The thing that surprised me the most about your situation was your
statement that the lawyers you consulted couldn't help you at all.
I don't know, of course, what sort of conversations or consultations
you had with lawyers, but it certainly seems that there are
well-established legal principles in California that could be helpful
to you in your situation.
Before proceeding, however, please take note of the disclaimer at the
bottom of the page. I am not a lawyer, and Google Answers is no
substitute for professional legal services, so please take everything
here with the appropriate grains of salt.
There is a concept in California case law known as an "implied
easement", and a related concept, "easement by necessity".
These are similar, but not the same, but both concepts can 'create' a
legally-binding easement, even if a written record of an easement does
As I understand things (and remember, I'm not a legal professional),
the concepts boil down to the following:
An implied easement goes to the intent and history of use at adjoining
properties. For instance, if a builder subdivides a parcel of land,
builds two houses on them, and creates a single driveway to access
both homes, then it seems clear, in that case, that the intent of the
driveway was to service both properties, even if no actual written,
deeded easement was ever created. Furthermore, if both homeowners
have been sharing the common driveway for decades, then there is a
well-established history of joint use that adds weight to the implied
An easement by way of necessity focuses less on history and intent,
and more on the current circumstances. If lands were sub-divided in
such a way that a current property owner cannot have full and ordinary
use of his/her property without creation of an easement, then an
argument can be made for an easement by necessity, and California
courts are frequently sympathetic to such arguments.
Of course, it is the opinion of the courts that is key, in these cases.
You may well feel that, of course, an easement is implied, or of
course, an easement is necessary. But your neighbor may just as
firmly feel otherwise. It is cases like these that often end up
before the courts, where a binding judgement can be made one way or
another as to whether an easement exists.
One interesting facet of all this is that the courts have held that
denial of an easement where one should exist can be grounds for
collecting damages. In other words, if you suffer a financial loss
from being denied access to work on your house, and a court finds that
an easement does, in fact, exist, then the party who denied you access
may be held liable for your losses.
I mention this not so much to raise hopes that you can go to court and
recover a huge sum of money. Rather, it is more likely of value to
you as a negotiating point with your neighbor, by letting them know
(or having your lawyer let them know) that they may be incurring a
financial risk if, in fact, an easement is granted.
Below, I have provided citations and excerpts to a few of the relevant
cases in California. These should provide a bit more insight into
these concepts, and save your lawyer some work in tracking them down.
I trust the information provided will fully meet your needs. However,
if there's anything else I can do for you, don't hesitate to ask.
Just post a Request for Clarification, and I'm at your service.
Best of luck,
[This recent case affirmed that an implied easement existed, and also
affirmed that it was appropriate to award damages, since the value of
the property was lowered due to the lack of access]
FRAIDA DUBIN v. WILLIAM R. ARNOLD, et al.
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION THREE
January 25, 2006
...In this appeal, defendants...challenge a judgment granted in favor
of plaintiff...on her claim that defendants interfered with an
easement for roadway and utilities purposes that she has over their
property for the benefit of her adjoining property, and that such
interference caused her property to decrease in value which resulted
in her having to sell it for substantially less money than she would
have obtained for it if it were not burdened with the...easement
controversy....We find that none of defendants' appellate arguments
has merit, and we will therefore affirm the judgment
...The Nature of Implied Easements...when an owner of two adjoining
pieces of land sells one of them, or the owner of a piece of land
sells a part of it, the purchaser takes the portion sold with all the
benefits that appear at the time of the sale to belong to it, as
between it and the property that the vendor retains...
[This case is frequently cited in implied easement cases]
DALE SOBEK v. MICHAEL GAUGHAN et al.
COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT
May 14, 2003
...In this action involving neighboring cattle ranches located on
opposite sides of a canal, plaintiff Dale Sobek sued to prevent
defendants Michael and Martha Gaughan (the Gaughans) from using a road
over plaintiff's property for ingress and egress. The Gaughans
cross-complained to establish their right to use the road as an
easement over plaintiff's land, and the trial court found that they
owned an established right-of-way over plaintiff's property.
...Plaintiff appeals, challenging the trial court's determination that
there exists an implied easement over his property. We shall affirm
[Note mention here of other terms or art pertaining to recognition of easements]
...The Gaughans cross-complained to quiet title in their right-of-way
over the road easement on theories of express grant, prescriptive
right, implied reservation, implied grant, and easement by
necessity...When the case was tried to the court, the Gaughans elected
to proceed on theories of express or implied easement only.
