August 2017 Update
Supreme Court Cases. The California Supreme Court ruled that CC §1009 prevents use of private property (other than coastal property, as defined in the statute) by members of the public for nonrecreational as well as recreational purposes from ripening into prescriptive rights, resolving a split in the courts of appeal. See Scher v Burke (2017) 3 C5th 136, cited in §§1.32, 1.42, 7.11, 9.25.
An entity contemplating the acquisition of property by eminent domain may petition the superior court for an order allowing it to enter the property to take photographs and conduct studies, tests, surveys, and similar activities. The constitutionality of those statutes authorizing the entry was upheld by the supreme court in Property Reserve, Inc. v Superior Court (2016) 1 C5th 151, which reformed CCP §1245.060(c) to give the property owner an option for a jury trial on the measure of damages provided in that section. See §§1.43, 1.76, 4.5.
In City of Perris v Stamper (2016) 1 C5th 576, a case arising from a city's condemnation of land for a road as an alternative to dedication pursuant to the permit process, the supreme court considered the constitutional analysis imposed by precedent that a dedication requirement (1) have an essential nexus to the valid public purpose that would be served by denying the development permit outright and (2) be roughly proportional to the impact of the proposed development. The court ruled that the essential nexus and rough proportionality inquiries are properly decided by a court, not by a jury. See §7.13.
Equitable & Prescriptive Easements. Another court of appeal has recognized that the equitable easement doctrine may be used not only as a defense against actions for removal of an encroachment or injunction against trespass, but also affirmatively as the basis for a judgment declaring the existence of an easement. See Hinrichs v Melton (2017) 11 CA5th 516 (equitable easement granted to plaintiff over small part of neighboring property; plaintiff also had connecting easement by necessity over another neighboring parcel even though there was no prior history of use over these neighboring parcels for access; plaintiff's property would otherwise be landlocked). See §§1.23, 1.44, 1.63, 1.69, 1.75, 8.24—8.25, 8.39, 10.48, 10.50, 10.67, 10.96.
California easement by prescription law is founded entirely in the common law. For a discussion of the burden of proof required to establish prescriptive easement rights, see Vieira Enters., Inc. v McCoy (2017) 8 CA5th 1057 (clear and convincing evidence not required). See §§1.32—1.33, 1.63, 1.69, 1.76, 8.22, 9.23, 10.67.
Civil Code §1009 applies prospectively and does not restrict application of the Gion rule to claims preceding its operative date in 1972. See Friends of the Hastain Trail v Coldwater Dev., LLC (2016) 1 CA5th 1013 (trial court applied ruling in Gion to consider public's use of fire road easement between 1967 and 1972 and declared public trail easement was established by implied dedication through defendants' property for hiking, jogging, and dog-walking, but court of appeal concluded public's hiking use of fire road was insufficient to place predecessors on notice of risk of implied dedication). See §§1.42, 7.11, 8.43A.
When balancing the hardships to the parties in an equitable easement case, the easement will not be granted if the encroachment is willful or negligent. Nellie Gail Ranch Owners Ass'n v McMullin (2016) 4 CA5th 982 (defendants knew they were building on plaintiff's land). See §§1.44, 8.22, 8.24, 10.50.
Water Rights & Public Trust Doctrine. By legislation, "the use of water for domestic purposes is the highest use of water" in California and "the next highest use is for irrigation." Wat C §106. But this policy does not apply to use or allocation of water that is governed by federal treaties with Native American tribes. See Agua Caliente Band of Cahuilla Indians v Coachella Valley Water Dist. (9th Cir 2017) 849 F3d 1262 (state groundwater rights preempted by federal reserved rights and not subject to appropriation under state law). See §§3.13A, 3.22.
Although Wat C §106 firmly establishes that domestic water use "is the highest use," a water district that sells groundwater may charge a municipality a higher fee per unit for water used for domestic purposes than it charges for water used for agricultural purposes. Whether such extraction fees constitute property-related fees subject to Proposition 218 (Cal Const art XIIID) is currently under review by the supreme court in City of San Buenaventura v United Water Conserv. Dist. (review granted June 24, 2015, B251810; superseded opinion at 235 CA4th 228). See §3.13A.
Because of higher levels of water in the state due to increased snow and rainfall between 2016 and 2017, Governor Brown, on April 7, 2017, signed Executive Order B—40—17, terminating the January 17, 2014, Drought State of Emergency, but this order did not apply to the counties of Kern, Fresno, Tulare, and Tuolumne. See §3.13B.
