Supreme Court of California Justia
Citation 46 Cal. 4th 157, 205 P.3d 289, 92 Cal. Rptr. 3d 381

Murphy v. Burch

Filed 4/27/09

IN THE SUPREME COURT OF CALIFORNIA

CHERYL C. MURPHY,
Plaintiff and Respondent,
S159489
v.
Ct.App.
1/2
A117051
ROGER BURCH et al.,
Mendocino
County
Defendants and Appellants.
Super. Ct. No.
SCUK-CVG-0493420

This is a quiet title action between owners of adjoining properties. In 1998,
the plaintiff purchased property having no vehicular access to or from any public
road. Because her property is “landlocked,” she seeks to establish, without
payment of consideration to the defendants, an “easement by necessity” over an
existing private road that crosses the defendants’ property and connects to a public
highway. Under California common law, such an easement requires examination
of the circumstances of the original conveyance by the “common owner” that
severed what is now the defendants’ property from what is now the plaintiff’s
landlocked property. In this case, the federal government was that common
owner, and it first conveyed the defendants’ property without expressly reserving a
right of access to the plaintiff’s property, which it retained. The question is
whether a right of access nonetheless arose by implication based on the
circumstances surrounding that conveyance, including whether or not a strict
1


necessity for access resulted and the inferences reasonably drawn regarding the
parties’ intent.
Given the distinctive nature and history of federal land grants and the
government’s power of eminent domain, we hold that extreme caution must be
exercised in determining whether an access easement arises by implication when
common ownership is traced back to a federal grant made without an express
reservation for access. We conclude, based on the stipulated facts presented at
trial, that the circumstances here fail to support an easement by necessity. We
affirm the judgment of the Court of Appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The parties to this matter are plaintiff Cheryl C. Murphy, Trustee of the
Murphy Children Education Trust dated June 11, 1998, and defendants Roger
Burch and Michele Burch, Trustees of the RMB Revocable Family Trust dated
February 5, 1999.
In their respective capacities as trustees, Murphy and the Burches are
owners of certain adjoining real property in Mendocino County. The “Murphy
property” consists of four parcels located east of the “Burch property,” which
consists of two parcels. The only public road that has ever existed in the vicinity
of the Murphy and Burch properties is California State Highway 162 (Highway
162), which is located to the south and runs in a generally east-west direction
without intersecting either property. The sole means of vehicle access between
Highway 162 and the Murphy property is a private road (the Access Road) that
extends north from the highway and crosses over the Burch property and other
privately owned land before entering the four parcels of the Murphy property.
As relevant here, Murphy filed this action seeking to quiet title to an
easement along the portion of the Access Road located on the Burch Property.
The Burches also seek to quiet title and to permanently enjoin use of the Access
2
Road by Murphy and any successors. The parties submitted this matter to a bench
trial upon the following agreed statement of facts.
Prior to 1876, the federal government owned all of the properties at issue in
this case. Over the course of time between 1876 and 1929, it deeded the parcels
now making up the Burch property, by patent, to various private owners.1 The
federal government conveyed these parcels without expressly reserving an
easement over the Access Road to Highway 162 for the benefit of the parcels it
retained, including the adjoining parcels to the east.
On December 28, 1932, the federal government conveyed to John Bridges,
also by patent, the four landlocked parcels now constituting the Murphy property.
The conveyances to Bridges did not include any express grant of an easement over
the Access Road to Highway 162 for the benefit of the conveyed property. In
1998, Murphy purchased these parcels from Bridges’s successors in interest.
As indicated, the Access Road provides the only roadway access between
the Murphy property and Highway 162. Consequently, without an easement over
the Access Road across the Burch property, the Murphy property has no vehicular
access to or from any public road. At the bench trial, the parties agreed that
Murphy has no right to cross the Burch property by virtue of a prescriptive
easement, but contested whether Murphy is entitled to an easement by necessity.
The trial court resolved the matter in Murphy’s favor, and entered judgment
accordingly. The Burches appealed, and the Court of Appeal reversed.

