Castor Easement
history summary from the [i]A more detailed record can be seen here.1950s & 1960s

This half-century-old Easement has been in use, providing access to several properties, since its origination. Recently, I have endeavored to expand its use as an alternative access route for all affected property owners, and for access to a Public Utility (San Jose Water Company). The following summarizes that effort and these links provide quick access to parts of particular interest.

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Construction

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Before Claud Castor passed away, he had subdivided most of his 20-plus acre holdings into individual lots, varying in size from less than an acre to more than three acres. One went to his son (Thored), another to his daughter (Thelma), and I eventually acquired five of them. As of this writing, I still own three (APNs 558-08-119 & 095 & 096). An  EASEMENT DEED was created by Castor in 1958[ii]… made available here through Old Republic Title, and for free downloading, which is appurtenant to at least ten of the former Castor properties. This 1960 ROS shows the 1958 Easement Deed identified as “Land of Claud G Castor”, and this 1965 ROS shows it as appurtenant to 558-08-095/6, “Land of Snapp”. In both cases, these Records Of Survey show it having been drafted correctly from the Easement Deed.

Flawed Assessor Records

Original Easement Deed

Even though they both seem to have been surveyed correctly and recorded at the time, when the text of those original documents found its way into some of the property titles, there were transcription errors, causing them to be mathematically flawed. The clip on the left shows it correctly, and the one on the right is flawed. This 2019 survey shows it plotted correctly. The only significant effect of the errors is in the interest of the owner of APN 558-08-29 and, to a lesser degree, those owners to the north of that point.

This easement is “deeded”, as opposed to being subject to any claim of “prescription” or “adverse possession”. It is a “non-exclusive” easement, meaning that it “runs with the land” – being passed by sale or inheritance to successive property owners. It specifies that current owners whose property is adjacent to this easement are “appurtenant” to it, meaning they all enjoy the same rights. And finally, it stipulates that it is to be used for, “ingress and egress”, and for the “installation and maintenance of public utilities”. “Ingress and egress” of course meaning that all parties made appurtenant to the Deed are entitled to walk or drive across it at will.

It is not possible to know exactly how the easement will be used in the future. Possibilities include but are not limited to the following.

  1. Two 20-gallon/minute domestic water connections to the Montevina pipeline have been approved by San Jose Water Company, which would use it.
  2. PG&E will eventually probably be required to put the secondary connection currently serving 558-08-095 & 096 underground, employing that easement.
  3. Central Fire District has expressed interest in acquiring the assignment of rights to it as an emergency escape route. [iii]There have been occasions when I have used that path to get to Los Gatos after heavy snow events blocked the road and fire is an ever-present danger in this area.
  4. Future sewer connections will likely use it, perhaps even natural gas.
  5. It will eventually be useful for solar and wind power mesh connections.
  6. The increasing proliferation of ADUs in this area will likely add “ingress and egress” to the list of common uses.

 

In the meantime, knowing that every easement has value, for the past 50 years, I have continued to make it clear that it is not being abandoned. At least once per year, I routinely drive across it during the light of day, so everyone can observe. At times I have mowed or sprayed the weeds there, but I have not done that in recent years, nor do I see a need to do that unless a fire hazard develops.

There is currently no intention of abandoning this easement or altering it in any way, with the possible exception of the path revision shown below. It would be possible to make the necessary corrections and avoid future conflicts, while at the same time, rerouting the path to make it less invasive to one of the property owners. One such path revision candidate, which I proposed some years ago, is shown here. My continued cooperation and assistance are available, even though the benefit accrues almost exclusively to the owner of APN 558-08-029.

