Easements:

I am currently involved in two separate legal cases involving access easements. Easements are some of the most frequently disputed land rights. They are generally unregulated, are often poorly defined both in scope and location, and may be undocumented and unrecorded. Almost all properties are affected by one type of easement or another and a good understanding of these effects is essential when considering land use. Although easements can be created for a variety of purposes, I will focus specifically on the various features of access easements as I have been studying these for the upcoming lawsuits.

Easements can be created in several ways. According to the Miller and Star California Real Estate Digest, these are: (1) and express grant, (2) an express reservation, (3) an implied grant, (4) an implied reservation, (5) necessity, (6) prescription, (7) a recorded covenant, (8) dedication, (9) condemnation, (10) estoppel, (11) balancing of hardship, of these, only numbers 1,2,7,8 and 9 exist without adjudication to perfect.

An access easement is a legal right. In the absence of specific language access implies unrestricted ingress and egress to the extent that the width of the easement allows. The right may not include the placement of utilities, or other uses not associated with access. If there is no express creation and an easement location is determined to be an existing road or path, the width of the easement is generally the width of the traveled way, exclusive of cuts and fill slopes or other supporting structures.

The first case I am considering involves the J&R lot. This parcel has access to a public road, but the outstanding building site is physically accessed by a narrow dirt road along the top of a steep ridge. East of the ridge top the property drops off abruptly into grades on which construction is unfeasible. Access easements do exist to link this property with public roads along the ridge top. The dirt road was passable and used from time to time by the owners of J&R until they discovered their neighbors building a house across the road over which they believed they had easement rights. In the course of attempting to stop the construction, research into existing deeds revealed that although the road has existed for many years, the access easement location is poorly defined, including distances such as approximately 220’ and approximately 300’ and bearings such as southwesterly, northerly, etc. In some areas the existing ridge top road coincides with the easements but in the area of the neighbor’s new house, the recorded easements do not appear to coincide with, or make reference to, existing roads.

Issues regarding this dispute require careful consideration of all documents that may clarify the location or intent of the recorded easements and my conclusions after this consideration are as follows:

Previous grantors intended to grant an access easement to the J & R lot. Although the precise location of the intended easement is not determinable of record, there is sufficient clarity to ascertain that the easements described were meant to provide access to the ridge top portion of the lot.

The owners of J & R acquired their property believing that the existing road was in the location described in the easement deed. This may constitute an implied easement.

The case for a prescriptive easement is not well supported because J& R did not have a residence on the lot and did not use the road on a regular (daily) basis.

The best interpretation of the deeded description would place the J & R access easement easterly of the existing road (and new house). It is certainly possible that the previous owners recognized the ridge top as the preferred building site and intended to relocate the road to the east, but it is unlikely that anyone would grant (or accept) an access easement through an area of excessive slope.

There is currently a house in the middle of the existing road and this area is no longer realistically available for traffic.

An engineer’s evaluation of potential driveway construction shows that it is possible to relocate the road to the east of the former road and existing house, although not in the “approximate location” as described by deed.

J & R are suing to obtain validation of the expressly granted easement and verification of the easement location as proposed by the engineer.

This is a picture of the proposed driveway. Red lines indicate the approximate easement location as described per deed. The proposed driveway location is indicated in yellow highlighter.