1
As used herein, a patent refers to a government grant that confers on an
individual fee simple title to public lands, or the official document of such a grant.
(See Kellogg v. Garcia (2002) 102 Cal.App.4th 796, 800, fn. 1 (Kellogg).)
3


DISCUSSION
The central issue is whether the federal patent conveyances to Murphy’s
predecessors in interest and to the Burches’ predecessors in interest included a an
easement by necessity over the Burch property for the benefit of the Murphy
property.
Generally, an easement by necessity arises from an implied grant or implied
reservation in certain circumstances when a property owner (the grantor) conveys
to another (the grantee) one out of two or more adjoining parcels of the grantor’s
property. When there is no express provision for access, and the parcel conveyed
is either landlocked entirely by the parcels retained by the grantor or landlocked
partly by the grantor’s retained land and partly by the land of others, the grantee
may claim an implied grant of a right-of-way of necessity over the land retained
by the grantor. (See generally 6 Miller & Starr, Cal. Real Estate (3d ed. 2006)
§ 15:27, p. 15-104 (6 Miller & Starr).) Conversely, when the grantor conveys
adjoining property without an express agreement for access to a retained parcel
left landlocked, the grantor may seek an implied reservation of a right-of-way of
necessity over the conveyed property for the retained parcel’s benefit. (6 Miller &
Starr, supra, § 15:27, p. 15-107.) In both situations, the landlocked parcel
benefitted by the implied right-of-way is called the dominant tenement or
dominant estate, while the burdened property is referred to as the servient
tenement or servient estate. Remote grantees in the chain of title may assert the
easement long after its creation by the original common grantor, and despite the
failure of a prior grantee to exercise the right. (Lichty v. Sickels (1983) 149
Cal.App.3d 696, 700-701; see Kripp v. Curtis (1886) 71 Cal. 62, 65 [an easement
by necessity “pass[es] as appurtenant to the estate when sold”].)
Easements by necessity originated in the common law and are “ ‘the result
of the application of the presumption that whenever a party conveys property, he
4
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.’ ” (Daywalt
v. Walker (1963) 217 Cal.App.2d 669, 672-673.) The rationale driving 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.” (Roemer v. Pappas
(1988) 203 Cal.App.3d 201, 205.) Hence, easements by necessity are grounded in
the public policy that property should not be rendered unfit for occupancy or
successful cultivation because access to the property is lacking. (Daywalt v.
Walker, supra, 217 Cal.App.2d at p. 672.)
In California, the easement arises by implication based on the inferred
intent of the parties to the property conveyance, as determined from the terms of
the relevant instrument and the circumstances surrounding the transaction.
(Daywalt v. Walker, supra, 217 Cal.App.2d at p. 673; County of Los Angeles v.
Bartlett (1962) 203 Cal.App.2d 523, 529.) Two circumstances are indispensable
to the implication and must be shown: (1) a strict necessity for the claimed right-
of-way, as when the claimant’s property is landlocked; and (2) the dominant and
servient tenements were under common ownership at the time of the conveyance
giving rise to the necessity. (Reese v. Borghi (1963) 216 Cal.App.2d 324, 332-333
[and cases cited]; see Kellogg, supra, 102 Cal.App.4th at p. 803; Daywalt v.
Walker, supra, 217 Cal.App.2d at p. 672.) The implication will not be made,
however, where it is shown to be contrary to the parties’ intentions. (Daywalt v.
Walker, supra, 217 Cal.App.2d at p. 674; County of Los Angeles v. Bartlett, supra,
203 Cal.App.2d at p. 529.)
To satisfy the strict-necessity requirement, the party claiming the easement
must demonstrate it is strictly necessary for access to the alleged dominant
