Freeman v. Sorchych (CA1 1/13/11)

This opinion holds that those who share an easement share the obligation to maintain it.

Sorchych and the Freemans own adjoining properties. A single road, built when the properties were jointly owned, is the access to both. They have an easement for the road, granted to the earlier joint owner by the owner of the land over which it runs.  Various arguments about the road culminated in a bench trial on the Freemans’ claim against Sorchych for half the cost of maintaining it. Sorchych won, the court concluding that no precedent supported a contribution claim and that the Freemans’ claim of unjust enrichment failed because the maintenance was done for their benefit as well.

On appeal the Freemans’ claim becomes that Sorchych must pay for maintenance “in an amount proportionate to his use.” The court does not comment on this change of position.

On the issue of contribution the Court of Appeals reverses. It concludes that the Freemans have a claim for equitable contribution because that is what the Restatement says: “The holders of separate easements . . . who use the same improvements or portion of the servient estate . . . have a duty to each other to contribute to the reasonable costs of repair and maintenance . . .” (First, though, the opinion explains at length that as between the grantor and owner of the easement the maintenance duty is on the owner. If that was at issue in this case the opinion does not explain why.)

The court next tells us, citing and discussing a number of cases, that this conclusion is consistent with the common law of other states. There was a time when to say that and to cite the Restatement were considered essentially the same thing. That’s why we have a tradition of following the Restatement. It is either the triumph or tragedy of the ALI, depending on your point of view, that the Restatement is no longer seen as restating anything other than some law professors’ opinions.

But contribution is not 50/50. It “an equitable apportionment” depending on “various relevant factors” including but not limited to proportionate use, the reasonableness and adequacy of the maintenance performed, and whether each party received notice and an opportunity to participate in the maintenance decision. (The court’s earlier discussion had implied that notice and opportunity would be elements of the cause of action but it now specifically lists them as mere “factors.”)

On the issue of unjust enrichment the court upholds the trial result. Since the Freemans, by their own testimony, spent no more money any more often than they would have to maintain the easement for themselves, they could show no detriment.

There was also an attorney’s fee issue (Sorchych had been awarded some), which the court takes a page to explain before saying that it won’t address it, instead simply vacating the award.

The court awards the Freemans their costs on appeal, otherwise denies costs and fees to both parties, and remands. (Remand will apparently revolve largely around Sorchych’s claim that the Freeman’s didn’t simply maintain the road but greatly improved it for reasons of their own.)

Whoever wrote this will surely get the employee-of-the-month award. It is a prototypical example of the Division One style: far too long, chock-full of facts and procedural details that have nothing to do with the holding, with seventeen mostly-quite-long and mostly-quite-extraneous footnotes.

(link to opinion)