THE DUBIOUS RISE OF THE EQUITABLE ACCESS EASEMENTEdward W. Newman   |   (State Bar of California, California Real Property Journal, Vol. 30, No. 4, 2012)

In 1911 the California Supreme Court rejected the notion that trial courts are empowered to transfer valuable property rights from one litigant to another based on a “balancing of hardships”,[i] proclaiming instead that the equitable power of the trial court did not allow the seizure of private property for other than a public use, and that “every substantial material right of person or property is entitled to protection against all the world”.[ii] Over the next 100 years the California appellate courts have steadily retreated from that traditional philosophy, culminating in two recent decisions in which the Second District Court of Appeal affirmed an award to the plaintiff in each case of a permanent access easement based on the trial court’s assessment of the relative hardships, and did so without requiring any compensation to the fee owner.[iii] In the process, the courts have undermined settled easement law, created uncertainty and unpredictability for property owners and their lawyers, and ignored statutory and constitutional restrictions against taking private property.


Until recently the relative hardship doctrine was limited to determining whether to enjoin a minor physical encroachment over the plaintiff’s property. The leading opinion in that regard was and still is Christensen v. Tucker,[iv] a 1952 decision by the First District Court of Appeal. In that case defendant’s cement abutment, garage and badminton court extended over the dividing boundary with plaintiff’s land. The court surveyed the cases in California and elsewhere discussing whether a trial court has any discretion to deny a mandatory injunction to remove an encroachment based on relative hardship, and found them to be in hopeless conflict, but concluded that “the numerical weight of authority in this state recognizes the rule that, where the encroachment does not irreparably injure the plaintiff, was innocently made, and where the cost of removal would be great compared to the inconvenience caused plaintiff by the continuance of the encroachment, the equity may, in its discretion, deny the injunction and compel the plaintiff to accept damages”.[v]

Applying its legal reasoning to the specific facts of the case, the Christensen court held that if the trial court awards damages in lieu of an injunction requiring the removal of an encroachment, any affirmative relief to the defendant should not be greater than reasonably necessary to protect the defendant, and should provide for termination of the easement if the defendant should ever abandon the encroachments.[vi]

The California Supreme Court followed Christensen in Dolske v. Gormley,[vii]reversing the grant of an injunction to remove a pillar, roof eaves and two gas meters and pipes that encroached a matter of inches over the adjoining property. The Supreme Court held that the trial court abused its discretion in awarding an injunction rather than damages, but also noted that upon removal of plaintiff’s present house any encroachment rights would terminate.[viii]

The California Supreme Court followed Christensen again in Brown Derby Hollywood Corporation v. Joseph Hassen[ix], where there was no irreparable injury to the plaintiff resulting from a physical encroachment, and once again it insisted on a sufficient award of damages to compensate the plaintiff for the trespass.

The relative hardship doctrine was extended in 1969 in Miller v. Johnston[x] to 50 square feet of roadway, although judgment was reversed for failure to award damages to defendants for the rights thereby created in plaintiffs, and in 1970 in Donnell v. Bisso Brothers[xi] to a small portion of a roadway that encroached onto defendant’s land, provided that “an appropriate counterbalance is effected”. In 1988, a court of appeal applied the relative hardship doctrine of Christensento protect a sewer line that had been crossing plaintiff’s property for 25 years.[xii]

Christensen v. Tucker was acknowledged as “the definitive opinion” on the relative hardship doctrine in a 2007 court of appeal opinion holding that the trial court correctly denied an injunction to remove two minor encroachments of a block wall, a small portion of a sand trap, some underground wires, and several motors that ran a swimming pool and waterfalls.[xiii] The rights granted to the defendants to maintain those encroachments were described as a “protective interest”, which could not be expanded, which terminated when the defendants sold or ceased residing in their home, and which required the payment of compensation to plaintiff.


As the foregoing cases illustrate, generally the relative hardship doctrine of Christiansen v. Tucker has involved the denial of an injunction for removal of minor or insubstantial physical encroachment, usually of longstanding existence, with the encroacher being awarded rights limited in both scope and time to maintain the encroachment, and being required to compensate the landowner for the trespass.

