• Land Use Attorney Capitola

CASE UPDATE: When The Language Of An Easement Is General The Extent Of Its Use Is Established By Past Use.

The case of Rye v. Tahoe Truckee Sierra Disposal Company, Inc., (3rd Dist. 2013) 2013 WL 6578784, –Cal.Rptr.3d–, involved a fairly common dispute about the extent of an easement.

A garbage company had an easement, created by reservation in a deed, to use a certain parcel for “parking, ingress, egress, utilities and storage” related to its business. The subject parcel contained a paved area and an unpaved area, and the garbage company used the paved area.

The garbage company asserted its rights to use the entire parcel for its operations after the owner of the underlying fee began placing logs on an unpaved portion. Although the description of the easement in the deed was specific about the types of uses permitted, the description was not specific about the exact location or dimensions of the easement. The court of appeal affirmed the trial court’s application of these rules:

“When the instrument of conveyance grants an easement in general terms, without specifying or limiting the extent of its use, the permissible use is determined in the first instance by the intention of the parties and the purpose of the grant. Once the easement has been used for a reasonable time, the extent of its use is established by the past use…. the easement owner cannot subsequently enlarge its character so as to materially increase the burden on the servient tenement.”

The court found that the intention of the parties was evidenced by the garbage company’s historical use of the parcel, which was limited only to the paved area.

In Dolnikov. V. Ekizian, (2nd Dist. 2013) 2013 WL 6680755, –Cal.Rptr.3d–, the court addressed a more novel question: Can the underlying fee owner’s refusal to sign approvals necessary for the easement owner’s repair of the easement constitute an unreasonable interference with the easement?

In this case, the easement owner needed to do grading work and construct a retaining wall in order to make a hillside easement useable for driveway access to two houses that the easement owner was constructing. The City required the fee owner’s signature on a community driveway covenant and on the retaining wall building permit before the City would issue the building permits, but the fee owner refused, resulting in the City issuing a stop work order on the house construction.

The court applied the general rules that an easement holder has both “those interests expressed in the grant and those necessary for the full enjoyment of the easement,” (referred to as “incidental” or “secondary” easement rights), and that rules of reasonableness and mutual accommodation bind both the dominant and the servient owners. The court of appeal thus affirmed the trial court’s finding that the grading and retaining wall were necessary incidents of the easement, and that the fee owner’s refusals to sign the various documents were unreasonable and interfered with the easement owner’s use and enjoyment of the easement.

©2013 Berliner Cohen. This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship.

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Miles J. Dolinger
Attorney at Law

314 Capitola Avenue Capitola, CA 95010
Phone: (831) 477-9193
FAX: (831) 477-9196
miles@dolingerlaw.com

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