There Are Different Types of Easements

In the recent case of Hinrichs v. Melton, the Court of Appeal held that the trial court did not abuse its discretion by awarding plaintiff an equitable easement--based on a balancing of hardships--over a small portion of defendant's property based on evidence that defendant did not use that portion, and that the easement would allow plaintiff to access a third-party property over which he would have an easement by necessity.

This case illustrates that there are several types of easements available, including an equitable easement, prescriptive easement, and easement by necessity, and some may be extinguished by adverse possession.  The dominant property is the property benefiting from the easement, and the servient property is the property subject to the easement.

The trial court has discretion to grant an equitable easement where the hardship to the party seeking the easement is greatly disproportionate to the hardship caused to the servient owner over whose property the easement is granted.  The court should consider whether the need for the easement is the result of the willful act of the party seeking the easement, and whether the servient property owner will suffer irreparable injury by the easement.  Such an easement often involves a preexisting use of the servient owner’s property, but the argument that only a long-standing encroachment will justify the creation of an equitable easement has been rejected.  There is no authority that requires a prior use as an element of an equitable easement.

The elements of a prescriptive easement are open and notorious adverse use of the land of another that is continuous and uninterrupted for the five-year statutory period. The burden of proof is on the party asserting the prescriptive easement, and it is for the trier of fact to determine whether the elements of a prescriptive easement have been established. The typical main issue is whether there is sufficient proof of the hostile adverse use of the land, and permission to use the land defeats a prescriptive easement.

However, an easement may be extinguished by adverse possession by the owner of the servient estate. The elements of adverse possession are: actual possession under circumstances as to constitute reasonable notice to the owner; possession that is hostile to the owner’s title under claim of right or color of title; continuous and uninterrupted possession for five years; and the payment of all taxes assessed on the property. The circumstances that constitute reasonable notice to the owner are sometimes described as possession that is open, notorious and visible. The owner of the servient estate must use his land in a manner that is adverse to the exercise of the easement. Hostility does not require a dispute, and it only requires that claimant’s possession be adverse to the easement holder, unaccompanied by any recognition of the easement holder’s rights, express or inferable from the circumstances.  

In Hinrichs, the servient owner used large boulders and a barbed wire fence that blocked the entrance to the trail that was claimed as the easement, and the Appellate Court held that is “more than adequate to give notice” that the landowner was adversely possessing whatever easement might exist over the trail.  This illustrates the value of defining the borders to land with a physical structure such as a fence or wall.

A third type of easement is an easement by necessity that requires a unity of ownership of the dominant and servient parcels at the time of a conveyance, and strict necessity for a right of way because the conveyance left the dominant parcel landlocked. An easement by necessity cannot be extinguished as long as the necessity exists, and the five-year statute of limitations on quiet title actions found in Code of Civil Procedure section 318 does not apply to an easement my necessity.

The unique circumstances of a case can give rise to many issues regarding easements and their extinguishment, and need to be carefully examined in light of the law to determine the rights of the respective parties.