visible easements. Annotation 155 A.L.R. 543. The rule is grounded upon the principle that all privileges as are obviously incident and reasonably necessary to the fair enjoyment of the property granted substantially in the condition in which it is enjoyed by the grantor are included in the grant. Philadelphia Steel Abrasive Co. v. Louis Gedicke Sons, 343 Pa. 524, 23 A.2d 490, 138 A.L.R. 776, 778; Talbert v. Mason, 136 Iowa 373, 113 N.W. 918, 920, 14 L.R.A.,N.S., 878, 125 Am.St.Rep. 259; Gorton–Pew Fisheries Co. v. Tolman, 210 Mass. 402, 97 N.E. 54, 55, 38 L.R.A., N.S., 882; Goodall v. Godfrey, 53 Vt. 219, 222, 38 Am.Rep. 671. The doctrine of implied easements is not restricted to ways of necessity. Venegas v. Luby, 49 N.M. 381, 164 P.2d 584, 587; Sievers v. Flynn, 305 Ky. 325, 204 S.W.2d 364; Freiden v. Western Bank & Trust Co., 72 Ohio App. 471, 50 N.E.2d 369; Clement v. Fishler, 28 Ohio App. 392, 162 N.E. 706, 707; Barrick v. Gillette, Tex.Civ.App., 187 S.W.2d 683, 687. An implied easement is to be distinguished from the specific principle under which a way of necessity arises. This because the rule of implied easements presupposes the existence of an obvious servitude or quasi-easement. Venegas v. Luby, supra.

The owner of an entire tract of land or of two or more adjoining parcels may employ a part of the land so as to create a seeming servitude, or a quasi-easement, in favor of another portion to which the use becomes appurtenant. If the quasi-dominant tenement is conveyed without express reference in the deed the quasi-easement is held to be impliedly granted by invoking the inference that the parties contracted with reference to the conditions of the property at the time of sale, that the grantor intended to convey a right to use the quasi-easement, and that the grantee reasonably expected to take and hold such right. Venegas v. Luby, supra, 49 N.M. 381, 164 P.2d 584, 586; Rischall v. Bauchmann, 132 Conn. 637, 46 A.2d 898, 901, 165 A.L.R. 559; Ferrell v. Durham Bank & Trust Co., 221 N.C. 432, 20 S.E.2d 329, 331; 28 C.J.S., Easements § 31, page 687; annotation: 8 A.L.R. 1368; 16 A.L.R. 1074; 32 A.L.R. 1347; 34 A.L.R. 233; 41 A.L.R. 1442; 56 A.L.R. 1138; 58 A.L.R. 824; 74 A.L.R. 1250; 100 A.L.R. 1321; 155 A.L.R. 543; 164 A.L.R. 1001; 165 A.L.R. 567. In applying the rule, the courts look to the nature, arrangement, and use of the land, the relation of its parts to each other and the degree of necessity for giving such construction to the grant as will give effect to what may be inferred to have been the reasonable intention of the parties. The parties having contracted with a view to the condition of the property as it actually existed at the time of sale neither party has a right thereafter, without the consent of the other, to change, to the detriment of the other, a condition which openly and visibly exists. Powers v. Heffernan, 233 Ill. 597, 84 N.E. 661, 16 L.R.A.,N.S., 523, 122 Am.St.Rep. 199; Irvine v. McCreary, 108 Ky. 495, 56 S.W. 966, 49 L.R.A. 417; Bowling v. Burton, 101 N.C. 176, 7 S.E. 701, 2 L.R.A. 285; 28 C.J.S. Easements § 30, page 686.

