August 2019 Update
Supreme Court Cases. Owners of property containing (or adjacent to) “waters of the United States” risk substantial criminal and civil penalties for activities causing a discharge of fill material into such waters without a permit. The United States Supreme Court will decide whether federal permits are required for discharges to groundwater that will ultimately reach “waters of the United States” in Hawaii Wildlife Fund v County of Maui (9th Cir 2018) 886 F3d 737, cert granted (2019) ___ US ___, 139 S Ct 1164. See §3.20.
Although telephone companies and video service providers must use their rights under Pub Util C §7901 in such a manner as to not “incommode” the public’s use of the streets, this clause does not preempt the authority of a local city or county to enact an ordinance requiring telecommunications companies to obtain permits to install and maintain their lines and equipment in public rights-of-way and designating specific areas of installation for heightened aesthetics and to mitigate negative health consequences. T-Mobile W. LLC v City & County of San Francisco (2019) 6 C5th 1107. See §5.12.
The California Supreme Court granted review to determine whether the measure of damages that is augmented under CC §3346 applies to injuries to timber caused by negligently set fires, or if it applies only to cases involving cutting of timber. Scholes v Lambirth Trucking Co. (review granted June 21, 2017, S241825; superseded opinion at 10 CA5th 590). See §8.30.
Equitable and Prescriptive Easements. Civil Code §1009 prevents use of private property, other than coastal property as defined in the statute, by members of the public for recreational purposes from ripening into prescriptive rights. But §1009 does not prevent a landowner from acquiring an appurtenant easement over neighboring land for access to a state park. Ditzian v Unger (2019) 31 CA5th 738. See §§1.32, 7.11, 8.43A, 10.47.
In California, the legal foundation for establishing an easement by prescription is entirely in the common law. Adverse use by the servient owner for 5 years, however, may terminate a private easement or right-of-way. In McLear-Gary v Scott (2018) 25 CA5th 145, a quiet title cause of action alleged that the plaintiff acquired a prescriptive easement, and the defendants’ affirmative defense alleged that plaintiff’s adverse use of a road over defendants’ property was interrupted and barred by defendants’ maintenance of a locked gate on the road that prevented plaintiff’s use for 5 continuous years. This defense did not succeed because the defendants failed to timely pay taxes, an essential element of adverse possession. See §§1.38, 1.69, 8.22–8.23, 10.42, 10.47, 10.49, 10.65A.
A court decree establishing an equitable easement must be based on the court’s balancing of the hardships to all parties, and the underlying trespass or encroachment must not be willful or negligent. Hansen v Sandridge Partners, L.P. (2018) 22 CA5th 1020, 1029 (defendants knew there was lot line uncertainty before they planted pistachio trees and installed drip irrigation system; court also refused to decree prescriptive easement). See §§1.39, 1.44, 8.23–8.24, 10.47, 10.50.
Water Rights and Public Trust Doctrine. All water within the state of California is property of the people of California (Wat C §102), subject to previously existing rights and the ongoing right to appropriate water. But in Santa Barbara Channelkeeper v City of Santa Buenaventura (2018) 19 CA5th 1176, the court observed that after rights to use water are acquired, they become vested but are not absolute property rights; the right to take water is always subject to the requirements to put water to beneficial use to the fullest extent possible and to reasonably use water and avoid waste. See §§3.9, 3.21.
The owner of the appropriative rights may also change the point of diversion, as well as the use of the water, as long as such changes are not injurious to others. See Orange Cove Irrig. Dist. v Los Molinos Mut. Water Co. (2018) 30 CA5th 1. See §3.13.
The State Water Resources Control Board (SWRCB) is authorized to prevent illegal water diversions and to prevent the waste or unreasonable use, unreasonable method of use, or unreasonable method of diversion of surface water or groundwater within California. It also has the authority to apply the public trust doctrine to regulate groundwater pumping if such pumping is deemed to adversely affect a navigable river. See Environmental Law Found. v State Water Resources Control Bd. (2018) 26 CA5th 844, in §§3.13A, 3.20.
