Can servient owner place speed bumps in shared access easement to reduce speeding

showsomerespect said:

Hawaii: Common situation, our rear neighbor has an access easement over our property via our shared driveway.
ED: I have searched the forum and read every thread that applied and I'm posting a new thread because the answers I've seen here go both ways ...

Summary: We consider that she and her many guests (and tenants, it's a duplex behind us) drive at an unsafe speed--20 or more mph. We think 5 mph is safe for the situation. We have tried talking, writing, posting signs, and no result. We want to put in speed bumps and she says she will sue us if we do.

Easement:
There's no question here that she has a legal right of access. This was originally a one acre parcel that was subdivided by original owners into three parcels, with the two rear parcels landlocked except by this shared access easement. It is also a utility easement for servicing these properties. We live on the middle parcel and also own the vacant front parcel, so we are both servient to her usage and dominant with respect to the front parcel.
The easement is recorded but with a minimal amount of clarification as to respective rights.

Easement wording: "Road and Utility Easement 1 across Lot B-1, and Road and Utility Easement 2 across Lot B-2, to be used in common with others, and described as follows:" (followed by metes and bounds physical description).
As to what was envisioned for usage: the easement was created in 1975 when property was subdivided, but the back lot (B-3) was not sold or anything built on it until 1984. Zoning is and was residential ohana (SFR w/ second dwelling permitted).

Safety issues and layout:
The easement is 125 feet long through each parcel (250 ft total), and 14 feet wide. It has a couple of significant blind spots. It passes by a paved parking area in front of our carport where cars pull out into the drive, it has a zero setback from our carport/attached improvement about 55 feet long, where she always speeds up. Behind that 55 foot strip is our rear parking area where cars must pull out without any visibility of what may be coming past the carport/improvements. We also have children who visit and we and our family walk down the easement frequently (including in the area along the carport where there isn't anywhere to go to the side if a speeding car is coming). We feel strongly that 5 mph is a safe speed.

As to the effect on our property, as I said it's a zero setback so the cars are traveling about a foot from some of our living space, and about twelve feet from bedrooms. It's very stressful when they whoosh through. We also have cats that we love, but when we told her we had concern for our pets being mowed down on our own property, she threatened to put out bait and trap the cats (well-fed, spayed cats with all their shots, not pests) -- which isn't illegal for her to do but pretty much destroys our feelings that she's a decent person we can work with. Her threats to the cats have been a big deterrent to our being pro-active, but on the other hand we and family members are at risk.

Interactions:
We initially tried talking in a friendly way but the bottom line is she does not want to slow down and disagrees she drives too fast. She has a lot of parties, day and night, and she and her visitors are always in a hurry. There is a lot of traffic to her house that drives in and drives right back out, similar to if someone was selling drugs. We think she runs a social gambling scene and people are betting, but we cannot prove it, we were told they gamble by the neighbor who lives below them.

The reason I mention the gambling is because the people driving in and out drive with a lead foot and our joke (but not a joke) is that they're rushing off to the ATM so they can get back in the game. They're not driving attentively, and they don't necessarily know our patterns and what to watch for. Most of her visitors don't speak English (Japanese only) and do not respond to our gestures to please slow down. Some of them use our parking area (not in the easement) to turn around. Our neighbor seems to drink and drive; she goes in and out 6-10 times a day and the later it gets the faster she drives. This is not something we can prove or that the police here would take interest in. It's something we observe that to us increases the risks something bad will happen.

I think the prior owners had a problem with her but they chose to sell the house (and did not disclose the issue, but no point saying sue them as they moved to another state). Prior to 2002, the whole property was owned by her family (cousins, I think), so she has been doing what she wants for about 20 years here, and feels we are intrusive newcomers. We are newcomers, but we respect her rights and would like the same from her.

After talking to her we posted friendly signs saying please drive slow, watch for children, etc.., but it did not work. One of her visitors came "that close" to hitting my son when he was pulling out of our parking, but the driver refused to acknowledge it was a problem. We then tried to talk to her again and she got mad. We told her we would have to put in speed bumps. We also put that in writing as it's hard to assess how well she understands English.

We then got a letter from her attorney saying speed bumps would interfere with her easement rights and she refuses to allow it. He also said we are "harassing" her by talking to her or writing her because she doesn't speak English well so we are not to make any contact with her except through his office and we should have our attorney contact him. Since that time, traffic has gotten faster, if anything, and she and her guests tend to rev their engines if they pass us on foot. She has passed about a foot from our persons at about 20 mph.

The reason we haven't gone to an attorney is that they cost upwards of $200 an hour here and we are well aware her attorney wants to scare us into running up some big bills which will very shortly break our bank. I've taken law classes and I have no problem understanding what he is saying or with reading case law. Unfortunately, while I know my way around a California law library quite well I can't say the same with Hawaii.

Re speed bumps -- we will have to put up with them too and it's not something I want, but I don't see another way of getting her to slow down short of taking her to court and asking for an injunction against the speeding, which we can't afford to do. My husband is 67 and I am disabled and we live on Social Security, so "retain an attorney" is equivalent to "can't pay the mortgage next month."

Re speed bump law the only thing I have found in Hawaii is a case where owners of a private road were sued for failing to make it safe by installing speed bumps. Wemple v. Dahman, NO. 21497 , SUPREME COURT OF HAWAI'I , January 30, 2004

I am concerned that the Florida case supports her lawyer's position:
"The placing of speed bumps on an easement as in Monell v. Golfview Road Association, 359 So. 2d 2 (Fla. 2nd DCA 1978), without standing to do so, is considered to be unreasonable interference with the easement."

I'm encouraged by this Missouri case as it seems very applicable to our situation:
"Where servient estate owner constructs speed bumps upon ingress and egress easement shared by dominant and servient estate owners, the speed bumps do not substantially interfere with the dominant estate owner_s use of the easement and the dominant estate owner is enjoined from removing the speed bumps. VanCleve v. Sparks, 132 S.W.3d 902 (Mo.App. S.D. 2004)."

Her attorney did not provide any case law. We've asked him to do so.

We're trying to find out if our legal position has merit, in which case we will install the speed bumps. If it seems she has a good basis to sue us, we won't. Meanwhile we are trying to reason with her through her attorney by pointing out her own liability in case of an accident occurring, but not getting a reasonable response to date.

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