[easement was ultimately found to exist even in the absence of a written easement]
...Plaintiff testified at trial that he purchased the property in
reliance on his real estate agent's representations that there was no
"deeded easement" on the property. Although he was aware that the road
was being used to reach the Gaughans's property from across the canal,
...it was his opinion that "there was no recorded easement, and one
did not exist."
[This case provides a good discussion of easement by way of necessity,
and also shows some of the pitfalls that can arise in the legal
process...the easement of necessity was originally denied by the lower
court, but then established by the appeals court]
THEODORE KELLOGG v. RONALD GARCIA et al.
COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT
102 Cal. App. 4th 796; 125 Cal. Rptr. 2d 817
October 2, 2002
...The judgment is reversed and the case remanded to the trial court
with directions to enter judgment that the Kelloggs have an easement
by necessity across the Garcias' property. The Kelloggs shall recover
their costs on appeal.
...Landowners brought a quiet title action against their neighbors,
asserting an easement by necessity over defendants' property. The
trial court entered judgment in favor of defendants, ruling that an
easement of necessity could not arise, since the common owner of the
two properties when they were originally conveyed was the federal
...The Court of Appeal reversed the judgment and remanded with
directions to the trial court to enter a new judgment that plaintiffs
had an easement by necessity across defendants' property. The court
held that plaintiffs established the requisite conditions for an
easement by necessity across defendants' property, since they
established that there was a strict necessity for the right-of-way,
and that the dominant and servient tenements were under the same
ownership at the time of the conveyance giving rise to the necessity.
...An easement by way of necessity arises by operation of law when it
is established that (1) there is a strict necessity for the
right-of-way, as when a claimant's property is landlocked, and (2) the
dominant and servient tenements were under the same ownership at the
time of the conveyance giving rise to the necessity. A way of
necessity is of common law origin, and is supported by the rule of
sound public policy that lands should not be rendered unfit for
occupancy or successful cultivation. A way of necessity is the result
of the application of the presumption that, whenever a party conveys
property, he or she conveys whatever is necessary for the beneficial
use of that property, and retains whatever is necessary for the
beneficial use of land he or she still possesses. The legal basis of a
way of necessity is the presumption of a granting arising from the
circumstances of the case; this presumption of a grant, however, is
one of fact, and whether a grant should be implied depends upon the
terms of the deed and the facts in each particular case. The law never
imposes an easement by necessity contrary to the express intent of the
parties, since it is based on an inferred intent arising from the
strict necessity of access for the conveyed property. A way of
necessity, having been created by the necessity for its use, cannot be
extinguished so long as the necessity exists. An easement by necessity
may persist even though the original grantor and grantee no longer own
the properties in question.
[Another easement by way of necessity case]
DOUGLAS LARSSON v. JIMMY L. GRABACH et al.,
COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT
121 Cal. App. 4th 1147; 18 Cal. Rptr. 3d 136
August 25, 2004, Filed
...A family trust that owned a parcel of property brought a quiet
title action against a neighboring property owner, seeking a court
order that the trust held an easement across the neighboring property
to access a paved public road. A common owner of both properties died
intestate and the property was distributed by probate court decree to
his heirs. A dirt road used by the ancestor and others ran across the
property. When the current owner purchased the neighboring property,
he locked the gates to prevent access to the road by the beneficiaries
of the trust. The court ruled that the trust held an easement by
necessity and an easement by implication.
...The Court of Appeal affirmed the judgment only insofar as it found
the existence of an easement by implication and reversed the judgment
only insofar as it found the existence of an easement by necessity,
and remanded to the trial court with directions to modify the
judgment. The court held that an easement by implication can be
created when real property is transferred by court decree, such as
when the owner of real property dies intestate and the property is
divided and distributed to the heirs by court decree. Unless the heirs
of the common owner and the probate court intended the heir inheriting
the property currently held by the family trust to have a parcel with
no access to a public road, they must have intended and reasonably
expected the heir to use the unpaved road to reach her property and
the cabin she later built.
I'm sure you've noticed by now that these cases are not perfectly
parallel to your own situation, and they largely revolve around access
to the property over roads, rather than access for means of affecting
Nonetheless, these are among the more recent cases establishing
precedent over these types of easements, and cases that would likely
be considered by any California court asked to rule in your case as
Again, let me know if there's anything more I can do for you.