Is this easement excclusive or non-exclusive?

[Ian Wilson]

Ok, Gentlefolk, I have a question for the forum.

I have a deed which reads “…and easement for ingress, egress, road an utility purposes over and across the southerly 30.00 feet of the northerly 184.00 feet of that portion of Section X, Township Y South, Range Z East, SBM lying westerly of the westerly lines of Parcels 5 through 8 as shown on Parcel Map recorded Month Day, 1070 in Book A Page b Records of Riverside County, California, excepting therefrom the westerly 305.00 feet.â€￾

This easement, when plotted, extends from a publicly dedicated dirt road on the east to my client’s parcel and continues well beyond the westerly border of my client’s parcel. It should also be noted that a dirt road fitting this description has been in existence for more than 30 years.

The question I have is this: without any indication of the fact that the easement is either exclusive or non-exclusive, can I interpret this description as that of a non-exclusive one?

If the easement is interpreted as a non-exclusive one, eleven parcels comprising over 40 acres do not have a legal form of access.

Without resorting to getting all eleven property owners to cross-grant easements and or public road dedications and without having to resort to a title action to claim prescriptive rights of access, do these people have access over the road covered by the description above?

[Ian Wilson]

Ah, PLS, you've hit a nail on the head!

Unfortunately there isn't a single Parcel Map in the entire Northwest Quarter of the section. The parcel map referred to in the description lies in the Northeast Quarter and abuts the Northwest Quarter.

All of these parcels were created prior to March 4, 1972, by deed. In fact, a majority of the deeds were recorded on March 2 and March 3 of 1972!

[Ric7308]

Off the top of my head, I think you could consider the easement to be private and exclusive to the eleven parcels for the use(s) specified.

I know you probably have already thought of this, but how is the easement referenced in the title reports for the those parcels?

Ric

[Ian Wilson]

It's not, Ric. In fact, the PTR prepared for the CofC requested bny my client specifically excludes the fact that there is no apparent access. The easement described above was part of the description for a client of my immediately to the south of this current client!

[E_Page]

Correct me if I'm wrong, but if an easement is exclusive, doesn't that mean that no other rights may be granted over the same piece of ground?

As I understand it, if an easement is not declared exclusive in the granting document, then it isn't. In this case, access or utility rights, or whatever may be granted to others over the same piece of ground as long as the newly granted rights do not unduly interfere with existing granted rights.

In this case, unless your client and the other 10 landowners otherwise landlocked do not have an easement granted to them in their title somewhere, I'd think that they do not have clear written rights to that easement.

That is not to say that they do not have rights otherwise. Without knowing any more detail, I'd say that if they've used the easement continually for 5 or more years, they have those rights by prescription, but some action such as the granting of cross easements, quiet title, etc., needs to happen to clear it up.

[Ric7308]

So, if I understand you correctly, according to the PTR your client's parcel is encumbered by an easement that the underlying fee owner has no rights to.

If the adjacent parcel to the south references the easement...which I am still trying to visualize, because you stated that the easement crosses your client's parcel east to west...there is a chance that other parcels reference the easement.

Have you considered taking testimony from most if not all the "apparent" easement "users"? How about researching your client's deed back to see if the easement was dropped off? Also, researching the other parcels for evidence of the easement? If the easement is reflected on the majority of the those titles, that could be considered strong evidence that the easement was not intended to be exclusive.

Evan, I believe you can have multiple exclusive rights crossing the same fee, as long as the rights don't interfere with each other. Its only the rights that are exclusive, not the actual fee.

[Ian Wilson]

Exclusivity in an easement does not mean that others may not also have the same or similar rights to the same patch of ground. It refers to the fact that others may be excluded from using the easement.

The dirt road runs east-west from a dedicated road along the easterly side of the northwest quarter of the section.

The property in question, my client’s, as well as the other 10 parcels that abut this existing dirt road were all created on or about March 2 and 3 of 1972. They were created in a mad rush to subdivide most of the southerly portion of the quarter section. The deeds all read "...the east 403 feet of the west 1880 feet of the southerly 233 feet of the northerly 1880 feet of the northeast quarter of Section...", or similar. Not one of those deeds carried any mention of access or a description of the road, with the exception of my original client, the owner of a parcel to the south of my current client. We have been unable to find any other reference to this dirt road from the original deeds creating this morass of ten parcels to the present deeds.

Somehow, my original client’s deed, and all the deeds from the creating deed for his parcel, have all carried the description of this dirt road. His access easement also flows across my current client’s property along her easterly side.

Of course, the deeds for this area were purported to have been prepared by the then owner. This is a perfect example of why the Subdivision Map Act came into being in the first place.

The argument I am about to make to the Title Company is that the easement exists because it appears in my original client’s deeds. The dirt road exists and has existed for 30 years or more. The Title Insurance Company can insure over the access because it is there, it is defensible and it is insurable.