April 5, 2022 Addendum
response to objections by 558-08-029 owner
  1. The wording, “for ingress and egress, and for the installation and maintenance of public utilities”, appears in thousands of easements in courthouses around the Country. There is no uncertainty that every judge in the land knows precisely what that means.
  2. The “AND” in, “ingress and egress” AND “for the installation …” means exactly what it says; otherwise, it would say “FOR” or “TO ENABLE” or some such wording, which is often found in other agreements of this nature.
  3. The word “ACROSS” in this context means “on top of”, “above”, “in connection with”, and “underneath”, as in “buried” or “underground”.
  4. The prescribed path is navigable by virtue of the dozens of excursions by me and others across it over the decades with ordinary street-vehicles.
  5. The question as to whether public utilities were put underground when this easement was written, and therefore inferred here, we need only recall that the Romans put their lead pipes underground to keep citizens from illegally tapping into them and to keep rodents from falling into open aquifers.
  6. The Ryan Water Company maintained buried water lines for many years, using this easement and others. There are mentions of this on this history page, and more recent photos can be seen here.

 

May – December 2022 Addendum
relocation of San Jose Water connections

The two water connections to the Montevina pipeline mentioned above are approved by San Jose Water Company to serve parcels 558-08-119 and 558-08-130, using an easement across 558-08-111/112. The terrain at that location is very steep and further obstructed by a retaining wall, erected by Santa Clara County in the 1980s. Construction of the required pipelines at that location would therefore be very difficult and expensive, aggravating an already unstable slide area. A formal request has been submitted to San Jose Water in to have those moved to another location, to resolve that difficulty. Progress on that request has been delayed by several months as a result of objections on the part of one of the affected landowners (Sean Doherty; 558-08-029).

January 13, 2023 Addendum
subject revisited[iv]I confirmed on January 17 that the owner had called my attorney to agitate and misrepresent my standing offer to cooperate on moving the easement.

click to enlarge

The graphic on the left reflects the most recent correspondence initiated by the owner of 558-08-029, regarding this easement. My response is being made public here for the benefit of all affected owners.

The subject easement, available here as EASEMENT DEED, is a matter of public record and dates back over 60 years. I have made continuous use of it for much of that time, and I fully intend to continue doing so, including for all its intended purposes. Its wording is precise, thorough, and unambiguous, making its purpose and scope unquestionable – to provide for “ingress”, “egress”, and “utilities” to all those properties subject to it. Furthermore, It is non-exclusive, giving it significant value to all affected property owners, including their heirs, my heirs, and me. That value far outweighs any cost I might incur to protect its integrity.

I have made it clear that I am willing to agree to reroute it to make it more convenient for the owners of 558-08-029, and that offer extends to any of the affected property owners. I will not, however, consider altering it in any way that might affect its future value.

March 22, 2023 Addendum
SJWC final approval

The finalized San Jose Water Company documents have been approved and recorded, including two covenants addressing details of pressure, backflow requirements, electrical connections, and the revised locations. Also included in the documentation is one additional Utilities Easement appurtenant to one of the affected properties to address any potential issue arising from the scope of the Santa Clara County Roads and Airports, encroachment permit.

April 11, 2023 Addendum
connection locations final approval

SJWC has documented the location of the two valves and meters, near the edge of the County ROW at the corner of the pumping station, where their service ends. They also have submitted the encroachment permit application, which takes 30-45 days for approval. The preliminary design layout shows a covered pad behind the pumping station to house the two pumps and backflow devices. The final engineering report, to be completed in the next 30-60 days, calls for two water lines, an auxiliary power conduit, and a signal-level communication conduit, all in a single 30″ deep trench.

In the absence of any meaningful response to my repeated offers to reroute the subject easement to make it less intrusive to the owners of 558-08-029, the installation will follow the path specified in the original document. In the weeks before construction begins, at least two alternatives remain, should this owner wish to pursue them.

  1. I own three of the approximately 12 properties affected by the easement and I remain willing to cooperate in any way possible. It is likely that the other owners would also not object to any sort of revision in its location.
    One difficulty of course, is that abandoning a deeded easement is not a simple matter, and in this case, PG&E is already using a portion of the easement for overhead primary distribution, and their cooperation is less certain.
  2. A simpler alternative would be to create a new easement with me as the dominant tenant while leaving the other in place but precluding my use of the original.

