Considered Opinions

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

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.

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.

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 14, 2023 Addendum
prior to construction

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 exact location of the connections. 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.

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 of necessity follow the path specified in the original document. In the weeks that remain before construction begins, there remain at least two alternatives, should this owner wish to pursue them.

1. I own three of the approximately 12 properties affected by the easement and 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 electrical 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 original one in place, but precluding my use of it.

Cost Recovery
ongoing

Either of the above alternatives requires my cooperation and the price of that cooperation continues to increase with each objection that incurs my time and expense. The table shows the running total of that to be recovered.

Date	Provider	Jefferies	Daugherty	Note
3/31/17	Hamerslough	. . $731.50		Legal re: Castor Easement
April 2020	Principal	. $2,000.00		Document Preparation - Jefferies meeting
4/18/20	Sullivan	. $2,187.50		On site conference
4/5/22	Principal	-	. . $750.00	Dougherty meeting
1/13/23	Principal	-	.$1,200.00	Document Preparation -Dougherty meeting
1/17/23	Sullivan	-	. . $175.00	Dougherty Phone Call
1/31/23	Matteoni	-	. . $935.00	Legal re: Castor Easement
1/31/23	Principal	-	. . $750.00	Document Preparation -Matteoni meeting
3/5/23	Principal	-	. $1,125.00	Document Preparation -Easement
3/11/23	Christopher Tack	-	. . . $70.00	Notary
3/13/23	Santa Clara County	-	. . $xxx.00	Recording Fees
pending		-
pending		-
pending		-
28	Total	. $4,919.00	. $5,xxx.00

By: Jim
Written: 2016-2020
Published: March 30, 2022
Revised: April 5, 2022
Revised: January 13, 2023
Revised: March 14, 2023
Revised:
Revised:
Revised: Ongoing 

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