tenement. (Kripp v. Curtis, supra, 71 Cal. at p. 65.) No easement will be implied
5
where there is another possible means of access, even if that access is shown to be
inconvenient, difficult, or costly. (See ibid.) Moreover, such an easement
continues only as long as the need for it exists. (Ibid.; Lichty v. Sickels, supra, 149
Cal.App.3d at p. 699; see generally 28 Cal.Jur.3d (2004) Easements and Licenses,
§ 70, pp. 221-222.) Thus, if adequate alternative access becomes available, the
easement terminates because it no longer serves to promote the underlying public
policy considerations. (See generally Bruce & Ely, The Law of Easements and
Licenses in Land (2008) Creation of Easements by Implication, § 4:12, p. 4-41.)
To meet the common-ownership requirement, the party seeking the
easement must establish that the lands composing the alleged dominant and
servient estates were once under common ownership and that a conveyance by the
common owner gave rise to the necessity for a right-of-way. In the absence of
common ownership, an easement by necessity will not be implied based solely on
a showing of necessity. (Daywalt v. Walker, supra, 217 Cal.App.2d at p. 673,
relying on County of Los Angeles v. Bartlett, supra, 203 Cal.App.2d at p. 529.)
Decisions stress the significance of strict necessity and common ownership
as circumstances from which the intent of the parties may be inferred. As one case
explained, “ ‘[a]n implication of the grant of a way of necessity may arise from the
transaction, but the necessity does not of itself create a right of way, though it may
be evidence of the grantor’s intention to convey one and raise an implication of a
grant.’ ” (County of Los Angeles v. Bartlett, supra, 203 Cal.App.2d at p. 530.)
Another decision similarly concluded: “[t]he fact that there is no way to the land
sold except over the remaining land of the grantor, or that the remaining land of
the grantor is not accessible except over the land granted by him, is only a
circumstance resorted to for the purpose of ascertaining the intention of the parties
to the grant or reservation of a way . . . .” (United States v. Rindge (S.D.Cal.
1913) 208 F. 611, 620.) As these authorities recognize, the common law doctrine
6
does not exist to ensure a right of access to any and all landlocked property; rather,
the doctrine is properly applied only when the circumstances establish that an
access easement was intended at the time of the common owner’s conveyance.
When federal or state land patents are at issue, strict necessity and common
ownership remain requirements of an easement by necessity. In contrast to private
party conveyances, however, conveyances involving a sovereign as the common
owner typically do not give rise to implied reservations of easements or other
property interests in conveyed land. (E.g., Leo Sheep Co. v. United States (1979)
440 U.S. 668, 679-681 (Leo Sheep) [easement by necessity]; Hash v. United States
(Fed. Cir. 2005) 403 F.3d 1308, 1313-1318 [fee interest in land underlying
abandoned railroad easements]; State v. Black Bros. (Tex. 1927) 297 S.W. 213,
217-218 [way of necessity].)2 Courts have come to this result based on various
considerations.
First, all patents, particularly those of federal origin, play a significant role
in establishing title to property: “ ‘A patent to land, issued by the United States
under authority of law, is the highest evidence of title, something upon which the
holder can rely for peace and security in his possession.’ ” (Brown v. Northern
Hills Regional Railroad Authority (S.D. 2007) 732 N.W.2d 732, 739.) Mindful of
this circumstance, a number of courts express reluctance to interfere with the
certainty and predictability of land titles conferred by a sovereign without any
express reservation of rights. (E.g., Leo Sheep, supra, 440 U.S. at pp. 687-688;