May 12, 2023 Addendum
County Encroachment Permet Approved
SJWC connections scheduled

The one remaining approval was received yesterday from the County. Since the pumps and backflow devices are not required prior to SJWC installing their connections, those connections have been scheduled to be completed by mid-June. The easement will be staked out prior to that time so construction can begin soon after. Any changes to the easement obviously must be completed by that time.

July 2023 Addendum
Webb Easement Cleared
Meters & Valves Installed

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230801
August 1, 2023 Addendum
Easement Location Revision
  • Replacing the “181.01 ft” call, and the “80.56 ft” call, in the Castor Easement with a new “162.57 ft” call;
    • Minimizes the potential intrusion of the easement upon APN 558-08-029
    • Reduces the impact on Ingress and Egress for the other affected property owners
  • The angle of the 31-4-50 (360 ft) call & the 53-18-10 (80.56 ft) call is currently 84-24 degrees.
  • The revised angle becomes approximately zero.
  • Variations on the theme of this revision, which avoid acute angles are possible.

August 26, 2023 Addendum
Termination of Relocation Effort

Several years ago, I offered my cooperation should the then-current property owner want to move the easement to a place that would be less intrusive to him and his family. I have continued to renew that offer since then, despite his profound lack of cooperation, and the obstanance of the subsequent new owners.

We will soon be putting multiple water, power, and Comcast lines there in multiple trenches and several large Christy-Box access points, some being above grade, and all requiring routine vehicle access for maintenance. In addition, the Central Fire District has expressed interest in using it as an emergency escape route, and PG&E will likely eventually put underground services there. Yet sadly, the current owners remain recalcitrant in spite of the fact that their front yard could eventually become their neighbors’ driveway.

My efforts have consumed many hours of my time and thousands of dollars, solely to stand behind an exceedingly generous offer, which I had no obligation to put forth in the first place. Reluctantly, it is time to abandon that effort.

April 14, 2024 Addendum
Construction (Webb / Beck Joint Effort)

~Phase I of the construction is underway. The Webbs have decided to abandon the prior agreement to share the trench. Therefore, Building Department inspection, backfilling, installation of pumps and tanks, plus plumbing and electrical connections for those two services will be completed under their own contracts.

 

May 14, 2024 Addendum
Construction (Beck Portion Only)

This account only follows the two Beck property connections, leaving the remaining cooperation items and cost sharing as follows.

  1. Trenching from meters to east side of driveway.
  2. 8′ x 18′ concrete pad at meters
  3. 10′ x 10′ concrete pad at the Webb house

The trench from the driveway to the lower pad is backfilled, and grading is finished with wood chips on-site to finish landscaping. Grading for both concrete pads is finished. Forms are set, steel will be tied in both forms and concrete for both will be mixed on-site to minimize cost and poured during the week of May 13.

DateProviderCostBeck
%
Beck
$$$
Webb
%
Webb
$$$
Description
4/xx/24Gilbert9,000.0015.5%1,395.0084.5%7,605.00Trenching - Webb 84.5%, Beck 15.5%
4/xx/24Gilbert178.7250.0%89.3650.0%89.36Pipe Chase
4/13/24Home Depot1,111.030.0%0.00100.0%1,111.03Pressure & Elec PVC
4/13/24Home Depot89.000.0%0.00100.0%89.00Home Depot Delivery
0.000.000.00
0.000.000.00
Total10,378.751,484.368,894.39

 

~Phase II   Responding to Daugherty’s threats of litigation, we have engaged a third attorney at considerable expense[v]… confirming the positions of Hamerslough and Matteoni because we cannot afford to be delayed by frivolous legal action to respond to those threats when required.

In the meantime, the bid selection process for the Beck portion of the project is nearing completion. Preliminary engineering details can be seen at Page 1, and Page 2. Construction for this phase of the project is expected to commence in mid June.

Any requests for relocation of the easement must be received by the end of May in order to be acted upon. Documentation regarding the location of underground infrastructure (septic, water, electrical, etc.) also need to be received soon to avoid considerable inconvenience to property owners. The existing easement will be cleared of weeds and other obstructions in May to allow construction to start and continue over a span of several weeks, as follows. 

