Case of the Day, Wednesday, November 3, 2021


Some expressions just bug me. “Free gift” is one of them. Of course it’s free. It’s a gift, you knucklehead. What kind of gift would it be if it were not free?

“Free gift” is redundant, a stupid expression, like “past history” and “foreign imports.” And speaking of stupid, sometimes you wonder how someone can have so much money and so little else to do that he or she can afford to fritter time and money away on a stupid lawsuit.

Southern California Edison Co., the company responsible for the Dixie Fire in California, has easements all over southern California for transmission and distribution lines. In today’s case, it had a 10-foot wide easement across Steve Severns’ property for maintaining its lines in such a way as not to set all of LA County aflame.

No problem there. But the easement was vague on how SCE was to get to the easement. The language just said “free access,” and for 77 years, the utility and a succession of property owners understood that a route the owner and the company had agreed upon shortly after the easement was granted was the access easement SCE was entitled to use.

But then Steve bought the place. When SCE needed to replace a pole (and, Steve, you can see what happens when California electric utilities don’t maintain their lines), Steve decided he didn’t like the access route SCE had used for 77 previous years. Trying to be accommodating, SCE agreed to a different route, one so vertical it had to pull its trucks to the easement with bulldozers. But then Steve, who believed without any evidence to back him up, that SCE had agreed to restore the route (where the old route had always been left in place), sealed up his property. He told SCE to use a helicopter to get to its easement.

When SCE sued, demanding the “free access” the easement promised, Steve said, “Oh no, that ‘free access’ just means SCE is free to move around inside its 10-foot easement.”

The law has developed many useful laws of statutory and contract construction over the years. One of the principal canons is to give purpose to every part of the contract, so that no clause is redundant, surplusage or meaningless.

The court put that canon to good use here. Steve’s interpretation of “free access” to mean SCE had free access only within the described 10-foot easement was just plain stupid. It’s SCE’s easement. Of course it had free access within it.

But that being the case, and the canon of construction instructing us to give meaning to every term, then “free access” must mean something else.

Southern California Edison Co. v. Severns, 39 Cal. App.5th 815 (Ct.App. Cal., 2nd Dist., Sept. 10, 2019). Steve Severns owns a 16-acre parcel of property which is subject to a public utility easement granted to Southern California Edison Company. SCE maintains electrical power lines and supporting structures within a 10-foot-wide strip along the eastern boundary of the property. That strip is described by metes and bounds in the recorded conveyances. Each conveyance also grants SCE “free access” to its electrical facilities.

Steve did not dispute that SCE was entitled to use the 10-foot-wide strip described in the easement for utility purposes, but the parties disagree as to whether SCE has the right to gain access to its easement by traversing other portions of the property. For nearly 80 years, until Steve came along, the property owners allowed SCE crews such access. But not Steve.

Steve bought the property in 2006. In 2008, SCE needed to replace three poles. SCE employees discussed the routes that could be used to reach the poles. Steve objected to SCE’s use of the route historically utilized to access pole 5, because he said that SCE trucks had damaged pipes along the route and that it was too close to the back of his house. The parties agreed SCE would build an alternative route. The newly created route was steep and, during the work on the poles, the trucks had to be pulled up the steepest stretch with a bulldozer.

Steve complained the new 2008 route was to be temporary. While there was no written agreement, Steve testified George Perez, an SCE representative, told that after the pole was replaced SCE would put the property back in the same condition that it was in prior to the denied the existence of any such agreement, and refused.

Because of the dispute, Steve changed the gate access code/tumbler box and took other steps to prevent SCE’s access. He told SCE to use adjacent properties or helicopters to access its electrical facilities. SCE sued for interference with easement and declaratory relief. Steve cross-complained, seeking damages for nuisance, trespass and ejectment.

The trial court found, based on the easement language, that SCE had been granted “floating easements” over the property to access its electrical facilities. The floating easements became “fixed” easements when SCE and the property owners agreed on the access routes years before. At that point, SCE became “the owner of an easement of reasonable width” over each agreed-upon access route. The trial court allowed SCE “‘free’ (i.e. unimpeded) access” to those routes.

