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can landowner stop us from maintaining our easement road?

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H

hallkids

Junior Member
What is the name of your state? CA
Hi,

We have a 2000 yard long, 20' wide easement for "public road and utility" across the far edge of our neighbor's property. The easement is the driveway leading to our newly built home; our visitors and we are the only ones who use it. The deed says nothing about maintenance or the makeup of the road surface. Right now the road is gravel and weeds. Last weekend we mowed and sprayed the weeds with Roundup (staying within the 20'). The neighbor called the Sheriff and Butte County Agriculture Commissioner stating that we illegally mowed and sprayed "his" property. I showed the Sheriff and Ag Commissioner CA code 845 that states we "shall" maintain the easement. They both say that it's not enough information and want us to provide them with proof that we have the right to maintain our easement.

The neighbor was mad when we bought the land and found out we were going to build a home on it. He just assumed he'd be out here all by himself (we have a 2 acre residential parcel in an agricultural area, he has the adjacent 80 acre orchard - so it's not like we're on top of each other). We've done everything we can to be polite to this guy. I think we were too considerate when we moved the planned location of our house in order to perserve his view of Mt. Shasta. Now there is no pleasing him. If the neighbor had his way, he would have us driving through mud and brush to get to our property. At one point he even tried to convince the Ag commissioner he was allowing the weeds to grow on the easement "to create a conservation area for wildlife".

Do I really have to hire an attorney? Is there a CA court case somewhere that clearly states an easement owner has the right to spray, mow or maybe even pave the road? I'd love it if I could print out a case summary & provide it to them instead of hiring an attorney. Financially, it took all we had to buy the land and build the house.

Thank you for your time.
 


S

seniorjudge

Senior Member
hallkids said:
What is the name of your state? CA
Hi,

We have a 2000 yard long, 20' wide easement for "public road and utility" across the far edge of our neighbor's property. The easement is the driveway leading to our newly built home; our visitors and we are the only ones who use it. The deed says nothing about maintenance or the makeup of the road surface. Right now the road is gravel and weeds. Last weekend we mowed and sprayed the weeds with Roundup (staying within the 20'). The neighbor called the Sheriff and Butte County Agriculture Commissioner stating that we illegally mowed and sprayed "his" property. I showed the Sheriff and Ag Commissioner CA code 845 that states we "shall" maintain the easement. They both say that it's not enough information and want us to provide them with proof that we have the right to maintain our easement.

The neighbor was mad when we bought the land and found out we were going to build a home on it. He just assumed he'd be out here all by himself (we have a 2 acre residential parcel in an agricultural area, he has the adjacent 80 acre orchard - so it's not like we're on top of each other). We've done everything we can to be polite to this guy. I think we were too considerate when we moved the planned location of our house in order to perserve his view of Mt. Shasta. Now there is no pleasing him. If the neighbor had his way, he would have us driving through mud and brush to get to our property. At one point he even tried to convince the Ag commissioner he was allowing the weeds to grow on the easement "to create a conservation area for wildlife".

Do I really have to hire an attorney? Is there a CA court case somewhere that clearly states an easement owner has the right to spray, mow or maybe even pave the road? I'd love it if I could print out a case summary & provide it to them instead of hiring an attorney. Financially, it took all we had to buy the land and build the house.

Thank you for your time.
Click to expand...
You have no right to do anything to your neighbor's property; that is called trespassing.
 
justalayman

justalayman

Senior Member
seniorjudge said:
You have no right to do anything to your neighbor's property; that is called trespassing.
Click to expand...
Huh?? Have you read the noted statute?

By the statute it seems the OP to be correct. I don;t know about the paving thing but it would seem the owner of an easement is responsible for its' maintainance.

Maybe you could expand on you response SJ. Is there something the OP and I are missing here?