Spillway

Trenching along the east side of the spillway to the upper end of the first existing culvert will be hand-dug along the east side of that plastic culvert. Water and electrical pipes will be installed, and the trench will be backfilled incrementally in convenient pipe lengths.

Between the first and second culvert, the next section will be dug with a backhoe, making that section of the driveway impassable for several hours. Backfilling will be done with class-2 base rock and covered with broken concrete rubble resembling the existing.

The remaining section of the spillway, proceeding past the “lower gate” to the end of the second culvert, will involve the removal of considerable amounts of soil but well under the 150 cubic yards and 5-foot vertical depth limits requiring a grading permit. Unless we can ascertain the exact location of the electrical wiring, it will likely be damaged by the trencher, causing the gate to be out of service for the time required to make repairs.

Lower Gate

The gate, which is aligned within a few inches of the western edge of the Easement, is 12 feet in length, with 19-inch bollards on either end, bringing the effective length to just over 15 feet. As has been agreed in the past, we have no objection to that gate remaining locked as long as it can be opened quickly and easily by all other affected property owners. In the absence of such an agreement[vi]The agreement will be recorded at the County Recorder’s Office to account for the lack of follow-through on the prior verbal agreement., it will be necessary to remove the gate entirely.

One alternative to pursuing a court order to have the gate removed would be to widen the access on the east end of the existing gate to allow the installation of a man-gate similar to that shown in Figure E1, in addition to ready access to the main gate. The cost of such a gate, including excavation, installation, and retaining wall, would be entirely borne by the property owner, in addition to the Daugherty portion of the ongoing Costs Recovery accumulated (see table below).

Northwest Corner / Upper Gate

Proceeding past the lower gate to the 94M55 Easement “waypoint” trenching will be done with either a 12″ backhoe bucket or a walk-behind chain trencher. To the extent that the location of plumbing, wiring, and septic installations can be established in advance, considerable downtime for workers and inconvenience for property owners can be avoided.

The existing pavement will be cut and replaced in two locations in order to stay within the boundaries of the Easement.

Trenching from the northwest corner to the “upper gate” will also be done with a backhoe or chain trencher. In the past, references have been made to the existence of a “French Drain”, in that area. If that reference was to a true French Drain for groundwater, it will be easy to repair if damaged. If, however, the reference was to the leach field of a septic system, the new water lines are required to be a minimum of 12 inches above sewer connections or displaced laterally by a minimum of 10 feet. Establishing the location of such obstructions in advance will avoid considerable difficulty for both workers and property owners.

In the past, property owners have rejected options to reroute the Easement to minimize its effect on them (see  Figure E1). Changes such as these can be considered as time allows before construction begins.

 

May 22, 2024 Addendum
Construction (Beck Portion Only)

The concrete pad at the pump station is finished as of this date.

This rather crude sketch from the property owner, with an overlay of the easement in white added by me, is included here to help contractors avoid hitting underground services. 

It is still unclear what the property owner’s definition of “Grey Water” means in this situation. If it means “Leach Field” from a septic system or unpermitted bypassing of a septic system, that could lead to major County DEH issues. If the contractor hits it, he will be required to report it, and County inspectors will be on the site repeatedly during the construction.

 

 

