Legal Question in Real Estate Law in California

Rights of Servient Tenement Property Owner

The servient estate is burdened with a 60' easement for the express purpose of ingress/egress and for the past 25 years a 30' asphalt road (within the 60' easement) has provided ingress and egress to 5 residences that have an easement right. One of the 5 residences has a new owner that has stated he intends to widen the 30' asphalt road to a 60' asphalt road to cover the entire 60' width of the easement; he intends on doing this with or without our consent. The new owner as an owner of the dominant tenement (easement holder) does he have the right to dictate and perform this work without the approval of the property owner (servient tenement)?

Asked on 2/08/08, 7:18 pm

1 Answer from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law
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Re: Rights of Servient Tenement Property Owner

Very likely not; there is a case almost directly on point, Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, holding, in a similar circumstance, that the easement holder cannot use the easement in any way that restricts or denies to the owner of the servient tenement his right to use his freehold in excess of what is minimally necessary to the express purposes of the easement and actual needs of the dominant tenement.

I urge you to get a copy of this decision and study it. If you wish, send me your e-mail address and I will send a copy of the Scruby case.

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2/08/08, 11:50 pm

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