845. (a) The owner of any easement in the nature of a private
right-of-way, or of any land to which any such easement is attached,
shall maintain it in repair.
(b) If the easement is owned by more than one person, or is
attached to parcels of land under different ownership, the cost of
maintaining it in repair shall be shared by each owner of the
easement or the owners of the parcels of land, as the case may be,
pursuant to the terms of any agreement entered into by the parties
for that purpose. If any owner who is a party to the agreement
refuses to perform or fails after demand in writing to pay the owner'
s proportion of the cost, an action for specific performance or
contribution may be brought against that owner in a court of
competent jurisdiction by the other owners, either jointly or
severally.
(c) In the absence of an agreement, the cost shall be shared
proportionately to the use made of the easement by each owner.
Any owner of the easement, or any owner of land to which the
easement is attached, may apply to any court where the right-of-way
is located and that has jurisdiction over the amount in controversy
for the appointment of an impartial arbitrator to apportion the cost.
The application may be made before, during, or after performance of
the maintenance work. If the arbitration award is not accepted by
all of the owners, the court may enter a judgment determining the
proportionate liability of each owner. The judgment may be enforced
as a money judgment by any party against any other party to the
action.
(d) In the event that snow removal is not required under
subdivision (a) or under any independent contractual or statutory
duty, an agreement entered into pursuant to subdivision (b) to
maintain the easement in repair shall be construed to include snow
removal within the maintenance obligations of the agreement if all of
the following exist:
(1) Snow removal is not expressly precluded by the terms of the
agreement.
(2) Snow removal is necessary to provide access to the properties
served by the easement.
(3) Snow removal is approved in advance by the property owners or
their elected representatives in the same manner as provided by the
agreement for repairs to the easement.
(e) The provisions of this section do not apply to rights-of-way
held or used by railroad common carriers subject to the jurisdiction
of the Public Utilities Commission.
Click to expand...
 
H

hallkids

Junior Member
Thank you justalayman for posting the code and your comment.

Just to clarify in case my first post was unclear, I own the easement road that runs across the far edge of the neighbor's property. It was deeded to our then landlocked property by the neighbor in the 1970's.

I'm not a legal person (you can ask me anything medical and I might be able to help ;) ) but, my reading of CA civil code 845a seems to indicate that not only can I maintain the easement, but I have an obligation to do so or the neighbor can do it and sue me for the costs. What I really need is a summary of a recent CA case similar to mine where the easement owner was instructed to, or allowed to, maintain the easement in good repair including at minimum mowing and spraying.

Thank you again for your time.
 
P

pojo2

Senior Member
Out of ignorance I ask but can one OWN an easement as you indicate you do? Isn't an easement your right to use the property of another to gain access to the property you do own? So if I am correct isn't this easement area actually owned by the person you are feuding with? Making Sj's response correct? Out of ignorance I ask.
 
H

hallkids

Junior Member
pojo,

I think you are right, the neighbor "owns" the land. I think my word choice of "own" was poor. What we have is a grant deed of an easement for public road and utility on a 20' wide section across the neighbor's land. Currently, the road is gravel and barely accessable. It is our driveway and the only way to access our property. We are the only ones who use it. We would like to maintain the easement so that it continues to be a passable access to our home. It's not like I want to erect a building or anything. I simply want to mow and spray so the brush and weeds don't impede access to our home. The question is whether the neighbor can stop us from maintaining the easement when the deed is silent on maintenance.
 
B

BelizeBreeze

Senior Member
hallkids said:
pojo,

I think you are right, the neighbor "owns" the land. I think my word choice of "own" was poor. What we have is a grant deed of an easement for public road and utility on a 20' wide section across the neighbor's land. Currently, the road is gravel and barely accessable. It is our driveway and the only way to access our property. We are the only ones who use it. We would like to maintain the easement so that it continues to be a passable access to our home. It's not like I want to erect a building or anything. I simply want to mow and spray so the brush and weeds don't impede access to our home. The question is whether the neighbor can stop us from maintaining the easement when the deed is silent on maintenance.
Click to expand...
And of course, the answer remains the same...YES.

Now, have you asked the owner to allow you to keep the road up and pay the cost yourself?
 
H

hallkids

Junior Member
Yes, we've asked him, and he has said no. There is no reasoning with him.

