CITY CONTROL OVER PRIVATE EASEMENTS

[mpallamary]

Hi,

I would like to impose upon my able countrymen and women for some assistance. I am involved in a situation where my client is the dominant tenement for a 70-year old private road easement that is for the most part improved. We need to improve a small stretch of the roadway and because the servient tenement did some grading, we have to install a low (three-foot high) retaining wall entirely within the easement. Because the ground has been altered, we canot pave the existing road easement along a level path.

The unnamed city has asked that we get permission from the servient tenement (the burdened property owner) as a condition of allowing my client to improve his driveway. Needless to say, the neighbor will of course say no.

Has anyone ever come across this? It is my position that the rights were conveyed 70 years ago and why should my client seek the consent of the servient tenement which is already burdened and has been for 70 years.

Thoughts? Case law anyone?

[Lehmann]

"it is my position that rights were conveyed 70 years ago" Are we talking about a deeded easement, or a prescriptive easement. If deeded as you well know, serviant tenements (ST) can't use the property adverse to the dominant tenement (DT). However I have worked on cases where a 60' right of way was granted, thereafter only 20' was historically used and the judge ruled that "the DT had the opportunity to use 60', chose to use only 20' and therefore is limited to the 20' he selected to use. This opened up the other 40' back to the ST for unrestricted use. My concern is that it sounds like the ST negatively impacted the DT, this should have been quashed as soon as it was notice. Obviously the DT should hold the cards. If prescriptive, I can see why the fight.

[mpallamary]

Thanks both. It is a granted easement. There is case law that allows other ancillary improvements to be installed as long as they are consistent with the use as an access easement.
I will see what else surfaces.

[mpallamary]

Any thoughts on this?

SECTION 845
CALIFORNIA CIVIL CODE

(a) The owner of any easement in the nature of a private right-of-way, or of any land to which any such easement is attached, shall maintain it in repair.

(b) If the easement is owned by more than one person, or is attached to parcels of land under different ownership, the cost of maintaining it in repair shall be shared by each owner of the easement or the owners of the parcels of land, as the case may be, pursuant to the terms of any agreement entered into by the parties for that purpose. If any owner who is a party to the agreement refuses to perform or fails after demand in writing to pay the owner's proportion of the cost, an action for specific performance or contribution may be brought against that owner in a court of competent jurisdiction by the other owners, either jointly or severally.

(c) In the absence of an agreement, the cost shall be shared proportionately to the use made of the easement by each owner.

Any owner of the easement, or any owner of land to which the easement is attached, may apply to any court where the right-of-way is located and that has jurisdiction over the amount in controversy for the appointment of an impartial arbitrator to apportion the cost. The application may be made before, during, or after performance of the maintenance work. If the arbitration award is not accepted by all of the owners, the court may enter a judgment determining the proportionate liability of each owner. The judgment may be enforced as a money judgment by any party against any other party to the action.

(d) In the event that snow removal is not required under subdivision (a) or under any independent contractual or statutory duty, an agreement entered into pursuant to subdivision (b) to maintain the easement in repair shall be construed to include snow removal within the maintenance obligations of the agreement if all of the following exist:

(1) Snow removal is not expressly precluded by the terms of the agreement.

(2) Snow removal is necessary to provide access to the properties served by the easement.

(3) Snow removal is approved in advance by the property owners or their elected representatives in the same manner as provided by the agreement for repairs to the easement.
(e) The provisions of this section do not apply to rights-of-way held or used by railroad common carriers subject to the jurisdiction of the Public Utilities Commission.

[subman]

Michael,

The following easment cases may be useful. They deal with incompatible acts, material increase in use, or surcharge by an easement owner which may forfiet his/her rights. These were discussed in a "Law of Easements" seminar I attended in 2007. Hope they are on point for your particular circumstances:

Buechner v. Jonas, 228 Cal. App. 2d 127 (1964)
McCarty v. Walton, 212 Cal. App. 2d 39, 45-46 (1963)
Crimmins v. Gould, 149 Cal. App. 2d 383, 390 (1957)
Fletcher v. Stapleton, 123 Cal. App. 133, 137 (1932)

[Paul Goebel]

What did the deed say that created the easement? Were specific uses mentioned?

[mpallamary]

Thanks all once again. You friends remain fountains of information. it says: An easement and Right of Way. It is 80% improved already with minor walls and retaining components.

[E_Page]

"It is 80% improved already with minor walls and retaining components."

That sounds like the precedent for that type of maintenance has already been set.

[mpallamary]

Yes and I agree. Thanks!

[dmi]

I wonder what propmpted the grading. Was it to repair and maintain the road?
If the grading was for some other purpose, not connected to the road, then it would appear that the property owner has interefered with the quite enjoyment of the easement by the easement holder. This should not be allowed. The owner of the property has no right to interfere with the easement holders use of the easement. This is well established in case law.
The requirement for building of the retaining comes about because of the actions of the property owner that are deterimental to the rights of the easement holder. So it seems only eqitable, that the property owner be required to allow the construction of the retaining wall and is possibly liable for a portion of the construction costs. I am sorry that I do not have proper citations to support this opinion. You may be headed for court to get an injunction to prevent further interference with the use of the easement.