There are three elements necessary to create a quasi-easement by implication upon the severance of the unity of ownership in an estate. 1. A separation of title which implies unity of ownership at some former time as the foundation of the right. 2. Necessity that before separation takes place, the use which gives rise to the easement shall have been so long continued and obvious as to show that it was meant to be permanent. The servitude must be apparent, permanent, and of such character that it may be inferred that the owner desired its preservation as a servitude. 3. The easement must be necessary to the beneficial enjoyment of the land granted. Carmon v. Dick, 170 N.C. 305, 87 S.E. 224, 225; 3 Tiffany Real Property, secs. 781, 784–786; 1 Thompson on Real Property 661, sec. 405; 17 Am.Jur. 948, sec. 34, 951, sec. 41, 954, sec. 44; 28 C.J.S., Easements § 33, page 691. The requisite of necessity is not an absolute or strict necessity. A reasonable necessity is sufficient. Sievers v. Flynn, 305 Ky. 325, 204 S.W.2d 364, 366; Barrick v. Gillette, Tex.Civ.App., 187 S.W.2d 683, 687; Venegas v. Luby, 49 N.M. 381, 164 P.2d 584, 587; Rischall v. Bauchmann, 132 Conn. 637, 46 A.2d 898, 901; Fischer v. Hendler, 49 Cal.App.2d 319, 322, 121 P.2d 792. The authorities are legion which hold that if an owner who has used an apparent roadway over one parcel of his land for the benefit of another part conveys the part so benefited, a right to use the roadway passes by the conveyance by implication, it being reasonably necessary for the use and enjoyment of the property granted. See cases cited 17 Am.Jur. 955, sec. 44; 3 Tiffany Real Property 255, sec. 781.

The doctrine is codified in California. Civil Code section 1104 reads: “A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.” It is long established and fully recognized by a long line of decisions in this state. Cave v. Crafts, 53 Cal. 135, 139; Cross v. Kitts, 69 Cal. 217, 221, 10 P. 409, 58 Am.Rep. 558; Quinlan v. Noble, 75 Cal. 250, 252, 17 P. 69; Smith v. Corbit, 116 Cal. 587, 591, 48 P. 725; Jones v. Sanders, 138 Cal. 405, 411, 71 P. 506; Pendola v. Ramm, 138 Cal. 517, 520, 71 P. 624; Pogue v. Collins, 146 Cal. 435, 439, 80 P. 623; Jersey Farm Co. v. Atlanta Realty Co., 164 Cal. 412, 415, 129 P. 593; Cheda v. Bodkin, 173 Cal. 7, 13, 158 P. 1025; Southern Pac. Co. v. Los Angeles Mill. Co., 177 Cal. 395, 402, 170 P. 829; Vargas v. Maderos, 191 Cal. 1, 2, 214 P. 849; Silveira v. Smith, 198 Cal. 510, 516–519, 246 P. 58; Rodemeyer v. Meger, 30 Cal.App. 514, 516, 158 P. 1047; Kallenburg v. Long, 39 Cal.App. 731, 735, 179 P. 730; Palvutzian v. Terkanian, 47 Cal.App. 47, 52, 190 P. 503; A. Hamburger & Sons, Inc., v. Lemboeck, 20 Cal.App.2d 565, 568, 67 P.2d 380; Rosebrook v. Utz, 45 Cal.App.2d 726, 729, 114 P.2d 715; Fischer v. Hendler, 49 Cal.App.2d 319, 321, 121 P.2d 792; Greene v. Fickert, 49 Cal.App.2d 511, 516, 122 P.2d 93; Rees v. Drinning, 64 Cal.App.2d 273, 277, 148 P.2d 378; Navarro v. Paulley, 66 Cal.App.2d 827, 829, 153 P.2d 397; cf. Rubio Canon etc. Assoc. v. Everett, 154 Cal. 29, 32, 96 P. 811; Oliver v. Burnett, 10 Cal.App. 403, 406, 102 P. 223; Nay v. Bernard, 40 Cal.App. 364, 368, 180 P. 827. The principle underlying the doctrine was stated in the early case of Cave v. Crafts, supra, 53 Cal. 135, 139, to be: “that where the owner of two tenements sells one of them, or the owner of an entire estate sells a portion of it, the purchaser takes the tenement or portion sold with all the benefits and burdens that appear at the time of sale to belong to it, as between it and the property which the vendor retains.” It has been said that the doctrine “has become a rule of real property in this state as forceful as the rule in regard to the rights of lower riparian owners or the mutual obligations of coterminous owners.” Kallenburg v. Long, 39 Cal.App. 731, 735, 179 P. 730, 732. All of the elements essential to an easement by implication were established by the evidence. The quasi-easement which arose on the grant of Lot 6a to Cristine Drum passed to respondent. The easement is appurtenant to the land. Civ.Code, secs. 662, 801. An easement appurtenant inheres in the land, concerns the premises, pertains to its enjoyment and passes with the transfer of the title to the land. Civ.Code, sec. 1084; 17 Am.Jur. 933, sec. 12.

