Abandonment of Deeded Non-exclusive road easement

[jimbabwe]

What is the name of your state (only U.S. law)? CALIFORNIA

I am the dominant tenement of a deeded 50' non-exclusive road and public utility easement running completely along the northern 50' of the property of my neighbor to the south. The property line does NOT run down the middle of the easement. The easement is completely on the neighbor's (servient tenement's) property.

The entire length of the 50' easement is not necessary for access to my property and I would like to relocate the main entrance (my driveway) to my property to a part of the easement that is not even on this particular neighbor's property. The driveway to my house would then be completely on my property, away from any easement.

Once this re-routing of the driveway is complete, it would be obvious to the neighbor to the south that I would have absolutely no use for, and no intention of using, the easement upon his property. However, presently it acts as a buffer, preventing him from eventually building his house only 30' from the property line (due to the easement he has to build his house 50'+30'=80' from the property line.

My question is this: despite having a deeded easement, can the neighbor sue and win to have the burden of the easement removed from his land, due to my obvious lack of need for it?

Thank you.

 

[Some Random Guy]

You have indicated that this easement is for non-exclusive ingress/egress AND public utility. Since there is a utility aspect of this, it is doubtfull that your lack of use of the road would mean abandonment of the easement.

You mention that it is a non-exclusive easement. Are there other parties involved? Could the utility corridor service any other properties?

Lawsuits only benefit the lawyers. If you truly have no intention of ever using this easement again and there are no other parties involved, then consider offering to relinquish the easement if the southern neighbor agrees to pay for the legal/filing fees and pays you some $ to help you move your driveway.

 

[jimbabwe]

I agree that the lack of the use of the easement as a road would not negate the utilty aspect, but, the part of the easement to which I am referring would, do to topography and the wording of the deed, never be needed for a road OR the utilities. The deed is such that the easement benefits ONLY my parcel and none beyond, nor will it ever.

I agree that trading the easement for a new driveway is a good idea. However, if I were to relinquish the easement, the power and phone would also have to be moved. We'll see.

More to the point: can someone sue, and win, to force relinquishment of a deeded easement, just because the purpose for the creation of the easement can be proven to no longer exist?

Thanks...

 

[Some Random Guy]

However, if I were to relinquish the easement, the power and phone would also have to be moved. We'll see.

So in other words, you ARE using the easement for utilities. Therefore, the easement is still in use and the most that he would be able to win in a court battle is a modification of the easement to remove the ingress/egress portion, which still does him no good.

As for abandonment proceedings:

CALIFORNIA CODES
CIVIL CODE
SECTION 887.010-887.090

887.010. As used in this chapter, "easement" means a burden or
servitude upon land, whether or not attached to other land as an
incident or appurtenance, that allows the holder of the burden or
servitude to do acts upon the land.

887.020. This chapter does not apply to an easement that is part of
a unified or reciprocal system for the mutual benefit of multiple
parties.

887.030. This chapter supplements and does not limit or otherwise
affect the common law governing abandonment of an easement or any
other procedure provided by statute or otherwise for clearing an
abandoned easement from title to real property.

887.040. (a) The owner of real property subject to an easement may
bring an action to establish the abandonment of the easement and to
clear record title of the easement.
(b) The action shall be brought in the superior court of the
county in which the real property subject to the easement is located.

(c) The action shall be brought in the same manner and shall be
subject to the same procedure as an action to quiet title pursuant to
Chapter 4 (commencing with Section 760.010) of Title 10 of Part 2 of
the Code of Civil Procedure, to the extent applicable.

887.050. (a) For purposes of this chapter, an easement is abandoned
if all of the following conditions are satisfied for a period of 20
years immediately preceding commencement of the action to establish
abandonment of the easement:
(1) The easement is not used at any time.
(2) No separate property tax assessment is made of the easement
or, if made, no taxes are paid on the assessment.
(3) No instrument creating, reserving, transferring, or otherwise
evidencing the easement is recorded.
(b) This section applies notwithstanding any provision to the
contrary in the instrument creating, reserving, transferring, or
otherwise evidencing the easement or in another recorded document,
unless the instrument or other document provides an earlier
expiration date.

887.060. (a) The owner of an easement may at any time record a
notice of intent to preserve the easement.
(b) In lieu of the statement of the character of the interest
claimed and the record location of the documents creating or
evidencing the easement claimed, as otherwise required by paragraph
(2) of subdivision (b) of Section 880.330, and in lieu of the legal
description of the real property in which the interest is claimed, as
otherwise required by paragraph (3) of subdivision (b) of Section
880.330, and notwithstanding the provisions of Section 880.340, or
any other provision in this title, a notice of intent to preserve an
easement may refer generally and without specificity to any or all
easements claimed by the claimant in any real property situated in
the county.
(c) An easement is not abandoned for purposes of this chapter if
either of the following occurs:
(1) A notice of intent to preserve the easement is recorded within
20 years immediately preceding commencement of the action to
establish the abandonment of the easement.
(2) A notice of intent to preserve the easement is recorded
pursuant to Section 887.070 after commencement of the action to
establish the abandonment of the easement and before judgment is
entered in the action.

887.070. In an action to establish the abandonment of an easement
pursuant to this chapter, the court shall permit the owner of the
easement to record a late notice of intent to preserve the easement
as a condition of dismissal of the action, upon payment into court
for the benefit of the owner of the real property the litigation
expenses attributable to the easement or portion thereof as to which
the notice is recorded. As used in this section, the term
"litigation expenses" means recoverable costs and expenses reasonably
and necessarily incurred in preparation for the action, including a
reasonable attorney's fee.

887.080. An abandoned easement is unenforceable and is deemed to
have expired. A court order establishing abandonment of an easement
pursuant to this chapter is equivalent for all purposes to a
conveyance of the easement to the owner of the real property.

887.090. Subject to Sections 880.370 (grace period for recording
notice) and 887.020, this chapter applies to all easements, whether
executed or recorded before, on, or after January 1, 1986.

 

[jimbabwe]

Thanks for the citation of the California law.

The portion of the easement which COULD be subject to abandonment is the eastern part, which is east of the last telephone pole and the road to my house. In theory, if one were to examine the terrain and the home currently on my property, this easement would never be required for road OR public utility purposes. There would be no need to extend the road east beyond its current end where it crosses onto my property and there would be no need to extend the utilities beyond their current end at the last telephone pole.

Am I correct that, despite these facts, I can file a "Notice of Intent to Preserve Easement" and keep the easement where it is obviously not needed?

Thanks again.