Cushman v. Davis

California Court of Appeal May 8, 1978 No. Civ. 41178Published

Before: Jenkins

AI Brief

AI-generated · verify before citing

Holding. The court held that while the appellant acquired a prescriptive easement for agricultural purposes, he could not expand that use to include residential development because such an increase would constitute an unreasonable burden on the servient tenement. Furthermore, the court found no evidence of a public dedication of the road.

Issues

Whether an easement was appurtenant or in gross.
Whether a prescriptive easement for agricultural use can be expanded to allow for residential subdivision development.
Whether the requirements for common law dedication to the public were met.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The burden of overcoming the inference of appurtenancy is not met, and D did not have an easement in gross which his successor Western Title could deed to A.”

“The use by A’s predecessor D, and A (if any) was purely agricultural or for sightseeing, only occasional and never residential.”

“The court below having made these same determinations, supported by substantial evidence, its judgment must be affirmed.”

Opinion

JENKINS, J.

This is a classic hornbook case. Concepts of easements “appurtenant” or “in gross,” and “dominant” versus “servient” tenements, which were mystifying in law school, the bane of bar examinations, and buried during long legal and judicial careers, now surface.

A [appellant] owner of Blackacre since 1976, seeks to subdivide his 16-acre parcel and obtain access by a road across Whiteacre (owned by B [respondents]) to a public street. A’s predecessor in title C [Murphy] had used the road only ten times per year—five each in February and July—to bring in equipment for spraying and picking in his apricot orchard. B’s predecessor in title D [Anderson] had in 1947 carved out Whiteacre from a larger parcel, Greenacre, reserving the road easement now being sought by A. By deed, describing the easement as appurtenant, reservation was granted by D to a landowner adjacent to Greenacre, E [Davies]. In 1967, Western Title became titleholder of the balance of Greenacre, and in 1976 granted A an easement across its property, and across B’s property.

The road, improved and maintained by B, E and his successors, is used by them for access to and from their single family residences. A, and a few others, have used the road from time to time for sightseeing, as a lovers lane, access to a water tank, etc. B had put up signs that it was a private road and would frequently tell people to leave, although no chains were ever placed to obstruct passage.

A now seeks to quiet title to an easement for residential purposes for his subdividees, and B strenuously objects. A appeals a lower court decision giving only a limited right similar to that of his predecessors in title, i.e., five times each in February and July.

[735]

What are the rights of the parties?

A’s rights depend upon his establishing an easement, upon terms sufficiently broad to permit multiple residential use by his proposed subdividees. An easement may be appurtenant or in gross. It is appurtenant when it is attached to the land of the owner, which is the dominant tenement, and burdens the land of another, the servient tenement. (3 Witkin, Summary of Cal. Law (8th ed. 1973), Real Property, § 341, pp. 2041-2042.) An easement in gross is not attached to any particular land, but belongs to a person individually. (3 Witkin,

Cushman v. Davis

AI Brief

JENKINS, J.

More from California Court of Appeal

Related research

AI Brief