Right of Way Widths and Courses

LS_8750 · Post by **LS_8750** » Thu Jan 20, 2011 4:39 pm

Hypothetical:

So the dominent tenant has an ingress/egress right of way across the servient tenent's parcel to the nearest county road. It is an old description, maybe 50 years or so, and the right of way is 10 ft. wide. Now the dominent tenant wants to build an addition on to his house, and the fire district says he needs a minimum 12 ft. wide road to access his house. Uh oh. What now?

Secondly, a mountain road right of way describes say a 40 ft. width and continues on some course for which the actual primative road cuts into the mountain on some course meandering in and out of the described right of way. Somebody wants to build a house way up in the hills using this road for access. It needs to be improved in a big way and there is no way to do so within the confines of the described right of way. Uh oh. What now?

Does anybody have any experience with this type of stuff?

Perhaps pursuing the "easement by necessity" route based on insufficient right of way description to accommodate newer fire district mandated access requirements?

Cheers.

RAM · Post by **RAM** » Thu Jan 20, 2011 6:35 pm

your client needs to secure additional easement, which usually meean they have to pay for it. PS per SRA PRC 4290, that 12' wide driveway needs turnouts as well and may have a maxium deadend length. No quick fix here

dmi · Post by **dmi** » Fri Jan 21, 2011 7:05 pm

I am with Ram, your client has an adequate easement for the current use. Now with the proposed changes require addition easement rights, for emergency vehicle access.

Ian Wilson · Post by **Ian Wilson** » Fri Jan 21, 2011 7:48 pm

First, try asking.

Under the fire codes, the additional few feer may be got through a claim of necessity. Public safety might hold sway.

RAM · Post by **RAM** » Sun Jan 23, 2011 10:27 am

you still need to meet all only and state regs to secure a building permit in rural areas refer to PRC 4290 & 4291 for driveway standards, controls in all of CA understand local agency adopt more stringent standards.

marchenko · Post by **marchenko** » Mon Jan 24, 2011 1:28 pm

I don't see how a claim for easement by necessity could be made since they can access their land today and have had no trouble accessing in the past. If they wanted to build a Marriott Hotel they would have trouble getting cars up there, but then they should pay for that extra easement.

Ian Wilson · Post by **Ian Wilson** » Mon Jan 24, 2011 1:46 pm

If the fire department now requires a wider access, then the easement widening would be by necessity for safety. The easement is for access.

The width of the easement as written and what is necessary for use are two different things. There are many cases where the width of the easement was narrowed. For example, an original ingress/egress easement 60' wide was intended because the court found that 60' was wiser than necessary. The same arguments could be made for widening an easement found too narrow for current ordinance.

Easements serve a purpose. If the purpose changes, then so can the easement. While it is much easier and cleaner when all parties agree to the changes, the courts can, and have stepped in to modify the easements to match current conditions and requirements.

There is nothing to prevent the court from awarding an additional 10' in width, subject, perhaps, to payment of a certain fee to the fee owner for the loss of control of the additional width.

Change in use or density of the dominant estate might make the arguments for widening a bit tougher to make, but, those arguments have been made successfully.

I don't have the specific citation available off the top of my head, but a case on point was one from the east side of Poway, California. An access easement was successfully widened to change from single owner access to access for a subdivision off Poway Road or Garden Road, as I recall. Sate: late '80's to early '90's.

LS_8750 · Post by **LS_8750** » Wed Jan 26, 2011 2:01 pm

I tend to side with Ian and Steve on this.

In the dominent estate driveway access across the servient estate, I'm not talking about increasing density of the dominant estate; I am talking about new requirements for emergency fire access essentially requiring additional width than the original right of way described. It seems logical (Huh?) that the argument could be made for "necessity".

As for the actual (private) mountain road cut meandering in and out of the described right of way, I agree that the easement as described could be said to be deficient, or faulty.

This is legal stuff I understand.

Does anybody have any examples?

Cheers.