Two recent decisions in Linthicum v. Butterfield and Tashakori v. Lakis constitute a radical extension of those previous cases beyond minor physical encroachments by awarding full “equitable easements” for access in favor of parties whose properties might otherwise be landlocked based on the trial court’s view of the relative hardships. These judicially created access easements appear to be unlimited in duration, and were awarded without any compensation to the landowners.

Linthicum involved a large tract of mountainous land located near the Los Padres National Forest in Santa Barbara County. The roadway in question had been used by defendant Butterfield for many years. The trial court found that construction of an alternative route would involve significant engineering problems and that county approval would be doubtful. The trial court disregarded Linthicum’s arguments that Butterfield did have alternative access, and that the continued existence of the roadway would prevent Linthicum from developing his own property. The appellate court then considered the evidence in a light most favorable to Butterfield, and deferred to the sound discretion of the trial court.[xiv] As to compensation, the appellate court agreed with the trial court that Linthicum had failed to prove his damages adequately.[xv] Neither the trial court nor the appellate court explained why given the longstanding use, Butterfield could not have employed one of the traditional theories for creating an easement such as easement by prescription or easement by necessity.

The court in Tashakori extended Linthicum even further in granting the plaintiff an equitable easement over defendant’s land for access to plaintiff’s undeveloped lot, even though there had been no significant prior use of the roadway in question. The plaintiffs in the case had purchased a property with a home on it as well as an adjoining empty lot. When plaintiffs discovered that they could not develop the lot because they had no legal access to it, they filed suit seeking an equitable easement over defendants’ property. The trial court considered irrelevant defendants’ concerns about privacy should the vacant lot become buildable, and found instead that the plaintiffs would suffer irreparable injury by denial of an equitable easement for ingress and egress to make their lot buildable. As in Linthicum, the trial court found that there was insufficient evidence to award compensation to the landowner. The appellate court once again deferred to the trial court and found no abuse of discretion.

Aside from judicially granting an access easement in each case without compensation, there is nothing in the Linthicum or the Tashakori opinions addressing (i) any time limits to the judicially created easements, or (ii) whether those easements are subject to any modifications or termination in the future should the circumstances or the equities change.


As judicial extensions of the equitable easement theory, the Linthicum and Tashakori decisions raise obvious concerns over the constitutionality of appropriating property rights from one litigant for the benefit of another. In fact, several previous California appellate courts have noted that when a trial court refuses to enjoin encroachments on a neighbor’s land, the net effect is to give a private person the right of eminent domain,[xvi] but none thus far has analyzed the statutory and constitutional issues in depth.

Under California law, the power to take private property is strictly limited and may be exercised only if the taking is for public use and only if a statute specifically grants the individual or entity the power of eminent domain.[xvii] Currently, California provides by statute that, under certain circumstances, an owner of real property may acquire by eminent domain an appurtenant easement to provide utility services to the owner’s property,[xviii] but there is no such comparable provision for an access easement.[xix] California eminent domain law was thoroughly revised in 1975.[xx] Before that enactment, Civil Code section 1001 authorized private persons to condemn property for any public use listed in former section 1238. That all changed in 1975 with the revised eminent domain law abolishing all private condemnation authority. However, in 1976 the Legislature restored private condemnation authority to owners of private property for the limited purpose of acquiring appurtenant easements to provide utility service to their property, but not access easements.[xxi] Thus the California Legislature has by implication rejected the idea of appropriating access rights from one person for the benefit of another. The exercise of equitable discretion by the judiciary in Linthicum andin Tashakori to create such rights where the Legislature has declined to do soundermines that exercise of legislative authority.[xxii]

