California Surveyors Forums

I have a project where a husband and wife own a parcel “as joint tenantsâ€￾ and another adjacent parcel where the wife owns the parcel as “sole and separate propertyâ€￾. An “Agreement for Sale and Purchase of Waterâ€￾ exists between the two parcels, whereas the “as joint tenantsâ€￾ parcel is servient to the “sole and separate propertyâ€￾ parcel. The physical nature of the usage of the water from the servient property was for irrigation purposes and when I say “irrigationâ€￾, I use the term loosely. Historically, these properties have not been in any kind of in any kind of “conventionalâ€￾ agricultural production. The dominant tenement has its own domestic water supply and is in no way dependent on the agreement in question to provide a sustainable source of water. The owners would like the agreement to be extinguished. I have asked the title company about the agreement and it’s nature as to extinguishment. Their reply to me was that if the owners wanted it unencumbered from the servient tenement, they would have to merge the parcels and then quitclaim the agreement amongst themselves. This solution sounds rather absurd to me…

Does the fact that the servient and dominant tenements are owned by the same person (the wife), by way of unity of title, extinguish this agreement? Or, does the fact that title is “as joint tenantsâ€￾ for the servient tenement and “sole and separate propertyâ€￾ for the dominant tenement bar extinguishment? Simply put; The servitude is from and to the same person (the wife). Why wouldn’t the agreement be extinguished by unity of title?

I have read through Zanelli v. McGrath and the crux of the judgment was that unity of title did exist in that case whereas the title to the servient tenement was “as joint tenantsâ€￾, but title to the dominant tenement was a 50/50 undivided interest. A bit of a distinction in my project, but if I am understanding the rationale in the Zanelli v. McGrath judgment, I have a situation where unity of title does exist and thereby extinguishing the agreement.

What say you?

That is how I have heard this situation described and I have used it a few times for my clients. Here is how the California Guide to Real Property Transactions defines it:

[4:102.30] Termination of easement by merger of estates: An easement is extinguished under the doctrine of merger when the right to the easement and right to the servient tenement vest in the same person (or group of persons). In other words, when the burdens and benefits are united through common ownership in a single person (or group of persons), the servitude ceases to have any function and therefore terminates. [See CC § 811; Rest.3d Property, Servitudes, § 7.5, comm. a; and Zanelli v. McGrath (2008) 166 CA4th 615, 625–630, 82 CR3d 835, 842–847—view easement extinguished by merger when cotenants acquired all interests equally in dominant and servient tenements]

My opinion is that since the two parcels are not owned by the same group of persons, the right is not extinguished.

Why not quitclaim the wife's parcel into the same ownership as the other parcel or quitclaim the water rights back to the servient parcel?

Since the vesting is not identical (and it appears intentionally so) there is no unity of title. An attorney or a better title company will have to help you with how to rescind/void/annul/cancel the agreement.
Chris

Sounds like the title company is lumping two options to extinguish the easement into a single required action. As the others said, merging the parcels or quitclaiming the agreement should be sufficient to extinguish it. However, I am not up on water rights, so maybe there is more to it for that reason.

a RELINQUISHMENT of an easement or any other servitude by one property upon another property, with very few exceptions, can be permanently revoked, relinquished, extinguished, etc., by a simple instrument releasing said servitude signed by the owner of the servitude. It is not complicated.