Legal Question in Real Estate Law in California

What's wrong with his existing sewer line? The court isn't going to grant him an easement by necessity just because "he wants" to run it through your property. The court would only grant an easement if there was no other way to tie into the main sewer line.

Without looking at quite a few factors, it's hard to predict the outcome of such a suit, if it is filed, but let me make a few sort of general comments:

1. Courts cannot manufacture easements for plaintiffs out of thin air. The most the court can do is to find some reason, or some legal fiction, to rule that an easement exists.

2. The court's powers include finding an "easement by necessity" which usually means "the owner who subdivided this property failed to provide an express easement to reach Parcel 13, and since he surely didn't intend to create a landlocked parcel, he must have forgotten to include it in his subdivision filing." It is an easement implied in law, and requires (a) no other feasible access, and (b) prior common ownership of the dominant tenement (the parcel to be benefitted by the easement) and the servient tenement(s) (the parcels to be burdened with the easement).

3. Easements by necessity are usually for ingress and egress, but there is at least one older California case in which the Court of Appeal held that an easement by necessity could be found to exist for purposes of making a sewer line connection. See Frederick v. Louis (1935) 10 Cal.App.2d 649.

4. An easement by necessity will not be found to exist, nor granted, merely because the easement would make construction easier. Strict necessity must be found - i.e., the easement is the only practical means of accomplishing the result.

5. You might be better off to grant the desired easement for a price that will make it worth while. Defending the suit will cost you money and you probably won't recover it even if you prevail.

Mr. Roach is correct that an ingress/egress easment does not provide any right to run a sewer. He is wrong, however, that you could be forced to allow an easement if there is no other way to tie into the sewer main. There is an automatic right to legal ingress and egress that goes with ownership of property. But there is NO right of physical ingress and egress, much less a right for egress of your sewage. This is one of the reasons that title insurance companies have staff litigators. They insure the right of legal access, and then someone finds out that the entire frontage of their property on the public road is a cliff, and the driveway across the neighbor's property was a license, not an easment. They sue the neighbor for an easement by necessity and the title insurance company for insuring access they don't have. Because there is legal access both claims fail. For the same reason that the impracticality of access does not give a right to an easement by necessity, your neighbor's inability to build on a parcel due to lack of access to a sewer line does not give rise to a right to force a sewer easement on you.

Mr. McCormick and your neighbor both have the same problem. They are both full of crap.

Your neighbor can gain an easement for his sewer line if he proves it is a necessity. Civil Code section 1001 specifically provides a private party with the power of eminent domain to obtain appurtenant easements for utilities.

"(a) As used in this section, 'utility service' means water, gas, electric, drainage, sewer, or telephone service.

(b) Any owner of real property may acquire by eminent domain an appurtenant easement to provide utility service to the owner's property.

(c) In lieu of the requirements of Section 1240.030 of the Code of Civil Procedure, the power of eminent domain may be exercised to acquire an appurtenant easement under this section only if all of the following are established:

(1) There is a great necessity for the taking.

(2) The location of the easement affords the most reasonable service to the property to which it is appurtenant, consistent with the least damage to the burdened property.

(3) The hardship to the owner of the appurtenant property, if the taking is not permitted, clearly outweighs any hardship to the owner of the burdened property."

(Civ. Code, sect. 1001.)

My original response still stands. Your neighbor is not going to be able to get an easement for the sewer unless he proves necessity, or some other facts that you have not provided would give him an easement by implication.