by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

Here is a recent easement case that gives a little review of basic principles. I've divided it into two reports because that's the way the stuff appears in our Quarterly Report, and the two principles in the two reports are distinct.

EASEMENTS; SCOPE; ACCESS: Owner of non-exclusive access easement may lack the right to pave the easement if this may lead to loss of land use rights by dominant easement. Scruby v. Vintage Grapevine, Inc., 43 Cal. Rptr. 2d 810 (Cal. App. 1995)

Here, the court actually ordered the dominant tenant to remove paving from the right of way. The circumstances were these:

Although the easement had an identified width, it was non-exclusive. Dominant and servient tenants both used the area for access to their properties. The servient's property was a high-traffic, public facility, and the County had granted a use permit after reaching an agreement with servient specifically limiting the access from the highway. The highway entrance was within the easement area, but covered only part of it. This entrance provided the safest turning radius from the highway. The dominant tenant was aware of the negotiations over the permit and highway access, and did not participate. The dominant tenant later paved another area of the easement, thus providing a separate entranceway into the area, which could be used by visitors to the servient tenant, and thus violated the servient's use permit. Held: Even though the dominant tenant normally would be permitted to use this area for access pursuant to the easement, and even though dominant was not itself subject to restrictions for access to the highway (since it apparently did not conduct a business open to the public, it nevertheless had to remove the paving creating the new entranceway. Domenant had adequate access from the existing entranceway and its creation of the new entrancway was an unreasonable surcharge of its easement.

Comment: Critical here is the fact that the dominant apparently had adequate access without the new entranceway. Still, it is a rare case where the holder of access rights will be instructed to remove paving installed to facilitate those rights.

EASEMENTS; SCOPE; ACCESS: Even though grant of non-exclusive easement specifies a certain width, servient tenant may make use of portions of easement area that blocks use of that area from use as access if the dominant owner still has reasonable access to dominant's property. Scruby v. Vintage Grapevine, Inc., 43 Cal. Rptr. 2d 810 (Cal. App. 1995)

Servient owner located equipment and stacked boxes on the easement area, which activities obviously rendered that part of the easement unavailable for access to dominant's property. Nevertheless, the dominant was never blocked in its access to the property across the easement. This degree of access, the court holds, is all the dominant bargained for.

Comment: Question One: Would the same interpretation be true of an exclusive easement? In other words, would the servient tenant be able to use the area for purposes other than access if the dominant tenant still had reasonable access? Answer: probably yes, though the actual interpretation may depend upon other facts.

Question Two: Would the servient owner be able to furnish the dominant with a reasonable alternative access right across other property because it wanted to make fuller use of the easement area? Answer: Probably no; we still recognize easements generally as property rights in specific property.

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