Listen to this post

On December 11, 2012, the Third District Court of Appeal changed its decision in Wooster v. Department of Fish and Game (Nov. 26, 2012) 2012 Cal. App. LEXIS 1250 from unpublished to published.  In this decision, the court was asked to determine whether Kelly C. Wooster’s property in Calaveras County should be deemed to be free and clear of a conservation easement recorded on the property over 30 years ago that banned hunting.  The court rejected each of Wooster’s arguments.

The conservation easement included a condition requiring CDFG to post no hunting and no trespassing signs on the property.  Wooster argued that CDFG’s failure to comply with the posting condition resulted in CDFG’s forfeiture of the easement.  The court explained that while conditions subsequent contained in an easement can result in forfeiture, mere conditions do not have the same effect.  Here, the court found that for the posting requirement to be reasonably construed as a condition subsequent rather than simply a covenant, there would have to be something more than the inclusion of that requirement in a list of “conditions.”  Wooster failed to present any additional evidence to support his position.  Therefore, the court concluded CDFG did not forfeit the conservation easement by failing to comply with the posting condition.

Next, Wooster argued that he was authorized to rescind the conservation easement due to CDFG’s failure to comply with the posting condition.  The court again disagreed.  The court stated that to hold that a vendor of real property could, for a failure to pay the purchase money or other consideration, repudiate his deed and recover the land, would render real estate titles dangerously uncertain.  For this reason, “the law is that ‘a deed without fraud in its inception … is not void for any failure of consideration,’ period.”

Finally, Wooster argued that the conservation easement could not as a matter of law ban hunting on his property.  First, Wooster argued that the Fish and Game Code provides exclusive rules concerning the taking of game and, therefore, CDFG did not have the jurisdiction to authorize a permanent ban on hunting through a deed or contract.  The court dismissed the argument explaining that “in no way does the Fish and Game Code establish a public policy that forbids the department from accepting a conservation easement for the purpose of creating an area, comparable to a game refuge, in which no hunting is allowed.”

Second, Wooster argued that the Wildlife Conservation Law required that CDFG promote recreation and a permanent ban on hunting was inconsistent with this requirement. However, the court explained that what “Wooster’s argument ignores is the self-evident fact that creating pockets of land in which wildlife can be safe from hunting actually does serve to increase the recreational use of wildlife, including as objects of the sport of hunting.”

Third, Wooster argued that provisions of the Civil Code authorize a property owner to make animals on their land their property by taming or hunting them.  The court found Wooster’s argument meritless explaining that an agreed-upon ban on hunting does not extinguish, destroy, or perpetually abate anyone’s right of ownership.  While Wooster is prohibited from hunting animals pursuant to the conservation easement nothing prohibited him from owning animals on his land.

Fourth, Wooster argued that the statutory scheme authorizing conservation easements did not authorize an easement to ban hunting.  The court again disagreed, stating that “using a conservation easement to ban hunting most certainly does help retain land in [an] unspoiled condition.”

Key Points:

Conservation easements are binding negative easements governed by their specific terms.  Unless expressly limited in duration, a property owner is bound by its lawful terms in perpetuity.

Written By: Tina Thomas and Christopher Butcher
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Leave a Reply

Your email address will not be published. Required fields are marked *