This article is the second in a series of in-depth stories related to the controversy surrounding the settlement of Quiet-Title litigation between the County of San Bernardino Flood Control District, County of San Bernardino, and Colonies Partners, L.P.

In this segment we look at the onset of the controversial dispute.

The definition of a “Inverse Condemnation” legal action is as follows.

n. the taking of property by a government agency which so greatly damages the use of a parcel of real property that it is the equivalent of condemnation of the entire property. Thus the owner claims he/she is entitled to payment for the loss of the property (in whole or in part) under the constitutional right to compensation for condemnation of property under the government’s eminent domain right. Example: the city of Los Angeles widens a boulevard and thereby takes the entire parking lot of Bennison’s Busy Bee Market. The city offers to pay for the lot, but Bennison claims the market has lost all its business since no one can park and wants the value of the entire parcel, including the market building.

The definition of a “Quiet Title” legal action is as follows.

n. a lawsuit to establish a party’s title to real property against anyone and everyone, and thus “quiet” any challenges or claims to the title. Such a suit usually arises when there is some question about clear title, there exists some recorded problem (such as an old lease or failure to clear title after payment of a mortgage), an error in description which casts doubt on the amount of property owned, or an easement used for years without a recorded description. An action for quiet title requires description of the property to be “quieted,” naming as defendants anyone who might have an interest (including descendants—known or unknown—of prior owners), and the factual and legal basis for the claim of title. Notice must be given to all potentially interested parties, including known and unknown, by publication. If the court is convinced title is in the plaintiff (the plaintiff owns the title), a quiet title judgment will be granted which can be recorded and thus provide legal “good title.” Quiet title actions are a common example of “friendly” lawsuits in which often there is no opposition.

The definition of an “Easement” is as follows.

n. the right to use the real property of another for a specific purpose. The easement is itself a real property interest, but legal title to the underlying land is retained by the original owner for all other purposes. Typical easements are for access to another property (often redundantly stated “access and egress,” since entry and exit are over the same path), for utility or sewer lines both under and above ground, use of spring water, entry to make repairs on a fence or slide area, drive cattle across and other uses. Easements can be created by a deed to be recorded just like any real property interest, by continuous and open use by the non-owner against the rights of the property owner for a statutory number of years, typically five (“prescriptive easement”), or to do equity (fairness), including giving access to a “land-locked” piece of property (sometimes called an “easement of necessity”). Easements may be specifically described by boundaries (“24 feet wide along the northern line for a distance of 180 feet”), somewhat indefinite (“along the trail to the northern boundary”) or just for a purpose (“to provide access to the Jones property” or “access to the spring”) sometimes called a “floating easement.” There is also a “negative easement” such as a prohibition against building a structure which blocks a view. Title reports and title abstracts will usually describe all existing easements upon a parcel of real property. Issues of maintenance, joint use, locking gates, damage to easement and other conflicts clog the judicial system, mostly due to misunderstandings at the time of creation.

The Colonies Partners L.P. litigation resulted from the County of San Bernardino Flood Control District (“District”) primarily violating a real property Easement granted January 21, 1939 to the San Antonio Water Company, the original owner and applicable to the Colonies Crossroads development site.

The District forced the City of Upland to include flood control improvements as a condition of approval to the development plans. The District insisted and the city complied.

The District further demanded the Colonies Partners construct and maintain the flood control improvements, a responsibility of the District, not a private developer.

The District filed suit through an inverse condemnation action against Colonies over the matter.

In other words the District was asserting rights to Colonies property that did not possess.

The Colonies Partners filed a cross-complaint under what is known as a “Quite Title” action as defined above.

Several Easements would be examined. Those Easements being established in “1933″, “1934″, “1938″, “1939″, 1962″ and “1963″.

The “1939″ Easement would play a prominent part in the litigation because of three specific and binding conditions the District chose to ignore.

The conditions summarized are essentially as follows.

1. The Colonies Partners have the right to access the easement.

2. The District must construct and pay for the construction of any flood control structures, embankments and ditches.

3. The District must maintain the flood control structure at its own expense.

4. The Colonies Partners may object in writing to any construction plans.

District management ignored the obligations contained in the easement documents and attempted to unilaterally expand the easements and infringed on the rights of the land owner, who ultimately was forced to construct and pay for flood control structures and improvements mandated by the District in order to eventually proceed with the development project. Land of 67 acres available for the construction of 300 lots valued by 2006 appraisal at $85 million was eliminated for the expanded flood control structures. Second phase development was delayed three years. Land owner legal and flood control structure structure construction costs exceeded $28 million alone.