Legal Question in Real Estate Law in California

It is doubtful a title company would agree to corect this; a court order would be required.

That is not something that a title company does. The determination of whether an easement is extinguished by merger is made by a trial court, in a lawsuit involving a quiet title action, which gives all interested parties the right to be heard and determine whether it has been heard.

You should have had that determined by a cross-complaint at the time the lawsuit against you was brought. Now, your claim may be barred against you on the grounds of res judicata.

I spent the better part of a decade as a V.P. and associate general counsel for the parent company of Chicago Title, Fidelity Natl. Title Ins. Co., and a host of other real estate service companies. I can assure you that there is, in fact, no error in the chain of title, and even if there was, a title company cannot just change the public record. Title companies just search the public record (actually these days their own copy of the public records) and offer to insure clear title subject to listed exceptions that they find, if any.

The public record in the situation you describe shows an easement, then merger of title between the dominant and servient tenements, which by operation of law extinguishes the easement. The deed from the holder of the dominant tenement to the holder of the servient tenement, or from the holder of the servient to the holder of the dominant as the case may be, removed the easement just as effectively as if the holder of the dominant tenement had quitclaimed the easement to the holder of the servient tenement. So there is no error.

The problem is that a person who does not know the law of land titles, such as the person who sued apparently and their attorney, may not know that the deed that merged title also extinguished the easement. Unfortunately, unless you want to sue the current owner of the former dominant tenement in an action to quite title, or they will voluntarily give you a confirming quitclaim deed, there is nothing you can do to make it clearer to the uneducated reviewer of the public records that the easement no longer exists.

I agree that there is no error in the public record, and there is no easement -- UNLESS a prescriptive easement has been created since re-separation of ownership of the parcels.