2
But several authorities have held, assumed, or recognized that conveyances
by a sovereign may give rise to a sovereign’s implied grant of an easement over
the land it retains, for the benefit of the property it conveys. (E.g., Kellogg, supra,
102 Cal.App.4th 796; Moores v. Walsh (1995) 38 Cal.App.4th 1046; accord,
Kinscherff v. United States (10th Cir. 1978) 586 F.2d 159.)
7


Brown v. Northern Hills Regional Railroad Authority, supra, 732 N.W.2d at pp.
739-740; Granite Beach Holdings v. State of Washington (Wn.Ct.App. 2000) 11
P.3d 847, 854-855 (Granite Beach Holdings); State v. Black Bros., supra, 297
S.W. at p. 218; United States v. Rindge, supra, 208 F. at p. 619 [dictum].)
Second, the federal government owned most all of the land at one time.
Observing that generations of federal patents have issued with no express
reservation of rights, some courts warn that the common-ownership requirement
would be meaningless unless stronger showings are required for implying an
easement by necessity in cases tracing back to patents. (E.g., State v. Black Bros.,
supra, 297 S.W. at p. 218; see also Granite Beach Holdings, supra, 11 P.3d at pp.
854-855.)
Finally, some courts recognize that strict necessity does not exist in the case
of the sovereign as in the case of the private landowner, because the sovereign can
exercise the power of eminent domain to obtain any and all reasonable rights-of-
way. (E.g., Leo Sheep, supra, 440 U.S. at pp. 679-680; State v. Black Bros.,
supra, 297 S.W. at pp. 218-219; see also Moores v. Walsh, supra, 38 Cal.App.4th
1046, 1049-1050, fn. 1, 1051 [assuming an easement by necessity could be found
if traced to common ownership by the federal government, any such easement was
extinguished when state grantee could exercise its power of eminent domain].)
The United States Supreme Court adverted to at least two of these
considerations in Leo Sheep, supra, 440 U.S. 668. In that case, the federal
government had made a land grant to a private party without expressly reserving a
right-of-way for public access to a reservoir located on landlocked federal
property. The government sought to establish an implied reservation in the land
grant, but the high court rejected the claim: “Where a private landowner conveys
to another individual a portion of his lands in a certain area and retains the rest, it
is presumed at common law that the grantor has reserved an easement to pass over
8
the granted property if such passage is necessary to reach the retained property.
These rights-of-way are referred to as ‘easements by necessity.’ There are two
problems with the Government’s reliance on that notion in this case. First of all,
whatever right of passage a private landowner might have, it is not at all clear that
it would include the right to construct a road for public access to a recreational
area. More importantly, the easement is not actually a matter of necessity in this
case because the Government has the power of eminent domain.” (Leo Sheep,
supra, 440 U.S. at pp. 679-680, fns. omitted.)
The high court proceeded to explain that the “pertinent inquiry” was the
intent of Congress when it granted the land in question pursuant to the Union
Pacific Act of 1862.3 (Leo Sheep, supra, 440 U.S. at p. 681.) After observing that
the 1862 act specifically listed certain reservations to the grant but not one for
access, the court declined to “find the tenuous relevance of the common-law
doctrine of ways of necessity sufficient to overcome the inference prompted by the
omission of any reference to the reserved right [of access] asserted by the
Government.” (Ibid.) As the court explained, “[i]t is possible that Congress gave
the problem of access little thought; but it is at least as likely that the thought
which was given focused on negotiation, reciprocity considerations, and the power
of eminent domain as the obvious devices for ameliorating disputes.” (Ibid., fn.
omitted.) The high court held, both as a matter of common law doctrine and as a
matter of construing congressional intent, that no reserved right-of-way existed:
“[W]e are unwilling to imply rights-of-way, with the substantial impact that such

3
Because federal land patents are effected by means of enactments that
constitute laws as well as contracts, the intent of Congress is a prominent
consideration in their interpretation. (See generally 3 Sutherland Statutes and
Statutory Construction (6th ed. 2008 update) Public Land Grants, § 64:7, p. 357.)
9


implication would have on property rights granted over 100 years ago, in the
absence of a stronger case for their implication than the Government makes here.”
(Id. at p. 682.)
The foregoing authorities and the considerations they raise are persuasive.
Therefore, although we need not and do not presently impose a categorical bar to
all easement-by-necessity claims tracing common ownership to the federal
government, we hold that the special considerations above must inform the
determination whether such an easement arises by implication. This means that,
consistent with existing California common law, an easement by necessity may
arise by implication based on the inferred intent of the parties to the property
conveyance, as determined from the terms of the relevant instrument and the
circumstances surrounding the transaction. (Daywalt v. Walker, supra, 217
Cal.App.2d at p. 673; County of Los Angeles v. Bartlett, supra, 203 Cal.App.2d at
p. 530.) Strict necessity and common ownership remain required showings
(Kellogg, supra, 102 Cal.App.4th at p. 803; Daywalt v. Walker, supra, 217
Cal.App.2d at p. 672), but when a claimant traces common ownership back to the
federal government and seeks to establish an implied reservation of an access
right-of-way, the intent of Congress is paramount and the government’s power of
eminent domain also bears significance. (Leo Sheep, supra, 440 U.S. at pp. 679-
682.) Given the unique historical and legal nature of land patents, extreme caution
must be exercised in determining whether the circumstances surrounding a
government land grant are sufficient to overcome the inference prompted by the
omission of an express reference to a reserved right of access. (See id. at pp. 681-
682.) In such cases, the easement claimant bears the burden of producing
evidence on the issues regarding the government’s intent to reserve an easement
and the government’s lack of power to condemn.
10
In this matter, the federal government once simultaneously owned all the
parcels composing the claimed dominant estate (the Murphy property) and all the
parcels of the claimed servient estate (the Burch property). By 1929, the
government granted to private parties the last of the patents pertaining to the
Burch property, and in 1932 it granted to John Bridges the patents pertaining to
the Murphy property.
The parties agree that, without an easement over the Access Road across
the Burch property, the Murphy property has no vehicular access to or from any
public road. The parties dispute, however, which conveyance gave rise to the
necessity for the easement, and whether there was common ownership of the
claimed dominant and servient tenements at the time of the relevant conveyance.
Murphy asserts the relevant conveyance occurred in 1929, when the federal
government deeded the last of the parcels composing the Burch property while
retaining ownership of the landlocked Murphy property. She claims the
conveyances in 1929 and earlier gave rise to an implied reservation of a right-of-
way of necessity over the conveyed Burch property for the benefit of the retained
Murphy property. Conversely, the Burches contend that common ownership
cannot be established because the relevant conveyance occurred in 1932, when the
federal government deeded the landlocked Murphy property to John Bridges but
no longer owned the Burch property.
We agree that an easement by necessity cannot arise by implication from
the 1932 conveyance because common ownership was lacking. But even
assuming the relevant conveyance took place in 1929,4 when the federal