Aside from California statutory law, the 5th and 14th amendments to the U.S. Constitution prohibit government from taking private property without compensation. In a leading case, the U.S. Supreme Court invalidated a statute requiring an apartment owner to allow a CATV company to install its facilities on her property, even though the area occupied was minimal.[xxiii] The New York Court of Appeals had ruled that the use of a portion of appellant’s roof and the side of her building did not amount to a taking. The Supreme Court reversed, stating that “constitutional protection for the rights of private property cannot be made to depend on the size of the area permanently occupied.” That decision as to a utility easement for cable television has been followed in California, in a case holding that the physical invasion of private property is no less an invasion if it is authorized by the courts through the granting of a preliminary injunction than if authorized by the Legislature enacting a statute mandating a right of access to cable companies.[xxiv] The court observed that the taking of private property occurs in both instances.[xxv] Those decisions, as well as the California statutory restrictions on taking private property, cast serious doubt on the soundness of the judicial takings in Linthicum and Tashakori.[xxvi]


The recent extension of the relative hardship doctrine to the creation of access easements has already raised various concerns among real estate practitioners and commentators. The Tashakori decision was recently characterized in this journal as creating an easement “out of whole cloth”, thereby “eroding traditional limitations on creating an easement”.[xxvii] In the past the primary methods of establishing an access easement have been by express grant or reservation, by prescription, by implication, or by necessity. The requirements for those methods of creating an easement have remained constant for many years.[xxviii]

An express easement requires a written instrument, usually a deed, by which the grantor either grants an easement over property he or she owns, or reserves an easement over property he or she conveys to another party.[xxix] The instrument, containing the name of both the grantor and the grantee, is typically recorded in the office of the county recorder in which the property is located.[xxx]

Prescriptive easements are a creature of both statutory and case law. The required elements are well settled. The claimant must show use of the property which has an open, notorious, continuous and adverse for an uninterrupted period of five years.[xxxi]

An easement by implication is based on preexisting use. The elements required to establish an implied easement are (i) a separation of title to the two parcels in question; (ii) long continued and obvious prior use which shows that the easement was meant to be permanent; and (iii) the easement must be reasonably necessary to the beneficial enjoyment of the land.[xxxii]

An easement by necessity also arises from an implied grant or implied reservation in certain circumstances. The two indispensable factors for an easement by necessity are (i) strict necessity for the claimed right-of-way, and (ii) the dominant and servient tenements were under common ownership at the time of the conveyance giving rise to the necessity.[xxxiii]

The vitality of those traditional rules for creating an access easement by express grant or reservation, by prescription, by implication or by necessity is now questionable in light of the equitable easement theory adopted in Linthicum and Tashakori. A claimant, for example, who can prove only four years adverse use of an access easement, will now be able to pursue a theory of relative hardship to circumvent the five year requirement for a prescriptive easement. Another claimant could seek to sidestep the requirement of common ownership to establish an easement by necessity.

The case for having the trial courts exercise their equity powers in the easement context was articulated in Hirshfield v. Schwartz,[xxxiv] proclaiming that the object of equity is to do right and justice, and it does not wait upon precedent which exactly fits the facts in controversy, and is not confined by the rigid rules of law.[xxxv] While that attitude toward the role of a trial judge may have merit in general, in the context of property law there is also great value in certainty and predictability. Encouraging trial courts to employ a highly discretionary equitable power will expand the potential for inconsistent results, and will ultimately lead to more litigation. Trial courts have no metric for hardship in easement cases.[xxxvi] Given the factors to be considered, results will vary from one trial court to another. In the trial court in Tashakori, for example, the invasion of the defendant’s privacy by making the adjacent Tashakori lot buildable was considered to be irrelevant to the hardship analysis. In Linthicum the trial court disregarded the negative impacts the access easement would have on plaintiff’s right to develop his own property. Another trial judge might take a different view on those points, tipping the balance of the equities the other way. In Linthicum and in Tashakori, the landowners had their own evidence and arguments as to the equities in their respective cases. In the published opinions, the appellate courts recited only those facts and those equities in support of the trial court’s ultimate exercise of its equitable discretion, and made clear that there is no realistic appellate remedy to challenge the trial court’s exercise of that discretion. Because there is no analytic measure of hardship and because there is no effective review of a trial court’s exercise of equitable discretion, the value of sacrificing the certainty and predictability of established easement law for the nebulous application of any given judge’s idea of “right and justice” is problematic at best.