Like I said in my first post, I think our biggest mistake was to try and be accommodating to him in the beginning, and now he thinks he runs the show and has a say over everything we do -- even on our property. I have tons of examples, but here are a few: we’ve had the property surveyed twice, both times the stakes magically disappeared. Twice last summer we hired someone mow our property, he comes over screaming obscenities at them saying that they are on his property (this is on our lot - not the easement!) and chases them away (we were at work both times). He ripped up all of the flowers I planted around my mailbox, the box is in the county right of way, not on his property, his nephew saw him do it and told us. He sprayed me in the face with round-up when I tried to talk to him about leaving my flowers alone. Last Tuesday he was walking around in my front yard carrying a saw in one hand and taking pictures of our home and property with a camera in the other. My 14yo daughter was home sick from school and terrified. Each time the Sheriff comes out, each time he lies like crazy, and it's our word against his. The DA almost prosecuted the Round up incident as assault and battery, but decided that there wasn't enough evidence because the ER didn't test the residue removed from my face and eyes and thus couldn't prove without a doubt he sprayed me with anything besides water (never mind it was in a commercial grade spray rig he was pulling behind his 4wheeler spraying the orchard). Have I mentioned that I'm barely 5' and a woman & he's well over 6' and we still can't get help from the Sheriff? Ugggg we've tried hiring an attorney to represent us, but we live in a small rural area and it appears to be a "good old boys" network.
 
justalayman

justalayman

Senior Member
pojo2 said:
Out of ignorance I ask but can one OWN an easement as you indicate you do? Isn't an easement your right to use the property of another to gain access to the property you do own? So if I am correct isn't this easement area actually owned by the person you are feuding with? Making Sj's response correct? Out of ignorance I ask.
Click to expand...
Ok , let's go with BB's idea and run with it. If the title holder is required to maintain the easement at the grantee's expense, if he fails to maintain it it would effectively restrict the grantee's use of the easement and subsequent access to their property. Now I'm sure there is some sort of legal term for this, probably some sort of constructive this or that.

There would also be the concern of damages to the vehicles if the easement is not maintained properly. This should then fall on the shoulders of the grantee if it his responsibility to maintain the easement.

Bottom line is either the easement grantor needs to let the easement grantee maintain the easement or do it himself. Either way, the OP gets a decent road.

BTW: a video camera would be helpful in your continued disputes and attacks
 
L

lwpat

Senior Member
Out of ignorance I ask but can one OWN an easement as you indicate you do?
Click to expand...
Yes, a person can own an easement. It is transferrable if it runs with the land as this one would since it is by deed and not to a particular person. There is also an easement by necessity since her parcel is landlocked. The neighbor "owns" the land but she can use it as reasonably necessary. That includes paving it, installing utilities, spraying and cutting the grass.

What you need to do is to have an attorney write him a "cease and desist" letter. This should only cost about 200. He also has the right to use and be on the easement but not to come on your land. If there are further problems then you would have grounds for a restraining order.

Send a copy of the letter ,deed, and statute to the county attorney and copy the shefiff and commissioner.

Senior Judge, you been at the Jack Daniels again?
 
B

BelizeBreeze

Senior Member
You do understand that our poster is NOT the grantor but the grantee of the easement.

So, where do you come up with a cease and desist? Cease and desist what? The poster has no inherent rights to do anything but travel over the easement. No right to upgrade, maintain or anything else.

period.
 
L

lwpat

Senior Member
The cease and desist is to stop tresspassing on her land, destroying her property (flowers), and interfering with use of easement.

Scruby v. Vintage Grapevine, Inc.
37 Cal.App.4th 697, 43 Cal.Rptr.2d 810


Conveyance of "nonexclusive easement, 52 feet in width, for road and utility purposes" gave owner of servient tenement right to place improvements upon easement as long as they did not unreasonably interfere with right of owner of dominant tenement to ingress and egress; owner of dominant tenement did not have right to use every portion of easement.
 
B

BelizeBreeze

Senior Member
No question about the flowers.

But as for the easement, case law does not equate to the dismissal of the right of a landowner to be secure in their property. This poster would be well served to also cease and desist such tesspassing against the rights of the dominent tenement.

We don't know the exact wording of the easement and we don't know the facts surrounding the maintenance of said easement. Therefore, the only legitimate advice which anyone can give this poster is to use the easement for ONLY those purposes expressly detailed in the agreement and if necessary, write the cease and desist to stop the neighbor from tresspassing and destroying private property.

in the meantime, they need to decide which will be the most prudent path to follow:

1. file suit against the dominent tenement for the upkeep of the easement;

2. continue as they are doing and face their own lawsuit, or;

3. construct their own driveway and be done with it.
 
P

pojo2

Senior Member
BelizeBreeze said:
The poster has no inherent rights to do anything but travel over the easement. No right to upgrade, maintain or anything else.

period.
Click to expand...
Exactly!

Like I said in my first post, I think our biggest mistake was to try and be accommodating to him in the beginning, and now he thinks he runs the show

He does run the show where this easement is concerned.
 
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