The conclusion of the trial court that the respondent has a right of way over the property in question is fully justified.

Appellants urge that the court should have restricted the use that respondent may make of the quasi-easement to that existing at the time of the severance of the quasi-dominant tenement from the quasi-servient tenement. The point is well taken. They also urge that having found that a gate or other barricade should be maintained at the entrance to the roadway, the court should have made provision therefor in the judgment. There is no such provision in the judgment. By the express provision of Civil Code, section 1104 the quasi-easement created upon severance is to use the property “in the same manner and to the same extent” as it was then “obviously and permanently used”. The rights of a person having an easement in the land of another are measured and defined by the purpose and character of that easement. Percy A. Brown & Co. v. Raub, 357 Pa. 271, 54 A.2d 35, 42; Dyer v. Compere, 41 N.M. 716, 73 P.2d 1356, 1358; 17 Am.Jur. 993, sec. 96; cf. Langazo v. San Joaquin Light & Power Co., 32 Cal.App.2d 678, 686, 90 P.2d 825. An easement implied from an existing use is subject to the conditions and burdens imposed upon it at the time of severance. Tunstall v. Christian, 80 Va. 1, 7, 56 Am.Rep. 581; Frawley v. Forrest, 310 Mass. 446, 38 N.E.2d 631, 138 A.L.R. 999, 1002. A quasi-easement is restricted to the servitude that exists when the owner effects the severance. McKeon v. Brammer, 238 Iowa 1113, 29 N.W.2d 518, 174 A.L.R. 1229, 1234. The owner of an easement cannot change the character of the servitude or materially increase the burden upon the servient estate. Fletcher v. Stapleton, 123 Cal.App. 133, 137, 10 P.2d 1019; Drake v. Russian River Land Co., 10 Cal.App. 654, 666, 103 P. 167. The basis of this rule is that a person who does not secure an actual grant for all purposes is not entitled to be put in a better position than to be able to enjoy that which he had at the time the grant was made. Ann.Cas.1914C, 476–478. The same rule applies to easements acquired by prescription. Allen v. San Jose Land & Water Co., 92 Cal. 138, 28 P. 215, 15 L.R.A. 93; Anderson v. Southern Cal. Edison Co., 77 Cal.App. 328, 335, 246 P. 559. A right of way for a particular purpose cannot be enlarged and used for any other purpose. What respondent's predecessor saw when she bought Lot 6a was merely a roadway used by the grantor solely for the care and maintenance of the orchard on the property and the harvesting of crops therefrom. It may not be inferred that she accepted a deed with any greater benefit than that of which her observation gave her notice. She is charged with notice of the true origin and history of the easement and can have no rights inconsistent with that origin and history.

The judgment is modified by adding the following thereto:

The plaintiff's use of that portion of said roadway as lies upon Lot 6c of Tract 9211 is limited and restricted to the care and maintenance of orchards on Lot 6a of Tract 9211 and the harvesting of fruit therefrom.

It is further ordered that the plaintiff and the defendant maintain a gate or other barricade at the Oak Cañon Drive entrance to said roadway.

The appeal from the order denying the motion for a new trial is dismissed. The judgment, as thus modified, is affirmed. The respective parties shall bear their own costs on appeal.

VALLÉE, Justice.

SHINN, P.J., and WOOD, J., concur.

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