In a fact intensive decision, the California Court of Appeal, Second
District, recently affirmed a trial court’s exercise of its power to create an
equitable easement without monetary compensation. That decision took place in
the matter of Linthicum v. Butterfield (2009) WL 1782954 (“Linthicum Case”)
which was issued on June 24, 2009.
In the Linthicum Case, the plaintiffs bought a parcel of land in Santa
Barbara County on which defendant owners of neighboring parcels used a
roadway, the only access to their land. The plaintiffs sought an injunction to
prevent the defendants from using the roadway. The defendants crosscomplained
to quiet title to an easement for the roadway. The trial court quieted
title to an equitable easement in favor of defendants and awarded no damages to
the plaintiffs. On appeal, the Court of Appeal affirmed the trial court’s decision
although it remanded for the trial court to specify the width of the roadway
The facts of the Linthicum Case are somewhat complex. The matter
concerned a large tract of mountainous land located near the Los Padres
National Forest in Santa Barbara County. Originally, the entire tract belonged to
the United States Government (sometimes herein referred to as the “Forest
Service”). In 1891, the government patented nine parcels and retained one (the
parcel retained by the government is referred to herein as “parcel 1”).
In 1943, an investor named Griswold obtained the nine parcels which the
government did not retain. Griswold wanted access to a public road over a
portion of parcel 1 (which the government had retained). In 1947, Griswold
obtained a special use permit (“SUP”) from the government to grade a roadway
over the government’s parcel. In 1949, Griswold conveyed his nine parcels to a
third party, named Hyde, and the government reissued the SUP in Hyde’s name.
Beginning in 1958, Hyde conveyed the nine parcels to third parties at various
The government (the Forest Service) retained parcel 1 until 1998, when it
conveyed the parcel to an investor in exchange for another parcel. None of the
property owners who acquired the parcels from Hyde had the SUP reissued in
their names – a fact which they admitted. However, all claimed that they had
used the roadway on parcel 1, one claiming as long as 50 to 55 years. All claimed
their parcels had no value without the roadway.
The plaintiff, Linthicum, and another person acquired parcel 1 in 2000.
Linthicum had substantial knowledge of the area dating back to at least 1974 and
investigated the Forest Service files prior to acquiring parcel 1. Linthicum sued
to quiet title for the roadway and suggested that another area could be used as a
route to the nine parcels which had been conveyed over the years by Hyde.
Linthicum also claimed he could not develop parcel 1 (which he subdivided into
parcel 1 and parcel 1-a after acquiring it) if the defendants continued in their use
of the roadway.
At trial, the trial court conducted a site visit. After viewing the terrain
where Linthicum’s proposed alternative roadway would be situated, the trial
court concluded that the disputed roadway over parcel 1 was the only possible
access way to the defendants' parcels, an alternative access way could not be
developed and the plaintiffs would be able to enjoy the full use of parcel 1 with
the roadway remaining where it was. Finding the "balance of equities" favoring
the defendants' continued use of the roadway, the trial court rendered a
judgment which quieted title to a 66-foot-wide right-of-way over parcel 1 and
awarded no damages to the plaintiffs.
Linthicum appealed arguing that the doctrine of “balancing
conveniences” or “relative hardship”, where the trial court may create an
easement by refusing to enjoin an encroachment or nuisance, see, 13 Witkin,
Summary of Cal. Law (10th.ed 2005) “Equity” § 172, did not apply unless a
weighing of the three factors set forth in Christensen v. Tucker (1952) 114
Cal.App.2d 554 (“Christensen Case”) so required. Those factors are (i) the
defendant must be innocent, i.e. the encroachment must not be the result of
defendant's willful act; (ii) if plaintiff will suffer irreparable injury by the
encroachment, the injunction should be granted regardless of the injury to
defendant, except where the rights of the public will be adversely affected and
(iii) the hardship to defendant by the granting of the injunction must be greatly
disproportionate to the hardship caused plaintiff by the continuance of the
encroachment and this fact must clearly appear in the evidence and must be
proved by the defendant.