"Access Easement"

[LS_8750]

Somewhere I have seen this term "access easement" debated, but cannot recall where.

The usual story is that the term "access" is interpreted to include utilities when there is no specific utility easement to the property.

Can anybody offer some guidance?

Thanks in advance.

[Warren Smith]

Dave Karoly will probably weigh in with applicable case law. My take is that an access easement by itself would not be sufficient for utilities, but an action could be brought for determination of an easement of necessity if there is no other means to serve a parcel. It would be simpler, however, to approach the subservient tenant to grant a utilities easement.

[dedkad]

I always make sure the easement lists all uses - access AND utilities. I would not be comfortable assuming that "access" meant utilities too.

[LS_8750]

Thank you Mr. Smith.

When you're the worm on the hook, you gotta invent ways to avoid getting bit.

I'm all good, no issues with me. I've just seen that word "access" used in easement descriptions enough to know that it only invites ambiguity..... It seems to me to be a generally loathed descriptor for a type of easement.... What century should we be thinking of when we contemplate the word "access". Especially when we look at old easements, say a hundred years ago or more..............

[dmi]

IT defined by the terms of the grant and the enjoyment of that easement. There is case law on the matter and generally where the easement is a private easement utilities are NOT part of the easement.rights. This is not the case with a public access easement.

[Dave Karoly, PLS]

It depends on the facts and circumstances at the time the easement was created.

If it was created in 1890 then utilities were probably not contemplated by the original parties. On the other hand if the easement was created in modern times with a Deed creating a tract together with an access easement it is possible utilities were included by implication unless they come from somewhere else through other easements. If the easement was only used for access and the property is served by utilities from elsewhere then utilities were likely not implied. However consider that a grant includes everything necessary for enjoyment of the property, in that case the grantee could probably prove utilities in the easement are necessary to the enjoyment of the property if utilities are unavailable from elsewhere.

There is probably case law but any case found could be distinguishable by its facts.

If the granting language is ambiguous the easement owner would have to be able to prove they have utility rights unless the servient tenement owner agrees and grants them. Agreement is the best way to resolve these things.

[Dave Karoly, PLS]

§ 15:27.Requirements for creation; common grantor, 6 Miller & Starr Cal. Real Est. § 15:27 (4th ed.):

"Implied easement for utilities. Easements created by necessity usually involve an access road to a parcel of property that is otherwise landlocked. However, the same implication may arise for other types of easements. For example, a parcel of property may have a road access but lack access for utilities. The same need would exist for the creation of an easement by
necessity for utility pipes, conduits, or wires. 30"

fn30 See Frederick v. Louis, 10 Cal. App. 2d 649, 651, 52 P.2d 533 (1st Dist. 1935).

[dmi]

easement by necessity is NOT the same thing as easement rights created by a document that describe an access easement. That is the question and not whether or not there is some mechanism to acquire the necessary rights required to enjoy the parcel in like fashion as other surrounding properties. The question as I read it was how to construe the document at hand.

Ca Civil Code
806. The extent of a servitude is determined by the terms of the
grant, or the nature of the enjoyment by which it was acquired.

[LS_8750]

Mr. Karoly, can you forward me a link to those references you cited?
I would like to read up on them.

[dmi]

https://scholar.google.com/scholar_case ... ciodt=2006

[Dave Karoly, PLS]

I can't directly link the case but any published case is available here:

http://www.lexisnexis.com/clients/CACourts/

Put in the citation and you can read it.

[Dave Karoly, PLS]

Clark - see your info email.

[LS_8750]

Thank you Mr. Karoly and Mr. Ince.