Tract Development Services, Inc. v. Kepler
1988 Cal. App. LEXIS 460, 199 Cal.App. 3d 1374, 246 Cal. Rptr. 469 (1988)
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Rule of Law:
A private easement for a right-of-way created by the initial sale of lots with reference to a recorded subdivision map is an appurtenance to the land that passes to all subsequent grantees, even if not mentioned in later deeds, unless it is expressly excepted.
Facts:
- In 1924, a subdivision map for Temescal Gardens was recorded, delineating lots and a network of streets, including an undeveloped 40-foot right-of-way known as Diplomat Avenue.
- At one point, a single owner, A.J. Davis, and later another single owner, the Downs family, held title to blocks of land that now constitute the properties of both the Keplers and Tract Development.
- From 1943 to 1960, the Downs family maintained a fence that crossed Diplomat Avenue, but the fence had a gate in it.
- In 1980, John and Leona Kepler purchased property within the subdivision that included several lots and the western half of the undeveloped Diplomat Avenue.
- In 1984, Tract Development Services, Inc. purchased property to the east of the Keplers' land, which included the eastern half of Diplomat Avenue.
- Tract Development began grading Diplomat Avenue as part of its plan to build homes on its newly acquired lots.
- In response to the grading, John Kepler began erecting a fence down the center line of Diplomat Avenue, blocking Tract Development's access.
- A representative from Tract Development asked Kepler to remove the fence and honor the easement shown on the original subdivision map, but Kepler refused.
Procedural Posture:
- Tract Development Services, Inc. sued John and Leona Kepler in California Superior Court (trial court) seeking a declaration of its right to an easement and damages for interference.
- The trial court found in favor of Tract Development, declaring the existence of the easement and awarding $12,550 in damages.
- The Keplers, as appellants, appealed the judgment to the California Court of Appeal. Tract Development is the appellee.
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Issue:
Does a private easement for a right-of-way, created by the sale of lots with reference to a recorded subdivision map, continue to exist and pass to a subsequent purchaser when later deeds do not reference the map, a portion of the public right-of-way has been abandoned by the county, and a prior owner of the servient tenement erected a fence across it?
Opinions:
Majority - McDaniel, J.
Yes, the private easement continues to exist. When land is sold by reference to a subdivision map showing streets, a private easement is created as an appurtenance to each lot, which passes with the land to subsequent owners under Civil Code §§ 1084 and 1104 unless expressly excepted in a deed. The court rejected the Keplers' arguments for extinguishment, reasoning that: 1) The easement passed to Tract Development even though its deed did not reference the original map, because an easement transfers with the land unless specifically excepted. 2) The notation in a 1956 deed that Diplomat Avenue was 'as now abandoned' referred only to the abandonment of the public right-of-way by the county, not an express exception of the private easement. 3) The easement was not extinguished by merger, because merger requires common ownership of the entire subdivision, not just the adjacent dominant and servient lots, as every lot owner in the subdivision holds rights over the street network. 4) The easement was not abandoned, as nonuse is insufficient to show the necessary clear intent to abandon. 5) The easement was not extinguished by prescription, as the prior owner's fence had a gate, indicating the use was not sufficiently hostile or adverse to other lot owners' rights.
Analysis:
This decision reaffirms the durability of private easements created by subdivision maps in California, clarifying that they are powerful property rights that are not easily extinguished. It establishes a high threshold for extinguishment by merger, requiring common ownership of the entire subdivision, which is rarely practical. The case also reinforces the principle that abandonment requires clear and conclusive evidence of intent, not just nonuse. This provides significant certainty for developers and landowners who rely on recorded maps for access rights, ensuring that such rights are not implicitly lost through subsequent conveyances or passive disuse.
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