The trial court further found SCE and Steve had agreed by acquiescence to abandon the original route to pole 5 and to change the location of that access easement to the 2008 route. The court concluded that while SCE may not construct a new access route or use portions of the property falling outside the 10-foot wide strip and the delineated access routes, it may perform geotechnical testing incident to repairs and improvements on those routes and trim or remove interfering trees.

Steve appealed.

Held: SCE held a floating easement to cross the property.

A basis rule of interpreting real estate conveyances, including easements, holds that the intent of the parties to the easement is the paramount consideration. The Court noted that it is not the intent of the grantor that governs in such cases. It is the joint intent of the grantor and the grantee. Grants are to be interpreted in like manner with contracts in general. The interpretation of an easement, which does not depend upon conflicting extrinsic evidence, is a question of law.

Recorded conveyances must be interpreted as a whole, with each clause aiding the interpretation in the attempt to give purpose to every part, and the interpretation should, where possible, give effect to every part so that no clause is redundant.

The Court observed that some expressly granted easements – commonly known as floating easements – are not specifically defined as to location by the creating conveyance. These easements are nonetheless fully valid and enforceable by their holders. An easement granted in general terms, nonspecific as to its particular nature, extent or location, is perfectly valid, the Court said, entitling the holder to choose a reasonable location and to use such portion of the servient tenement as may be reasonably necessary for the purposes for which the easement was created.

What’s more, the use actually made by the holder over a period of time fixes the location and the nature and extent of the use. Such an easement necessarily carries with it not only the right but also the duty to maintain and repair the structure or facility for which it was created.

Where an instrument conveys or reserves an unlocated, floating easement, it is presumed that the parties intended to establish a reasonably suitable and convenient route in view of the anticipated needs of both parties. The easement right cannot be exercised over the entire servient tenement, but until the easement is located by agreement of the parties, it is a cloud on the title to all of the property.

In this case, the Court said, SCE’s recorded conveyances do not identify the portion or portions of the property that the company may use for “free access” to its electrical facilities. Steve argued the “free access” language in the conveyances simply means SCE is entitled to move freely within the 10-foot-wide metes-and-bounds easement area. Steve’s interpretation made no sense. “It is undisputed,” the Court observed, “that the recorded conveyances, taken together, grant SCE easements over the 10-foot-wide strip for utility purposes. This grant would be meaningless if SCE could not move freely within that strip to construct, replace, inspect and maintain its electrical power poles, lines and equipment.” Because SCE’s right to move freely within the 10-foot area is not dependent upon the ‘free access’ language, the Court ruled, “the only reasonable interpretation is that the grantors of the easement intended, through that language, to grant SCE some right of access over the property to reach its electrical facilities. Under Severns’ interpretation, the “free access” language would be both redundant and unnecessary.”

Even if the Court were to assume the “free access” language was ambiguous, the extrinsic evidence established the grantors understood the recorded conveyances granted SCE the right to traverse the property to access the 10-foot-wide strip. “It is a cardinal rule of construction that when a contract [or conveyance] is ambiguous or uncertain,” the Court held, “the practical construction placed upon it by the parties before any controversy arises as to its meaning affords one of the most reliable means of determining the intent of the parties.” Here, the evidence confirmed that for decades the grantors freely allowed SCE to drive over the property to access its electrical facilities. Even Steve s permitted access until the dispute arose over the restoration of the 2008 route. “This historical usage of the property is consistent with our interpretation of the conveyances,” the Court ruled.

The exception to the historical easement involved the route to pole 5. The route changed in 2008 when Steve asked SCE to construct an alternative route to that pole. Because substantial evidence supported the trial court’s finding that “the original route across the north side of the house has been abandoned and that the road along the east side of the house has been established as the new access route,” the new route because SCE’s new easement route. “We are not persuaded,” the Court said, “by Severns’s argument the 2008 route was meant to be temporary. The court heard conflicting testimony on this issue and ruled in SCE’s favor. Such credibility determinations are the province of the trial court.”

– Tom Root


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