May 31, 2024 Addendum
Construction – continued
  1. The project underway uses the subject easement (Easement) in precisely the way it was intended – for the “installation and maintenance of public utilities”. Furthermore, as of this date, to avoid any further misunderstandings, “ingress and egress” is being added to that plan.
  2. The project can be accomplished through polite and constructive dialogue with the 558-08-029 owners or with lawyer bills, restraining orders, and other such legal maneuvers, but the end result will be the same.
  3. No property owner appurtenant to the Easement has the right to obstruct it in any way, and every property owner has the right to use it for its expressed purposes.
  4. Owners of 558-08-029 should reasonably be expected to have concerns about the financial and privacy implications of the possibility that neighbors might eventually have a 20-foot-wide asphalt driveway across their front yard. I have, therefore, repeatedly pledged my cooperation to help them relocate it to be less intrusive to their interests. The two options of record are still available as late as a few days before trenching commences. The potential cost savings of either are negligible, at no more than a few hundred dollars in a multi-thousand-dollar project.
  5. The Upper gate (south end of 558-08-029) was purchased by me from L.A. Hearne of Salinas and installed at my expense shortly after having the Easement surveyed in 2016. A careful plot of the entire 1958 Easement, done at that time, combined with the survey of 2016, shows the existing fence, which had been replaced by Ron Whistler – then owner – in the mid-1980s, to be slightly angled from the 440-foot southern property line of 558-08-029. The error can be seen easily at the eastern end of the property line. I, therefore, installed the gate directly in line with the fence, several inches south of the line, onto parcel 558-08-122, and squarely within the Easement. I could, of course, remove the gate to avoid it being considered an obstruction of the Easement, but as long as it remains in place, it must be quickly and easily opened by any and all affected property owners. During the next several weeks, it will often be left open for workers, perhaps for days at a time. Further tampering with that gate will result in its removal entirely.
  6. The lower gate (north end of 558-08-029) must be quickly and easily opened by the other affected property owners for it to remain in place. Otherwise, the contractors will be forced to remove it.

 

June 20, 2024 Addendum
Recent Survey(s)

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The western most corner

The "Field" Waypoint

The "Field" Waypoint

The marker at the center of the upper gate is currently buried under several inches of dirt. Its appromatte location can be determined from the survey monument in the asphalt on the other side of the gate..

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Three points on the north end .

 

 

Locked gate with Fire Department access.

 

 

 

 

~Phase III of the project, which extends from the “upper gate” to the corner to 558-08-119, will be undertaken at a later date or possibly included in Phase II.

Iron Pipe Clearly Visible

Cost Recovery
ongoing

Should it become necessary to resurrect the relocation effort in the future, this table will continue to collect expenses related to that effort, to be recovered from whoever shall seek to alter the easement.

DateProviderJefferiesDaughertyNote
3/31/17Hamerslough. $731.50Legal re: Castor Easement
4/20Principal$2,000.00Document Preparation - Jefferies meeting
4/18/20Sullivan$2,187.50On site conference
4/5/22Principal -. $750.00Dougherty meeting
1/13/23Principal -$1,200.00Document Preparation -Dougherty meeting
1/17/23Sullivan -. $175.00Dougherty Phone Call
1/31/23Matteoni -. $935.00Legal re: Castor Easement
1/31/23Principal -. $750.00Document Preparation -Matteoni meeting
3/5/23Principal - $1,125.00Document Preparation -Easement
3/11/23Christopher Tack -. . $70.00Notary
3/13/23Santa Clara County -. $158.00Recording Fees
3/16/23Sullivan -. . $00.00Sullivan to ignor property owner communication
5/31/24Lundell -$2.167.50Preparing for Daugherty litigation
28Total. $4,919.00$7,330.50
By: Jim
Written: 2016-2020
Published: March 30, 2022
Revised: April 5, 2022
Revised: January 13, 2023
Revised: March 14, 2023
Revised: April 11, 2023
Revised: August 1, 2023
Revised: May 14, 2024
Revised: May 22, 2024
Revised: May 31, 2024
Revised: June 10, 2024
Revised:
Revised:
Revised:
Revised: Ongoing 
Reader feedback always appreciated
footnotes
footnotes
i A more detailed record can be seen here.
ii … made available here through Old Republic Title, and for free downloading
iii There have been occasions when I have used that path to get to Los Gatos after heavy snow events blocked the road and fire is an ever-present danger in this area.
iv I confirmed on January 17 that the owner had called my attorney to agitate and misrepresent my standing offer to cooperate on moving the easement.
v … confirming the positions of Hamerslough and Matteoni because we cannot afford to be delayed by frivolous legal action
vi The agreement will be recorded at the County Recorder’s Office to account for the lack of follow-through on the prior verbal agreement.