4
Although the government issued earlier patents for certain parcels of the
Burch property, neither side offers arguments independent of the last 1929 patent.

(footnote continued on next page)
11


government was the common owner of the Murphy property and the Burch
property, we agree with the Court of Appeal that the trial court judgment in
Murphy’s favor cannot stand.
The record on appeal discloses that neither the patents themselves, nor the
circumstances surrounding their issuance, support an easement by necessity. The
parties stipulated that “[t]he U.S. Government did not, when conveying out any
parcel of the property along the Access Road between the Murphy property and
Highway 162, expressly reserve an easement over the Access Road to Highway
162 for the benefit of the Murphy property or other surrounding properties being
retained by the U.S. Government.” Murphy offered no legislative history
demonstrating that Congress intended to imply a reservation of an easement under
the federal statutes authorizing the subject patents. (See Act of May 20, 1862, ch.
75, 12 Stat. 392; Act of Mar. 3, 1855, ch. 207, 10 Stat. 701; Act of Apr. 24, 1820,
ch. 51, 3 Stat. 566; accord, Granite Beach Holdings, supra, 11 P.3d at p. 854.)
Indeed, any implication of a reservation for access appears negated by the
circumstance that two of the statutes expressly provided for limited rights of
reversion in the government, but omitted reservation of any other interest. (Act of
May 20, 1862, ch. 75, § 5, 12 Stat. 392 [purchaser’s change of residence or
abandonment of land]; Act of Apr. 24, 1820, ch. 51, §§ 3, 4, 3 Stat. 566
[purchaser’s failure in payment].) Nor did Murphy show that the government
lacked authority to condemn access if it deemed that doing so was necessary. (See
Granite Beach Holdings, supra, 11 P.3d at p. 854.)

(footnote continued from previous page)

Accordingly, our analysis of the 1929 patent will be determinative with regard to
both the Burch parcels at issue here.
12