The State Water Resources Control Board has broad management authority over groundwater use and conservation; new regulations on groundwater sustainability were issued by the Board in June 2016. See §3.13D.
The State of California holds tidelands and navigable waters in trust to preserve these resources for public purposes. Navigable waters are also subject to federal environmental law; an individual has standing to pursue a claim against a noncompliant landowner if the individual can demonstrate he or she has been injured because of violations of environmental laws. California Sportfishing Protection Alliance v River City Waste Recyclers, LLC (ED Cal 2016) 205 F Supp 3d 1128. See §3.20.
Federal regulations to clarify the definition of "waters of the United States," published in June 2015, were stayed nationwide in Ohio v U.S. Army Corps of Eng'rs (In re EPA & DOD Final Rule) (6th Cir 2015) 803 F3d 804. Following that, President Trump issued Executive Order No. 13778 (Feb. 28, 2017) directing the responsible agencies to reconsider the narrower interpretation of "waters of the United States" under Supreme Court precedent and to rescind or revise the 2015 regulations accordingly. See §3.20.
The California Supreme Court is reviewing Lynch v California Coastal Comm'n (review granted Dec. 10, 2014, S221980; superseded opinion at 229 CA4th 658) (court of appeal opinion declared unconstitutional "expiration condition" on seawall construction permit because it essentially required homeowners to convey to Coastal Commission negative easement across their bluffs without compensation). See §3.22A.
Utility Easements & Liability. Permanent rights-of-way over public land for utility purposes are usually subject to environmental impact review primarily under the National Environmental Policy Act of 1969, but other federal laws may also apply. See Protect Our Communities Found. v Jewell (9th Cir 2016) 825 F3d 571 (government agency not liable under conservation statutes for its regulatory decision to grant right-of-way, subject to numerous mitigation measures, for development and operation of renewable wind energy project). See §4.18A.
When underground utility facilities (i.e., subsurface installations) exist, farming activities, trenching, construction excavation, and other digging activities may present a hazard to public safety, the utility facilities, or both. A system to notify of the intent to excavate and to determine the location and depth of all subsurface installations within the area of a planned excavation is established under Govt C §§4216—4216.24, which were substantially amended in 2016. See §5.9.
In Wilson v Southern Cal. Edison Co. (2015) 234 CA4th 123, the jury found in favor of plaintiff on her claims for intentional infliction of emotional distress, negligence, and nuisance because the defendant failed to properly supervise, secure, operate, maintain, or control the electrical substation next door to plaintiff's home, allowing uncontrolled stray electrical currents to enter the home. See §5.10.
Conservation Easements & Deductibility. A detailed checklist to assist attorneys in negotiating and drafting conservation easements was added to chap 6. See §6.1A.
Until January 1, 2020, a city or county must charge the owner a rescission fee of 10 percent of the fair market value of the property at the time of the conversion of land protected under the Williamson Act to a solar-use easement project. Govt C §51255.1(c). See §6.8B.
Greenway easements are different from traditional conservation easements in substantial ways; in addition to promoting preservation of land in its natural condition, greenway easements are intended to (1) encourage development of greenway corridors adjacent to urban waterways consistent with restoration efforts made at those waterways at the time of the creation of the easement and (2) preserve existing greenways adjacent to urban waterways under CC §§816.50, 816.52(c). See §§6.8C.
Grantors of conservation easements must initially have a legally cognizable interest in the property in order to realize income tax deduction benefits for donating the easement. RP Golf, LLC, TC Memo 2016—80. See §6.15.
Under Treasury Regulations, inconsistent use of the donated easement is prohibited, and a tax deduction will not be allowed if the easement would accomplish one of the enumerated conservation purposes but would permit destruction of other significant conservation interests. In John A. Atkinson, TC Memo 2015—236, the court concluded that the manner of operating a golf course could cause the naturally occurring ecosystem to be injured or destroyed because the petitioners sprayed pesticides, insecticides, fungicides, herbicides, and fertilizers on nearly 63 percent of the easement area. See §6.15.
No deduction is allowed for a conservation easement on property that is subject to a mortgage, unless the mortgage lender subordinates its rights in the property at the time of the easement donation to the right of the grantee or qualified organization to enforce the conservation purposes of the easement. Minnick v Commissioner (9th Cir 2015) 796 F3d 1156, 1160; RP Golf, LLC, TC Memo 2016—80. See §§6.15, 6.30.
