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Interference With Secondary Easements Does Not Require Physical Act

By Richard B. Gullen

When an easement is created by a grant, it includes both express and implied rights, also known as secondary easements, to take actions that are necessary for the full enjoyment of the easement. A secondary easement can be the right to make repairs, renewals, and replacements on the property that is servient to the easement. A right of way for access carries with it the implied right to make changes to the surface of the land as necessary to make it passable.

Secondary easement rights are limited by a rule of reason: neither party can conduct activities that unreasonably interfere with the other parties’ use of the property. For example, the servient owner cannot make it more difficult to use the easement, interfere with maintenance, or increase the risks for exercising an easement. To determine whether the holder of the servient estate has unreasonably interfered, the interests of the parties must be balanced to strike a reasonable accommodation that maximizes overall utility to the extent consistent with effectuating the purpose of the easement, subject to any different conclusion based on the intent or expectations of the parties.

Usually, interference by the servient owner consists of some form of physical blocking or obstruction which makes using the easement more difficult or impossible. However, in the recent case of Dolnikov v. Ekizian (2013) 222 Cal.App.4th 419, while constructing a driveway to access her property on an easement granted in 1942, the dominant owner sought to prevent erosion by grading and installing a retaining wall, but the servient owners refused to sign documents necessary for the building permits. The servient owners’ refusal to sign caused the city to revoke the dominant owner’s building permits, forcing construction to halt. The dominant owner filed suit against the servient owners in Superior Court, and the jury found that the defendant servient owners had unreasonably interfered with the dominant owner’s easement.

The issue before the Court of Appeal in Dolnikov was whether an intangible act that did not physically invade the easement (such as refusing to sign a covenant for a community driveway, refusing to sign a retaining wall permit, demanding money in exchange for granting rights that already existed in the easement, and making statements that the easement was lost by the grading) constituted an interference with the easement.

The Court of Appeal affirmed the jury verdict holding that although the servient owners did not physically obstruct the easement, their refusals to sign the documents constituted an unreasonable interference. The grading and retaining wall were secondary easements because they were necessary to prevent the land from eroding onto the roadway. The dominant owner acted reasonably by following the city’s requirements to merely excavate and modify the surface of the land necessary to make the easement passable. The dominant owner did not go beyond the bounds of the easement, increase the burden unnecessarily, or injure the servient owners’ rights.

On the other hand, the servient owners were continuing to prevent plaintiff from obtaining occupancy certificates. Their refusal to sign documents impeded plaintiff’s rights and rendered the easement useless for its intended purpose. Furthermore, the grading and retaining wall made the easement passable and, therefore, benefited the future development of the defendants’ property. By refusing to sign two documents required by the city, defendants did not simply make plaintiff’s use more difficult but, rather, made it impossible for plaintiff to use the easement at all, resulting in total obstruction of the easement.

The take-away from this case is that intangible acts or omissions can constitute actionable interference with the use of an easement, even when the conduct does not physically obstruct the easement.