Then, assuming that the Title Company buys into my argument, I will approach the county with the fact that the history is what it is and the Title Company is willing to insure the access, even though it is by easement and not dedicated road. With a deed in hand dated prior to March 4, 1972 and a PTR insuring access over the easement road, we should be on our way to a CofC.

I might add that the Title Insurance Company is one of the most competent in our area and the one I prefer to use above all others. They have people who understand discussions such as this one. Together, we have dealt with a number of “difficult” problem parcels in the past.

[E_Page]

"Exclusivity in an easement does not mean that others may not also have the same or similar rights to the same patch of ground. It refers to the fact that others may be excluded from using the easement."

Isn't that kind of saying the same thing two different ways?

[Ian Wilson]

Not really, Evan. You and I can both agree to exclude all others from my property here in Temecula. I own the parcel; you have an easement. We exclude everyone else.

The right to exclude others is one of the most significant rights of ownership of land.

In a non-exclusive situation, we have an easement over which we may not exclude anyone. A public road is an example of this.

That's the gist of the question I'm asking. Does Jon, my first client, have an exclusive right or a non-exclusive right to the access easement for his property. If its exclusive, no one else can use it. If its non-exclusive, the access problem for Bob, my current client, is quickly and easily solved.

[goodgps]

Ian,

I ran across this very same problem a few years ago when an owner created a "subdivision" by deeded parcels and indicated ac access easement on an existing dirt road.

One of the lot owners decided to gate his roadway. He claimed there was no legal easement exclusive or non, to cross his property.

The neighbors sued him and won hands down.

The court sited 1. Prescriptive easement by use since creation of the lots.
2. implied non-exclusive easement as it was shown on an assessors plat (penciled in) said document made part of each lot sale.

This non-mapped subdivision was and still is an absolute mess.

Without any evidence, I agree withthe others whereas the easement is either non-exclusive, or exclusve only to those it serves to its points of terminous.

BOB has access

[Ian Wilson]

Excellent discussion, my friends! Excellent discussion.

Godd, I agree with you, Bob has access. Now all we need to do is get the title company on board and then the county.

Dave: most beneficial citation!

Thanks all! And keep 'em coming!

[bwatkins]

I would have to see the deed in question to be sure, but based on "…and easement for ingress, egress, road an utility purposes etc", I think it could be argued that the easement is exclusive to the property being granted in the deed. Is this the only deed that reference this easement? Did this deed create the easement? (Does it read "and easement" or "and an easement"?) Others may have rights by use, but the original deed you referred to probably doesn't give them rights to the easement.

[Ben Lund]

In review (for my sake), 11 parcels are officially landlocked. They do not have access to their respective parcels either through a private easement or public right of way. There is only one happy dominant tenement and many servient tenements of the existing ingress and egress easement. Currently (and for the last 30 years), the 11 parcels use the existing dirt road that matches the description of the easement.

The solutions:
1. Claim prescriptive rights to the existing easement through a title action claim
2. All parties necessary grant easements to provide access to the 11 parcels
3. Get the Title Company to insure access to the land locked parcels by adding the easement to title for the 11 parcels

I can see why the title company is hesitant to add the easement to the ownership rights of the 11 parcels. If I’m the title company, what is my motivation to do this?

I agree with bwatkins.

[Ian Wilson]

*****In review (for my sake), 11 parcels are officially landlocked.

Not quite. There are eleven parcels. Six parcels lie to the north and five parcel to the south of a dirt road which has existed for over thirty years. The south half of the entire length of the dirt road is described in a single deed to a parcel that does not abut this road. This access is in conjunction with an easement over the easterly portion of the most easterly lot along the south side of the dirt road.

Whether the parcels are landlocked is the heart of the question at hand. If the easement is exclusive, then all the parcels are land locked. If the easement is not exclusive, the parcels are not land locked.

*****The solutions:
*****1. Claim prescriptive rights to the existing easement through a title action claim

Expensive court action that will cost a minimum of $25K to my client. My client is elderly and wished to get this taken care of in a timely manner. At 84 and in failing health, she does not have the time neccessary to mount such a case regardless of the fact that it is a virtual certainty that it would be successfull.

*****2. All parties necessary grant easements to provide access to the 11 parcels

An equally expensive solution that relies upon the good will of all parties involved. Note that these parcels abut a dirt road. Dirt roads usually occur in less developed areas inhabited by owners who do not wish to live in suburbs or urban areas. The likelihood of all eleven owners agreeing to anything is virtually nil.

*****3. Get the Title Company to insure access to the land locked parcels by adding the easement to title for the 11 parcels

This is exactly my solution.

*****I can see why the title company is hesitant to add the easement to the ownership rights of the 11 parcels. If I’m the title company, what is my motivation to do this?

The motivation is rather simple. They get nailed to the wall for the costs to correct this mess in court. They issued title insurance. That is exactly what title insurance is for.