Legal Question in Real Estate Law in California

I remember reading your earlier post. With respect to your first paragraph, I believe that Mr. McCormick, an attorney very experienced in title issues from working for the title insurance industry, pointed out to you that documents that are recorded in the county recorder office are not erased. They remain there forever. It is only a subsequently recorded document that "clears" an earlier document by relating to the earlier document. For example, if the IRS records a tax lien, and the taxes are paid, the tax lien is not deleted or removed from the indexes or the recorded documents. A subsequent document is recorded, called a release of tax lien, that relates to the earlier tax lien. If I remember correctly, Mr. McCormick pointed out that merger extinguishes the easement, but does not erase it from the records. The title examiner has to find the original easement, and then find the documents recorded later that show the merger. But that is not the same as a judicial declaration that the easement has been extinguished, which can be recorded.

With respect to the easement layout, it is difficult to determine. One of the things that I hate about easement questions on the Lawguru forum is that it is not possible to show the arrangement of the properties, and the respective easements. It is my firm policy not to even take an easement case until I've personally reviewed the relevant title documents and walked the actual property. Even the courts require diagrams to show where everything is, as easement disputes can get confusing just by talking about them.

I answered earlier with the concern that you may be barred from instituting a new lawsuit. That is because if you could have filed a cross-complaint in the earlier action, that was related to the lawsuit against you, the doctrine of res judicata kicks in. Res judicata applies not only to causes of action that were litigated, but to causes of action that were not litigated and should have been.

Those are called compulsory cross-complaints. A cross-complaint is compulsory if the cause of action arises out of the same transaction or series of transactions or occurrences as the cause of action in the complaint. If the defendant's cause of action against the plainitff is related to the subject matter of the complaint, it must be raised by cross-complaint, because a failure to plead it will bar a defendant from asserting it in any later lawsuit. (Code Civ. Proc., sect. 426.30.)

Determining whether it is actually barred depends on facts that are not clear from your post. Those facts include the nature of the complaint against you, what you want to sue for, when your cause of action arose, and whether the dismissal is with or without prejudice.

I really suggest taking the documents concerning the underlying lawsuit and your concerns to an attorney for consultation, to determine whether you can or cannot file a new lawsuit.

Mr. Roach is entirely correct that the issues you raise that he and I have not already answered, cannot be addressed via the internet. You need to sit down with an attorney and go over it all in person.

I believe (85% sure) that you would not be prevented from asserting some kind of legal action against the neighbor due to the previous (now dismissed) lawsuit. At most, I think, the outcome of the previous lawsuit might limit the causes of action now available to you. An action voluntarily dismissed by the plaintiff's action, or failure to prosecute, prior to judgment, is not res judicata. Nevertheless, you should try to convince the neighbor not to enter your property, including explaining the doctrine of extinguishment of easements by merger of the tenements, before resorting to suit. Finally, I join in the other attorneys' recommendations that you take all the documents -- including the LawGuru questions and answers -- to a real estate attorney in your neighborhood, and obtain an in-person consultation. The attorney would be aided by being able to look at parcel maps, sketches, or whatever other visual aids you can provide, possibly even photos.