In addressing these deficiencies, Murphy relies on Kellogg, supra, 102
Cal.App.4th 796, in which the plaintiff owners of certain landlocked property
traced common ownership back to the federal government and claimed an
easement by necessity over the defendants’ neighboring properties. Ruling in the
plaintiffs’ favor, Kellogg broadly stated that “the federal government may be the
common owner of the properties whose conveyance gives rise to the strict
necessity that justifies an easement by necessity,” and that such a conclusion “is
consistent with the public policy” to “promote the productive use of land.”
(Kellogg at p. 799; see also Moores v. Walsh, supra, 38 Cal.App.4th at p. 1049, fn.
1.) Murphy’s reliance on Kellogg is misplaced.
Unlike the situation here, Kellogg, supra, 102 Cal.App.4th 796, did not
concern a claim of an implied reservation. Rather, the plaintiffs in Kellogg sought
to establish that when the federal government made a grant of landlocked
property, the government also impliedly granted a right of access for that property
over the land it retained. (Kellogg at p. 811.) Because exercise of the
government’s power of eminent domain could have had no effect on access to the
conveyed landlocked property, it is hardly surprising that Kellogg made no attempt
to distinguish the authorities holding that such power negates the element of strict
necessity when an implied reservation claim is at issue. (E.g., Leo Sheep, supra,
440 U.S. 668, Hash v. United States, supra, 403 F.3d 1308; State v. Black Bros.,
supra, 297 S.W. 213; cf. ante, fn. 2.) As one treatise observes, where the
government is identified as the common grantor, “an easement of necessity may
be created against the government, but the government agency cannot establish an
easement by necessity over land it has conveyed because its power of eminent
domain removes the strict necessity required for the creation of an easement by
necessity.” (6 Miller & Starr, supra, § 15:27, p. 15-106, fns. omitted; see also id.,
§ 15:28, p. 15-109; cf. Moores v. Walsh, supra, 38 Cal.App.4th at p. 1051;
13
Kinscherff v. United States, supra, 586 F.2d at pp. 159, 161 [plaintiffs who
acquired landlocked land by federal patent entitled to a hearing to determine
whether their patent included an implied easement to use an access road across
federal land]; State of Utah v. Andrus (D.Utah 1979) 486 F.Supp. 995, 1002 & fn.
11].)
Moreover, Murphy’s expansive reading of Kellogg, supra, 102 Cal.App.4th
796, would, in the words of the Court of Appeal below, “effectively mean that any
and all federal patent grants of adjoining California parcels of land, some
landlocked and some not, and no matter in which order deeded to private parties,
have always included (and hereafter always will) an easement of necessity from
the landlocked property across the nonlandlocked properties to the nearest public
road.” (Fn. omitted.) Neither the public policy generally favoring access to
landlocked property, nor the easement decisions involving federal patents, call for
such a far-reaching rule.
Next, Murphy acknowledges Leo Sheep’s holding that the easement
claimed there “is not actually a matter of necessity in [the] case because the
Government has the power of eminent domain.” (Leo Sheep, supra, 440 U.S. at
pp. 679-680.) She contends, however, this holding is unpersuasive here, because
the easement she seeks does not implicate a public right-of-way. Relying on Con.
Channel Co. v. C. P. R. R. Co. (1876) 51 Cal. 269 and City of Oakland v. Oakland
Raiders (1982) 32 Cal.3d 60, Murphy asserts the government may properly
condemn an easement only if such action is necessary to provide public access to
an area that is open to the public, such as the public reservoir and recreational area
at issue in Leo Sheep. We are not persuaded.
Those decisions merely establish that a valid public purpose will not be
found, and therefore the power of eminent domain cannot be exercised, where the
proposed condemnation would benefit only a private company or individual.
14
(Con. Channel Co. v. C. P. R. R. Co., supra, 51 Cal. at pp. 271-273 [finding statute
unconstitutional to the extent it authorized exercise of the right of eminent domain
in behalf of a private mining company for its private use]; City of Oakland v.
Oakland Raiders, supra, 32 Cal.3d at p. 72 [acquisition and operation of a football
team franchise might be shown to serve a valid public purpose, and thus might
support a city’s effort to condemn the franchise].)
The issue here, however, is not whether the federal government could
validly have condemned an easement over the Burch property for the benefit of a
private owner or privately owned property. Because the federal government still
owned the Murphy property when it conveyed the Burch property, the relevant
consideration is whether the government had the power to condemn an easement
along the Access Road to provide access to its own land. Murphy identifies no
evidence or legal authority indicating the federal government lacked power to do
so, and at least one California case, addressing the state power of eminent domain,
suggests otherwise. (Moores v. Walsh, supra, 38 Cal.App.4th at p. 1051.)
Finally, Murphy contends her claim is supported by several decisions
holding that the ability to condemn an access easement does not preclude the
creation of a common law easement by necessity. (E.g., Blum v. Weston (1894)
102 Cal. 362, 369; Taylor v. Warnaky (1880) 55 Cal. 350, 351; Roemer v Pappas,
supra, 203 Cal.App.3d at p. 206; Reese v. Borghi, supra, 216 Cal.App.2d at pp.
329-330.) Those decisions are of questionable relevance, however, because they
addressed a limited and purely private statutory right of condemnation that has
since been repealed.5 More importantly, extending their reasoning to this case

5
(Code of Civ. Proc., former § 1238, repealed by Stats. 1975, ch. 1275, § 1,
p. 3409; Civ. Code, former § 1001, repealed by Stats. 1975, ch. 1240, § 1, p.
3156.)
15