In contrast to Linthicum and Tashakori, in 2009 the California Supreme Court reaffirmed the traditional attitude toward real property rights in Murphy v. Burch, an easement by necessity case.[xxxvii] In a unanimous opinion the Supreme Court declared that despite the public policy that land should not rendered idle due to lack of access, the need for access, by itself, does not allow a landlocked property owner to burden a neighbor’s land. The judicial creation of access easements in Linthicum and Tashakori based on balancing the hardships contravenes that conventional philosophy as reaffirmed by the Supreme Court; yet the appellate court in both cases failed to mention Murphy v. Burch.

The decisions in Linthicum and Tashakori creating equitable easements in favor of one litigant over the land of another leave many questions unanswered. Neither opinion addresses specifically whether the access easement being created is appurtenant or in gross, or whether there is any limit on the duration of the easement, although the implications are that the easements are perpetual and run with the land.

Since the decisions are based on balancing the hardships at the time of trial, another question arises as to whether such an equitable easement is subject to termination or modification if circumstances or equities change. The concept of hardship balancing derives from the court’s power to deny an injunction to remove an encroachment and award damages instead. Injunctions are normally subject to modification or termination whenever there has been a material change in the facts on which the injunction was granted or when a modification would serve the ends of justice.[xxxviii] How and under what circumstances an equitable access easement may be modified or terminated is unclear, as is the validity of such an easement from a title insurance standpoint.

Linthicum and Tashakori also raise issues regarding compensation to be awarded to the landowner when an equitable easement is created by the court. California eminent domain law requires that compensation be awarded for any property taken[xxxix] and provides a comprehensive scheme for deciding the amount to be paid. Under traditional eminent domain law, the value of the property to the taker, as distinguished from the owner’s loss, is not considered in determining the value of the property taken.[xl] That makes sense when the taker is a governmental entity, but less so when property rights are being shifted from one private owner to another. In Tashakori, for example, the plaintiff’s lot was unbuildable for lack of access. Making the lot buildable by obtaining access through defendant’s property obviously enhanced the value of plaintiff’s land. Typically as a private transactional matter, the parties would negotiate compensation for the easement based on some reasonable split of the value added. A similar approach would seem to make sense when the court appropriates an equitable easement from one party for the benefit of another.

Finally, it is unclear whether the equitable easement doctrine will now be available for a property owner to obtain utility easements over his or her neighbor’s property as an alternative to or as a way to circumvent the statutory eminent domain procedure.


In the wake of Linthicum andTashakori, we can expect claimants to plead and seek to prove an equitable easement theory as a matter of course. Lawyers for both sides will need expert testimony on the value of the easement being litigated in case an equitable easement is awarded, and trial courts will need to address the many other issues spawned by Linthicum and Tashakori. Ultimately, the constitutional and statutory taking concerns will need to be tackled.

A legislative response to the Linthicum and Tashakori cases could restore some certainty and predictability for property owners and their lawyers, but given the complexity of the issues and other legislative priorities, that legislative action is unlikely. In a similar vein, thirty years ago three members of the California Supreme Court called upon the California Legislature to study the law relating to prescriptive easements and create statutes that reflected today’s realities[xli], but to date nothing has been done. Most likely unless the California Supreme Court provides some additional guidance with respect to equitable easements, the lower courts will be left to sort the issues out on a case by case basis, and easement claimants can be expected to test the limits of Linthicum and Tashakori as authority for appropriating valuable property rights from one landowner for the benefit of another.