Private, nontrust use of public trust lands may be authorized if it does not impair the public trust. See San Francisco Baykeeper, Inc. v State Lands Comm’n (Baykeeper II) (2018) 29 CA5th 562 (although private commercial sand mining from trust tidelands does not constitute public trust use, State Lands Commission lease was upheld when public trust was properly considered and substantial evidence supported Commission’s determination that such mining would not impair public trust uses or values). See §§3.20–3.21, 3.22A.
Under President Trump’s Executive Order No. 13778 (Feb. 28, 2017) directing federal agencies to reconsider the narrower interpretation of “waters of the United States” under the Rapanos decision, the EPA and COE proposed a revised definition of “waters of the United States,” which is pending. See 84 Fed Reg 4154 (Feb. 14, 2019), in §3.20.
In 2018, the California legislature restricted the State Lands Commission’s authority, by prohibiting the Commission from entering into new leases authorizing oil or gas extraction infrastructure on public lands within state waters, associated with Pacific Outer Continental Shelf leases issued after January 1, 2018. See Pub Res C §6245, added by AB 1775 (Stats 2018, ch 310) (which also established procedures for approving or disapproving related lease renewals, extensions, amendments, or modifications), in §3.22.
Local government agencies have authority to issue development permits that will further the access objectives of the Coastal Act after the Coastal Commission certifies the local government’s land use plan. See Beach & Bluff Conservancy v City of Solana Beach (2018) 28 CA5th 244, in §3.22A.
Development activities that would reduce the intensity of or limit public access to coastal waters trigger the requirement for a Coastal Development Permit. See Greenfield v Mandalay Shores Community Ass’n (2018) 21 CA5th 896 (short term rental prohibition is development under Act), in §3.22A.
Construction and Utility Easements; Liability Issues. Common law dedication occurs when a landowner manifests an intention to dedicate an easement to the public and the public accepts the offer by using the easement. See Prout v Department of Transp. (2018) 31 CA5th 200 (Caltrans accepted offer to dedicate strip for highway improvements 20 years later by physically using strip; no liability for inverse condemnation), in §§1.42, 7.6, 7.11.
In 2017, the California Supreme Court held that CC §1009(b) prevents the public from acquiring rights in noncoastal land not only by recreational uses but also by any type of use made after March 2, 1972. Subsequently, a court of appeal held that §1009 forecloses both implied-in-law and implied-in-fact dedications based on public use of private noncoastal property after 1972. Mikkelsen v Hansen (2019) 31 CA5th 170. See §§1.42, 7.11, 8.43A, 9.25.
A new section was added to chapter 2 discussing the increasing use of collaborative development easements, which are being negotiated in connection with housing development. In response to growing housing needs, developers are seeking to use sites for subdivisions that are located near existing businesses, such as farming, animal recreational activities, gravel quarries, or manufacturing plants that emit noise, dust, odors, vibrations, or other effects that might be considered a nuisance to subdivision residents. See §§2.37B.
The Form Provision: License to Monitor Adjacent Property, which allows entry on adjacent property to determine whether nearby construction is having any effect on the property, was updated to allow the constructing owner or its contractor to install tilt meters to continuously monitor the adjacent improvements and provide real-time alerts of any movement. See §§4.7–4.8.
In addition to duties owed to the servient owner and others under state regulations, or under contract, an easement holder under common law negligence principles must maintain facilities it has installed in the easement area in safe condition and prevent personal injury to third parties. See PG&E v Superior Court (Butte Fire Cases) (2018) 24 CA5th 1150 (plaintiffs failed to meet their burden of proof when opposing defendant’s summary judgment motion on issue of punitive damages under CC §3294), in §5.6.
On a retrial of a nuisance claim against a public utility, the jury found in favor of the plaintiff and awarded her $1.2 million in damages on her claim. But the court of appeal in Wilson v Southern Cal. Edison Co. (Wilson II) (2018) 21 CA5th 786 held that the trial court erred in admitting evidence prejudicial to the defendant; accordingly, the judgment was reversed and the case remanded for a second retrial. See §§5.10, 10.43.
The franchise interests that telecommunications companies have in public rights-of-way granted by a public entity are interests in land subject to local property taxation. See Rev & T C §§104, 107; Time Warner Cable, Inc. v County of Los Angeles (review denied and ordered not published Nov. 14, 2018; former opinion at 25 CA5th 457, 466) (county tax assessor may include revenue from broadband and telephone service in valuing interests). See §5.17.
Conservation Easements and Deductibility. The Checklist: Negotiating and Drafting Conservation Easements, in §6.1A has been substantially reorganized and updated to assist practitioners in negotiating and preparing tax-qualified conservation easements.
There is a Legislation Alert in §6.3 explaining a proposed bill in 2019 that would supersede CC §815.11, which was enacted at the end of the 2018 legislative session, governing maintenance of conservation easements that contain some “forest lands” in Stats 2018, ch 626, §2, effective January 1, 2019. As currently drafted, SB 182 would repeal CC §815.11 and in its place, add proposed Pub Res C §4751, which would more clearly define what is “forest lands” and clarify the language required in the easement or management plan.
Until January 1, 2020, a city or county must charge the owner a rescission fee of 10 percent of the fair market value of a property at the time of the conversion of land protected under the Williamson Act to a solar-use easement project. Govt C §51255.1(c). See §6.8B.
In PBBM-Rose Hill, Ltd. v Commissioner (5th Cir 2018) 900 F3d 193, the Fifth Circuit upheld a decision by the Commissioner of the Internal Revenue Service to deny a tax deduction for a conservation easement, in part, on the grounds that the donation failed to satisfy the “in perpetuity” requirement of Treas Reg §1.170A–14(g)(6)(ii), because the extinguishment clause in the easement grant permitted the value of improvements to be subtracted from the donee’s proportion of sale proceeds on judicial extinguishment. See §§6.15, 6.44A.
The Public Policy Recitals in the form in §6.18 have been substantially amended by adding more commonly used recitals that are recognized by the California Department of Conservation for easements.
More practice tips and strategies about drafting conservation easements were added in §6.37.
Street, Trail, and Road Easements. Recent cases decided the applicability of statutory immunities for California public entities under the state Government Claims Act. See, e.g., Arvizu v City of Pasadena (2018) 21 CA5th 760 (immunity in Govt C §831.4 applied to injury that occurred during plaintiff’s off-trail excursion down steep slope). But see Toeppe v City of San Diego (2017) 13 CA5th 921 (immunity did not apply to injuries caused by falling branch on or near trail in public park). See §§2.49, 8.29.
The Ninth Circuit held that a railroad purpose easement is not terminated or abandoned on a rails-to-trails conversion, but the easement continues in existence. Further, the easement may be used by the trail operator as the basis for granting rights to third parties within the land encompassed by the easement, including those portions of the subsurface below (and the airspace above) the right-of-way traditionally encompassed within the scope of a railroad purpose easement. See Hornish v King County (9th Cir 2018) 899 F3d 680, in §7.71.
When one grants a trail or road easement in general terms, for the purpose of access, ingress, and egress to vehicles and pedestrians, it will be construed in an enforcement action as creating an easement to be used by the easement holder “for all reasonable purposes.” See Zissler v Saville (2018) 29 CA5th 630, which also refused to reverse a paving prohibition in a judgment against the easement holder, in §7.79.
Tree Damages and Liability. When tree removal or trimming is necessary, in some instances it is advisable to hire a licensed contractor. An unlicensed tree service contractor or an employee of the contractor who is injured while performing “tree removal, tree pruning, stump removal, or who engages in tree or limb cabling or guying” on trees over 15 feet tall may bring an action for workers’ compensation coverage or tort liability against the homeowner or other person who hired them. Bus & P C §7026.1(a)(4). See, e.g., Jones v Sorenson (2018) 25 CA5th 933 (owner liability when hiring unlicensed contractor), in §10.14.