would be at odds with the recognition that an easement is not a matter of necessity
when the federal government has the power of eminent domain (Leo Sheep, supra,
440 U.S. at pp. 681-682) and that strict necessity may be extinguished when a
sovereign owner fails to exercise its power (Moores v. Walsh, supra, 38
Cal.App.4th at p. 1051). Such extension would also impede the public policy
favoring the certainty and predictability of the countless patents that have issued
over the last 180 years. (See Leo Sheep, supra, 440 U.S. at pp. 687-688.)
In sum, we conclude, based on the parties’ stipulated facts, that neither the
patents in this case, nor the circumstances surrounding their issuance, support the
implication that the federal government reserved a right of access over the Burch
property in 1929 when it conveyed that property while retaining the landlocked
Murphy property. Accordingly, Murphy’s claim for an easement by necessity
fails.
DISPOSITION
While easements by necessity are grounded in the public policy that
property should not be rendered idle due to lack of access, the need for access, by
itself, does not entitle a landlocked property owner to burden a neighbor’s land
when the easement claim must be traced back to a federal patent. For all the
reasons above, we affirm the judgment of the Court of Appeal.
BAXTER, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
16


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Murphy v. Burch
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 156 Cal.App.4th 1434
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S159489
Date Filed: April 27, 2009
__________________________________________________________________________________

Court:

Superior
County: Mendocino
Judge: Richard Henderson

__________________________________________________________________________________

Attorneys for Appellant:

Petersen Law Offices, Thomas E. Owen and Robert C. Petersen for Defendants and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Carter, Vannucci & Momsen, Jared G. Carter and Brian C. Carter for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Thomas E. Owen
Petersen Law Offices
1102 S. Main Street, Suite 2
Fort Bragg, CA 95437
(707) 964-4044

Brian C.. Carter
Carter, Vannucci & Momsen
444 North State Street
Ukiah, CA 95482
(707) 462-6694


Document Outline

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Petition for review after the Court of Appeal reversed the judgment in a civil action. This case presents issues concerning the application of the common law doctrine of easement by necessity, including the question whether, in view of the federal government's power of eminent domain, the common law doctrine of easement by necessity applies to land originally owned by and subsequently conveyed by the federal government.

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 04/27/200946 Cal. 4th 157, 205 P.3d 289, 92 Cal. Rptr. 3d 381S159489Review - Civil Appealclosed; remittitur issued

Parties
1Murphy, Cheryl C. (Plaintiff and Respondent)
Represented by Brian Charles Carter
Carter & Momsen, LLP
444 N. State Street
Ukiah, CA

2Burch, Roger (Defendant and Appellant)
Represented by Thomas Edward Owen
Petersen Law Offices
P.O. Box 1168
Fort Bragg, CA


Opinion Authors
OpinionJustice Marvin R. Baxter

Disposition
Apr 27 2009Opinion: Affirmed

Dockets
Dec 31 2007Record requested
 
Dec 31 2007Petition for review filed
  Cheryl Murphy, aplt. Brian Carter, counsel (8.25(b))
Jan 4 2008Received Court of Appeal record
  file jacket/briefs/accordian file
Jan 18 2008Answer to petition for review filed
  Roger Burch, appellant by Thomas Owen, counsel
Jan 28 2008Reply to answer to petition filed
  Cheryl C. Murphy, petitioner by Brian C. Carter, counsel
Feb 5 2008Received:
  Respondent, Cheryl C. Murphy's notie of errata re: reply brief. by Brian C. Carter, counsel
Feb 27 2008Petition for review granted (civil case)
  George, C.J., and Corrigan, J., were absent and did not participate. Votes: Baxter, A.C.J., Kennard, Werdegar, Chin, and Moreno, JJ.
Mar 4 2008Certification of interested entities or persons filed
  Cheryl Murphy, respodent by Brian Charles Carter, counsel
Mar 12 2008Certification of interested entities or persons filed
  Attorney Thomas Edward Owen for Appellant ( Burch).
Mar 28 2008Opening brief on the merits filed
  Cheryl Murphy, respondent by Brian C. Carter, counsel
Apr 25 2008Answer brief on the merits filed
  Roger Burch, appellant by Thomas Edward Owen, counsel
May 15 2008Reply brief filed (case fully briefed)
  Respondent, Cheryl C. Murphy. by counsel, Brian C. Carter.
Aug 28 2008Change of contact information filed for:
  Attorney Brian C. Carter for respondent : name of law firm changed to: Carter & Momsen, LLP.
Feb 3 2009Case ordered on calendar
  to be argued on Tuesday, March 3, 2009, at 1:30 p.m., in San Francisco
Mar 3 2009Cause argued and submitted
 
Apr 24 2009Notice of forthcoming opinion posted
 
Apr 27 2009Opinion filed: Judgment affirmed in full
  Opinion by Baxter,J. ----joined by George, C.J., Kennard, Werdegar, Chin, Moreno & Corrigan, JJ.
May 28 2009Remittitur issued
 
May 29 2009Received:
  receipt for remittitur from First Appellate District, Division Two.