Street, Trail & Road Easements. A public entity may remove an encroachment installed by a private landowner without a permit. See Jamison v Department of Transp. (2016) 4 CA5th 356, 366 (private drainage improvements in state highway easement required encroachment permit). See §7.29.
The issuance of a Notice of Interim Trail Use (NITU) permits a railroad with an easement to discontinue service, cancel tariffs, and salvage track and other equipment; the NITU extends indefinitely to permit interim trail use of the easement and may trigger a compensable taking from the property owner, even if no trail use agreement is ultimately reached; in that event, the taking is temporary and such physical takings are compensable. James v U.S. (2017) 130 Fed Cl 707. See §7.71.
Some courts held that a railroad easement is not terminated on a rails-to-trails conversion, but the easement continues in existence. Further, the easement may be used by the trail operator as the basis for granting rights to third parties within the easement area, including those portions of the subsurface below (and the airspace above) the right-of-way traditionally within the scope of the easement. See Hornish v King County (WD Wash 2016) 182 F Supp 3d 1124; Kaseburg v Port of Seattle (WD Wash, Aug. 23, 2016, No. C14—0784 JCC) 2016 US Dist Lexis 112967, cited in §7.71.
On calculating attorney fees in NITU cases, see Haggart v Woodley (Fed Cir 2016) 809 F3d 1336 (fee award governed by 42 USC §4654, not by common fund doctrine). See §7.71.
When a broadly drafted grant of a railroad easement allows "for such other purposes" as the railroad company and its successors desire to make of it, it is broad enough to encompass the use of the property for a park, but when the deed results from a condemnation and conveyed only a "right-of-way," the grant is an easement only for railroad purposes. Hardy v U.S. (2016) 129 Fed Cl 513. See §7.71.
If the scope of the rail easement that is the subject of the trail conversion is sufficiently broad, the trail operator may have the right to grant rights-of-way to third parties for incidental uses as long as they are consistent with trail use and the operation of a railroad. Kaseburg v Port of Seattle (WD Wash, Oct. 23, 2015, No. C14—0784 JCC) 2015 US Dist Lexis 144529 (trail operator had right to grant licenses to light rail transit authority and electrical utility within right-of-way). See §7.71.
Easements & Licenses for Recreational Use. Civil Code §846 immunizes both owners and easement holders from third party personal injury liability arising from recreational use of the property. An exception under §846 exists when consideration was paid in return for permission to enter the property. A court of appeal ruled that this exception did not apply to a utility company that had a license to maintain its distribution lines and the vegetation in the vicinity of its lines in a county park, even though the injured party's entrance fee to the park was paid to the county, not the licensee. PG&E v Superior Court (2017) 10 CA5th 563. See §8.29.
A court of appeal held that §846 shields owners from liability when recreational users of their property cause injury to persons who are outside the property and uninvolved in the recreational use. Wang v Nibbelink (2016) 4 CA5th 1 (plaintiffs were injured by horse that ran away from meadow owned by defendants, who gave their permission for third party event on meadow but did not organize, supervise, or observe event). See §8.29.
Tree Damages & Liability. California statutory law generally provides for double (and possibly treble) damages for injuries to trees inflicted by neighboring owners. In addition to economic damages, the multiplier also applies to annoyance and discomfort damages resulting from the tree damage. See Fulle v Kanani (2017) 7 CA5th 1305, cited in §8.30.
Because there is no general easement right for light and air under California state law, a tree's mere interference with a view or light and air, or the tree's blockage of the sun, is not a taking or a nuisance under state law. Boxer v City of Beverly Hills (2016) 246 CA4th 1212. See §§8.30, 10.43.
Litigation of Easements & Neighboring Property Rights. A detailed checklist to assist attorneys in negotiating and litigating boundary location and encroachment disputes was substantially revised in §10.11.
Chapter 10 was enhanced with a discussion of private parties enforcing land use and other ordinances when neighboring property owners have violated such ordinances; private parties can bring a "writ" action against a local entity under CCP §1094.5 after exhausting administrative remedies or file an action under Govt C §36900(a), which courts have interpreted to allow a private right of action against adjacent owners to redress violations of local ordinances. See §10.16.
A newly added attorney-drafted complaint form for damages and rescission resulting from the nondisclosure of an easement is in §10.59B. For new complaint forms with multiple alternative causes of action, including relief in the form of an equitable easement, see §§10.59C—10.59D.