The American Society of Consulting Arborists publishes the Guide for Plant Appraisal (10th ed 2018), written by the Council of Tree and Landscape Appraisers; the guide is widely used by forensic landscape professionals to determine the measure of damages when trees and plants are injured or destroyed. See §10.30.
Litigation of Easements and Neighboring Property Rights. In Shoen v Zacarias (Shoen II) (2019) 33 CA5th 1112, a case arising from the defendants’ encroachment of their movable outdoor furniture on neighboring property, the court of appeal ruled that the trial court’s grant of an irrevocable license to the encroaching parties over neighboring property was an abuse of discretion because the trial court construed the “substantial expenditure” requirement too permissively and used the wrong legal standard in declaring the license to be forever irrevocable. See §§1.5, 8.32A, 10.42.
In Zissler v Saville, a court of appeal held that limiting an easement for ingress and egress to its actual, historic use in maintaining landscaping was error, because an express right-of-way easement includes uses only for normal future development of the dominant estate. Any understanding of the use limitations between the original parties not expressed in the easement grant will be ineffective against a bona fide purchaser of the benefited land. See §§1.52, 2.17, 7.79, 8.29, 8.51, 10.73.
Liability for a servient owner’s interference with an easement is not covered by insurance against liability for property damage (defined as physical injury to or destruction of tangible property), unless the interference causes actual physical damage to the land or other tangible property. But in Albert v Truck Ins. Exch. (2018) 23 CA5th 367, the court of appeal ruled that an excess liability insurer had a duty to defend the underlying action, which involved the insured’s blocking the only road giving access to the dominant estate, because the coverage in the umbrella policy for personal injury arising out of an invasion of the right of private occupancy may include nonphysical invasions, such as interference with an easement. See §§1.77, 10.22–10.23, 10.43.
In addition to damage for actual physical injury to property, a plaintiff may recover damages for annoyance, discomfort, inconvenience, and mental anguish resulting from nuisance or trespass. CACI 2031. There is unsettled authority about whether this category of damages rises to the level of traditional emotional distress and mental suffering damages associated with physical injuries to the person. Compare, e.g., Hensley v San Diego Gas & Elec. Co. (2017) 7 CA5th 1337, 1351 (emotional distress damages recoverable) with other recent cases in §10.43.
In Mercury Cas. Co. v City of Pasadena (2017) 14 CA5th 917, the court held that the city was not inversely liable for damage caused by a city-owned tree when it fell on private property and the owners’ home during a storm because the tree was not a work of public improvement and the city’s tree maintenance plan was not deficient. See §10.43.
Damages and other remedies for trespass, including attorney fees, are available when the conduct of an easement holder exceeds the scope of its easement over the servient owner’s land. Hoffman v Superior Ready Mix Concrete, L.P. (2018) 30 CA5th 474. See §§10.43, 10.93, 10.96.
Complaints in court actions to enforce easement rights are subject to a panoply of statutory, equitable, and factual defenses; some of the most common are listed in a new defenses’ checklist added in §10.65A.
Beginning January 1, 2019, an attorney representing a client participating in a mediation or a mediation consultation must, before the client agrees to participate in the process, provide the client with a printed disclosure containing the confidentiality restrictions described in Evid C §1119 and obtain a printed acknowledgment signed by the client stating that he or she has read and understands the restrictions. See §10.91.
The trial court may determine that there is no prevailing party, because the results of litigation may be so equivocal as to permit or even require that no party can be found to have prevailed for purposes of attorney fees. See, e.g., Marina Pacifica Homeowners Ass’n v Southern Cal. Fin. Corp. (2018) 20 CA5th 191. See §10.96.