Briefs
Mar 28 2008Opening brief on the merits filed
 
Apr 25 2008Answer brief on the merits filed
 
May 15 2008Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 1, 2010
Annotated by dashman

Judge Marvin Baxter wrote for a unanimous court.

Issues:
1. Under Californian law, what factors determine implied access easements by necessity where the original common owner was the federal government?
2. As applied to this case, was the trial court’s finding of an implied easement supported by Californian law?

Holding:
1. When a claimant traces common ownership back to the federal government while seeking establishment of an implied right-of-way necessity easement, Congressional intent and eminent domain considerations augment standard strict necessity and common ownership showings in determining whether such implied easement arises. The need for access is not determinative by itself.

2. The claimant bears the burden of producing evidence regarding the government’s intent to reserve an easement and the government’s lack of power to condemn such reservation.

3. The Supreme Court unanimously affirms the Court of Appeal’s judgment that facts and circumstances fail to support an easement by necessity in this case.

Facts/Procedural Posture:
Plaintiff Murphy and Defendant Burches own, as trustees, adjacent real estate in California. The only public road in the area is connected to both properties via a private access road. The private access road provides the sole means to access the public road. The private access road cuts across the Burches’ properties and other land before entering the Murphy properties, meaning that in order to reach the public road from Murphy property, one has to drive through Burches’ property.

Although John Locke’s famous maxim claims neighborly love “is such a truth for regulating human society, that by that alone one might determine all the cases in social morality,” these neighbors turned toward the courts to resolve their differences. Plaintiff Murphy sought to quiet title to an implied easement along the portion of the private road that crosses Burches’ property. Burches, in turn, sought to quiet title over the same issue and to permanently enjoin use of the access road by Murphy and successors.

The federal government originally owned all of the Murphy and Burches properties. By 1929, the government had deeded what would become the Burches’ properties to private owners without expressly reserving an easement over the private access road to reach the public road. The government deeded what would become the Murphy properties to a private owner in 1932, again without expressly reserving an easement over the private access road.

The trial court ruled in Murphy’s favor; the Court of Appeal reversed.

Analysis:
• Easements by necessity generally arise when a grantor conveys one or more adjacent parcels from originally common property and either the newly granted properties or the retained properties are effectively landlocked. While the grantor might not expressly deed or reserve rights of access, such rights will be legislatively or judicially implied.
• In California, two strict conditions must be met in order to imply such an access easement: there must be (1) a strict necessity for the claimed right-of-way, as when the claimant’s property is landlocked, and (2) the parcels must have been under common ownership at the time of the conveyance and creation of the necessity. Furthermore, since the establishment of an easement depends on the intentions of the parties, no implication will be made contrary to the parties’ intentions.
• In the case of federal government ownership, the relevant “intentions” belongs to the sovereign United States, and courts must exercise special caution when imputing to sovereigns acts terms not expressly given. Although some courts have recognized the need for implied easements from federal land grants, predictability concerns and governmental historical continuity of not reserving such easements urges caution. Moreover, government general eminent domain powers places the “necessity” element of implied right-of-way easements in question.
• Therefore, Congressional intent and eminent domain considerations augment standard strict necessity and common ownership showings in determining whether such implied easement arises. The claimant bears the burden of producing evidence regarding the government’s intent to reserve an easement and the government’s lack of power to condemn such reservation.
• In this case, the court found common ownership was lacking in the 1932 conveyance to what became the Murphy property.
• More importantly, with respect to the conveyances up until 1929, where common ownership was not a block, Plaintiff Murphy did not carry her burden to rebut presumptions that the government’s omission of right-of-way access rights signaled intent not to reserve such rights. Murphy also did not show the lack of ability to use eminent domain powers such to demonstrate strict necessity.
• Although the Court chose not to “impose a categorical bar to
all easement-by-necessity claims tracing common ownership to the federal government,” in this case an easement by necessity never arose. The landlocked parcels passed down over time simply remained landlocked parcels without an access easement.

Tags: easement, easement by necessity, implied easement, right-of-way easement; property access; access necessity; land access; road access

Nicholas Dashman