1 Also variously referred to as relative hardship, balancing equities, or balancing conveniences.

2 Hulbert v. California Portland Cement Co. (1911) 161 Cal. 239, 251.

3 Linthicum v. Butterfield (2009) 175 Cal.App.4th 259; Tashakori v. Lakis (2011) 196 Cal.App.4th 1003.

4 Christensen v. Tucker (1952) 114 Cal.App.2d 554.

5 Id. at 559.

6 Id. at 563.

7 Dolske v. Gormley(1962) 58 Cal.2d 513.

8 Id. at 521.

9 Brown Derby Hollywood Corporation v. Joseph Hassen (1964) 61 Cal.2d 855.

10 Miller v Johnston (1969) 270 Cal. App.2d 289.

11 Donnell v. Bisso Brothers (1970) 10 Cal.App.3d 38.

12 Field-Escandon v. DeMann (1988) 204 Cal.App.3d 288.

13 Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749.

14 Linthicum v. Butterfield 175 Cal.App.4th 259-267.

15 Id. at 268.

16 Hirshfield v. Schwartz, 91 Cal.App.4th 749; Donnell v. Bisso Brothers 10 Cal.App.3d 38; Christensen v. Tucker (1952) 114 Cal.App.2d 554; and Miller v. Johnston 270 Cal.App.2d 289.

17 Cox Cable San Diego, Inc. v. Bookspan (1987) 195 Cal.App.3d 22; California Code of Civil Procedure § 1240.020.

18 California Civil Code § 1001; California Code of Civil Procedure § 1245.325.

19 Murphy v. Burch (2009) 46 Cal.4th 157, 170.

20 California Code of Civil Procedure §1230.010, et seq.

21 See L&M Professional Consultants, Inc. v. Ferreira (1983) 146 Cal. App. 3d 1038, 1048.

22 See California Constitution Art. III, § 3; Griffin v. Colusa County (1941) 44 Cal. App. 2d 915, 924; and Nader Automotive Group, LLC v. New Motor Vehicle Board (2009) 178 Cal. App. 4th 1478, 1485 regarding judicial decisions conflicting with legislative acts and the separation of powers.

23 Loretto v. Teleprompter Manhattan CATV Corp. (1982) 102 S.Ct. 3164.

24 Cox Cable San Diego v. Bookspan, 195 Cal. App.3rd 22.

25 Id. at 27.

26 See also City of Needles v. Griswold (1992) 6 Cal.App.4th 1881; and Judlo, Inc. v. Vons Companies, Inc. (1989) 211 Cal.App.3d 1020. For a discussion of judicial takings and the recent U. S. Supreme Court decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection., et al., ____U.S. _____, 130 S. Ct. 2592 (2010) see Bradley D., Pierce and Mona Nemat, Judicial Takings: A Decision Without A Decision, California Real Property Law Journal, Volume 29, No. 1, p. 4 (2011). Cox Cable San Diego v. Bookspan, 195 Cal.App.3d 22, was not addressed in that article.

27 Basil S. Shiber and Karen R. Turk, The Top Ten Real Property Cases of 2011, California Real Property Journal, Vol. 30, No. 1, p. 10 (2012).

28 See generally Miller & Starr, California Real Estate §§ 15:14-19, 27-38 (3rd ed.).

29 See Miller & Starr, California Real Estate § 15:14 (3rd ed.); Elliott v. McComb (1941) 17 Cal.2d 23.

30 See Miller & Starr, California Real Estate § 15:15 (3rd ed.).

31 California Code of Civil Procedure § 321; Zimmer v. Dykstra (1974) 39 Cal.App.3d 422, 430; Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 587.

32 Orr v. Kirk (1950) 100 Cal.App.2d 678, 681; Casky v. Goodman (1980) 102 Cal.App.3d 762.

33 Murphy v. Burch (2009) 46 Cal.4th 157, 163.

34 Hirshfield v. Schwartz, 91 Cal.App.4th 749, 876

35 Id. at 876.

36 In economic theory, the “util” is sometimes used as a hypothetical measure of satisfaction. So far no one has proposed an analogous unit of measure for hardship in easement cases.

37 Murphy v. Burch, 46 Cal.4th 157, 171.

38 California Civil Code § 3424, California Code of Civil Procedure § 533.

39 California Code of Civil Procedure § 1263.310.

40 U.S. v. Miller (1943) 63 S.Ct. 276.

41 Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 305 Cal.3d 564.

©2014 Newman & Marcus. This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship.