I was involved in potential court case a year or so ago that settled before it went to court. The details of the case are intriguing and I always intended to follow up with further research, which I never got around to.
The case was filed by the DOM against the SER suing to remove landscaping improvements within the 40 foot wide Ingress/Egress and Utilities Easement. I was hired by the plaintiff to survey the location of the easement and improvements within the easement. The easement crosses 3 parcels and serves Plaintiff's property at the end of common driveway that serves all 4 properties. The 3 lower SER properties share the easement with DOM and there is a mutual d/w maintenance agreement between all 4 parties. The maintenance agreement specifies only that each party will be responsible for their pro-rata share based on the distance from the public r/w to the access point of each property. The width and slope of the paved driveway meets the current county standards.
Plaintiff claims the right to widen driveway out to the full width of the easement (considering drainage, slopes, utilities etc.) and remove the landscape features within the easement. Plaintiff claims right to the full width of easement regardless of the location of actual paved driveway. The driveway is 20 feet wide and meanders within the 40 foot easement. The landscaping is adjacent to the driveway and was installed by the individual property owners.
The question is whether or not a DOM has the right to enjoy the use of the entire easement or only that portion required to satisfy the intent of the ingress/egress, utilities, etc. Any thoughts, opinions?
Easement and Rights of Way - Rights of Dominant Tenement
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dmi
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The terms of the grant and the expression of those terms in the use of the easement. A 20' wide road was built and that consitutes the extent of the enjoyment of the easement, as far as roadway width is concerned. No one can now come back and put in a 40' road. If the grant of easement is silent on the matter of landscaping, then there is no right to landscape under that grant. A perscriptive right to landscape may have ripened, but a surveyor cannot make that call.
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mpallamary
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Try Scruby
Let me know if this addresses your question.
Good luck.
Good luck.
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Ian Wilson
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Mike beat me to it. Scruby v Vintage Grapevine is probably the most definitive case regarding the use width v described width of easements.
There a couple of other cases, including one from Maryland in which the plaintiff and respondent positions were the reverse of your current case. The testimony of the sister of the respondent in reply to a question under cross-examination regarding the purpose of a barbed wires fence closing off a part of the easement was actually quoted in the appellate opinion: “Nothing says keep out like a barbed wired fence.”
Keep in mind, however, that these cases are fact driven. Without having the documents to review, we can’t make much of a clear statement as to the shape of the case. For example, the original subdivider may have left clear language regarding the future intention to utilize the entire width of the easement for access to a future subdivision he planned. The servient estates may have agreed to some sort of landscaping ban within the easement. Additionally, any survey made at the time of the creation of the deed may help to explain that the driveway location is due to efficacy and topography within the wider easement.
In short, while I would rely on Scruby as being definitive, there are any number of circumstances that would cause me to change my opinion.
How was the case settled?
.
There a couple of other cases, including one from Maryland in which the plaintiff and respondent positions were the reverse of your current case. The testimony of the sister of the respondent in reply to a question under cross-examination regarding the purpose of a barbed wires fence closing off a part of the easement was actually quoted in the appellate opinion: “Nothing says keep out like a barbed wired fence.”
Keep in mind, however, that these cases are fact driven. Without having the documents to review, we can’t make much of a clear statement as to the shape of the case. For example, the original subdivider may have left clear language regarding the future intention to utilize the entire width of the easement for access to a future subdivision he planned. The servient estates may have agreed to some sort of landscaping ban within the easement. Additionally, any survey made at the time of the creation of the deed may help to explain that the driveway location is due to efficacy and topography within the wider easement.
In short, while I would rely on Scruby as being definitive, there are any number of circumstances that would cause me to change my opinion.
How was the case settled?
.
Ian Wilson, P.L.S. (CA / NV / CO)
Alameda County Surveyor
Alameda County Surveyor
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MFORD
mpallamary the court case is what I was looking for. The easement grant was neither "exclusive" nor "nonexclusive", which was part of the problem.
Ian the case settled with the defendant buying the plaintiff off for less than the defense would cost. The driveway and landscaping improvements stayed in place.
Ian the case settled with the defendant buying the plaintiff off for less than the defense would cost. The driveway and landscaping improvements stayed in place.