Murphy v. Burch 11/19/07 CA1/2

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A117051

Case Date: 02/27/2008

Preview:Filed 11/19/07

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

CHERYL MURPHY, Plaintiff and Respondent, v. ROGER BURCH, et al., Defendants and Appellants. (Mendocino County Super. Ct. No. SCUK-CVG-0493420) A117051

I. INTRODUCTION Appellants Roger and Michele Burch appeal from a judgment of the Mendocino County Superior Court which held, on facts stipulated by the parties, that an easement by necessity existed across property owned by them in favor of plaintiff and respondent Cheryl Murphy (as trustee of the "Murphy Children Education Trust"), the owner of neighboring property which lacks access to a public road. We disagree and hence reverse. II. FACTUAL AND PROCEDURAL BACKGROUND As already noted, the parties stipulated to the facts in this case. As pertinent here, they are as follows: Prior to 1876, all of the properties involved in this case were owned by the federal government. In that year, the first of several parcels now making up the Burch property was deeded, by federal government patent,1 to one of the several predecessors in interest to the Burches. Between then and 1929, all the remaining properties now comprising the Burch property were likewise deeded to private owners by the federal government; by 1929, the Burches' predecessors in interest owned all the property the

"A patent is defined as: `. . . [a] grant made by a government that confers on an individual fee-simple title to public lands.' " (Kellogg v. Garcia (2002) 102 Cal.App.4th 796, 800, fn. 1 (Kellogg).) 1

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Burches presently own. The other property, the parcel now owned by respondent Murphy, was still owned by the federal government. However, that situation changed three and a half years later, on December 28, 1932, when the federal government granted to one John Bridges, again by patent, the property that now comprises the "landlocked" four parcels making up the Murphy property. After eight prior transfers of title starting in 1933, Murphy's trust purchased the property in 1998. At the time of the 1932 conveyance to Bridges, Murphy's predecessor in interest, the federal government's patent grant did not include any grant of an easement over the access road from that property to the nearest public road, State Highway 162. There was such an access road, but it ran across the neighboring property, then owned by the Burches' predecessor in interest. At no time in the past had there been any express grant of an easement from what is now the Murphy property over what is now the Burch property to that state highway. Nor, per the parties' stipulation submitted to the trial court, had there been an acquisition of an easement by prescription in favor of what is now the Murphy property. The Murphy property was, therefore, "landlocked" without any express or prescriptive easement across the neighboring Burch property to the state highway. In October 2002, the Third District Court of Appeal decided Kellogg, supra, 102 Cal.App.4th 796, a case which will be discussed in detail below. Based on, and indeed citing that decision, in 2003 respondent Murphy's counsel wrote to all the property owners along the access road requesting that they deed to her access across their property on the access road pursuant to the decision in Kellogg.2 Several of the other property owners settled this issue with Murphy out of court, but the Burches (and apparently the owners of two other parcels) declined this request. On October 15, 2004, Murphy filed the present quiet title action against them. The Burches answered that complaint and cross-complained against Murphy to quiet title to the easement; this cross-complaint was, in turn, answered by Murphy. The owners of the other two parcels named in the action settled with Murphy.

The facts stated immediately preceding this footnote are not included in the parties' stipulated facts; they are, however, in appellants' opening brief to us, and are not disputed by respondent. 2

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The stipulated facts were submitted to the court on April 18, 2006, and both parties thereafter submitted briefs on the issue of the existence of an easement by necessity in favor of Murphy over the Burch property. On August 7, 2006, the case was argued before the trial court, which issued its tentative decision in favor of Murphy on October 26, 2006. No statement of decision was requested or issued and, on November 29, 2006, judgment in accordance with the tentative decision was issued in favor of Murphy. The Burches filed a timely notice of appeal. III. DISCUSSION A. The Issue Presented and Our Standard of Review. Bearing in mind the parties' stipulation to the relevant facts, the issue before us is clear: did the patent conveyances by the federal government to, first, the various predecessors in interest to the Burch appellants and, three and a half years later, to the predecessor in interest to respondent Murphy include an easement by necessity over the former property in favor of the latter property? Equally clear is that this is purely an issue of law entitled to de novo review by us. (See, e.g., Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 437-438, and authorities cited therein.) B. California Law Regarding Easements by Necessity. The parties properly devote much of their briefs to us debating which of two recent appellate decisions (and, in some respects, how much of each) governs the outcome of this appeal. These decisions are Moores v. Walsh (1995) 38 Cal.App.4th 1046 (Moores), a decision by our colleagues in Division Three of this court, and Kellogg, supra, 102 Cal.App.4th 796, a decision by the Third District Court of Appeal. Both cases involved, as does the present one, parcels of major blocs of land owned in the 19th century by the federal government. Before getting to those cases, however, a brief general outline of California law relating to easements by necessity, in cases where there was no prior federal land ownership and patent grant, is appropriate. That law is best summarized in two decisions by other divisions of this court. The first, chronologically is Reese v. Borghi (1963) 216 Cal.App.2d 324, 332-333 (Reese),

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where Justice Sullivan, writing for a unanimous Division One of this district, stated: "The California rule is settled that a right-of-way of necessity arises by operation of law when it is established that (1) there is a strict necessity for the right-of-way as when the claimants' property is landlocked [citations] and (2) the dominant and servient tenements were under the same ownership at the time of the conveyance giving rise to the necessity." This statement was elaborated upon in a decision by then-Presiding Justice Anderson of Division Four of this district, Roemer v. Pappas (1988) 203 Cal.App.3d 201 (Roemer). There, the court affirmed a judgment of the Contra Costa County Superior Court that an easement of necessity had been created over the land of the appellant because of the satisfaction of the two requirements for such an easement set forth by the Reese court, namely, prior common ownership and the existence of necessity. Regarding the first requirement, the Roemer court stated: " ` "A way of necessity is an easement arising from an implied grant or implied reservation; it is of common-law origin and is supported by the rule of sound public policy that lands should not be rendered unfit for occupancy or successful cultivation. Such a way is the result of the application of the presumption that whenever a party conveys property, he conveys whatever is necessary for the beneficial use of that property and retains whatever is necessary for the beneficial use of land he still possesses. . . ." ' [Citation.] The philosophy behind this presumption is that the demands of our society prevent any man-made efforts to hold land in perpetual idleness as would result if it were cut off from all access by being completely surrounded by lands privately owned. (Reese[, supra,] 216 Cal.App.2d 324, 331 . . . .) [

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