Note - The following information is a general overview on
easement law in California. It should be viewed as mere theory. The
purpose of this tutorial is to offer insight into the breadth and
complexity of easement law. Actual application of the law to a particular
situation requires careful examination of the circumstances and review of
current law. This tutorial will not be updated and some court decision
could make any part of it exactly wrong without notice. This tutorial is
also far from complete. In the interest of brevity I left out many
important concepts and adjustments to the general rules. Law
libraries are generally available in or near the County Courthouse. Most
are open to the public. Nolo Press
publishes legal books for non-laywers. When it comes to real prperty law,
please be careful. It is more complex than many attorneys understand.
In California the number one source of malpractice based on
misunderstanding the law is in real property.
A Brief Tutorial on Easements
Introduction The question of the existence of an easement can
arise in a variety of circumstances. The most common example is where the
owner of one parcel of land claims a right to use a road across the lands
of another. It is not unusual, however, for one landowner to claim a
right to a view across the lands of a neighbor. The landowner then also
claims a right to require that the neighbor keep trees, buildings and
other obstructions from interefering with that view. Similarly issues are
regularly raised about the right to use the airspace over the lands of
another, or to take water, timber, or various minerals from another's
land. Finally there is the question whether the rights belong to a
particular landowner, a particular person, or the public in general.
What is an easement?
California law recognizes numerous easements. An
easement is a right, either to (1) use another's land, (2) prevent the
owner of land from making a particular use of it, or (3) take something
from land owned by another. The land that the holder of the easement may
use, or prevent the use of, is the servient tenement. An
easement is called a burden on the land because of the impairment of the
full scope of ownership rights. For example, an owner of land ordinarily
has a right to exclude others from coming onto the land. When the owner
of land grants an easement to use a road across that land the owner has
given up an incident of ownership, i.e. the right to exclude.
An easement must burden a specific parcel of land.
Every easement must identify the servient tenement, the land that is
burdened by the easement. Sometimes the servient tenement is only loosely
identified, such as when the grantor grants an easement over "my land"
without further description. If a court cannot positively identify the
servient land, the court will not uphold the easement.
An easement may benefit an individual, or the owner of specific
An easement may be held either by a specific person (an
easement in gross) or by the owner of a specific parcel
of land (an appurtenant easement). Most easements are
appurtenant easements. For example, the right to use a road across
someone's land is usually given in connection to the ownership of other
land nearby. When a landowner grants an easement to a neighbor to use a
road, the landowner will usually expect that if the neighbor sells the
property the new owner, not the original neighbor, will have the right to
use the road. An appurtenant easement, therefore, always will involve at
least two parcels of land. One, the servient tenement, is burdened with
the easement. The second, the dominant tenement, refers
to the land whose owner has the right to the benefit of the easement.
The difference between an easement in gross, and an appurtenant
easement is often critical to the landowner. In some cases it might limit
the landowner's rights to use an easement, and in others it will identify
when a person's claim of a right to use the land is excessive. Sometimes
an easement will not specifically state whether it is appurtenant, or in
gross. In that case the courts assume it is appurtenant to the land owned
by the person receiving the easement. When the easement is appurtenant,
it does not matter who the original owners were. If they no longer own
the dominant tenements, then they no longer have any rights to the
easements. Because the easement is attached to ownership of the land,
even persons who have only a portion of the original parcels have a right
to use the easement.
In a reciprocal easement each person both grants and
receives an easement. If Charley Landowner and Fred Neighbor create
reciprocal access easements, then Charley can pass over Fred's land and
Fred can pass over Charley's. This creation of reciprocal easements is
What are the rights of the easement holder?
The easement holder's rights depend upon the scope of the
The scope of the easement defines the rights of the easement holder.
In a written easement the scope of the easement must be at least broadly
stated, for example: "I, Charley Landowner, grant Fred Neighbor the right
to use my road for access to his land." Often an easement will have
several permissible uses. A road easement is often accompanied by the
right to install utility lines. The stated rights are very important in
determining the rights of both Charley Landowner and Fred Neighbor. In
the example above Charley Landowner did not provide an easement for Fred
Neighbor to install utility lines, and thus Fred may not do so.
The rights of the easement holder overlie the rights
of the owner. The owner of the land has the underlying
rights in the land. The owner may not interfere with the rights granted
by the easement, because those rights overlie the normal rights of
ownership. The owner of the servient tenement has given up a right (to do
or not do something) that would exist if the easement did not exist.
A typical easement may provide a number of uses e.g. ingress and
egress of pedestrians, vehicles and hauling of lumber and other commercial
purposes, and installation and maintenance of public utility lines,
including gas, water, electrical and telephone lines.
The easement holder can do nothing unless it is authorized by the
scope of the easement.
An easement holder is limited to the rights granted. The easement
holder may not undertake a use not within the scope of the grant
regardless of the lack of interference with others' use of the land. When
the easement holder uses the easement in a manner not authorized by the
easement, that easement holder has overburdened the
easement. The term is specific to impermissible use of an easement by an
easement holder. It is, thus, not correct to suggest that the landowner
of the servient tenement has "overburdened" it.
Overburdening occurs in a number of ways. An appurtenant easement
attaches only to specific parcels of land, not to the individuals who own
the land. When Charley Landowner granted the access easement to Fred
Neighbor, Fred owned only parcel B. If Fred later buys the adjoining
parcel C, Fred may not use the easement for access to parcel C. This
principal is very important to the landowner in many instances. Its
purpose is to allow Charley to predict the degree of use that will
probably occur on the easement.
Overburdening also occurs when the easement holder uses it for an
unauthorized purpose. Thus, that Charley Landowner gave Fred Neighbor a
right to use a road for access does not give Fred Neighbor a right to use
the road for other purposes. Fred Neighbor cannot, for example, leave
vehicles parked on the road. Such a use is not necessary to provide the
Overburdening also can occur when the level of use of the easement
exceeds that which was reasonably expected by the person granting the
easement. This is a much rarer situation simply because the courts hold
that it is natural to an easement for the level of use to change over
time. For example: Fred Neighbor could not extend the easement to a new
parcel of land. It is, however, perfectly within the scope of the
easement to subdivide the original parcel B with each new owner having the
same rights across Charley Landowner's land as does Fred. The increasing
number of individuals using the easement, caused by the subdivision of the
original parcels is a normal and expected event. Increased use by
subdivision is not an overburdening because the easement attaches to the
ownership of the land. Subdivisions simply add new owners to the original
It would be especially difficult to claim an overburdening of a road
based on overuse when the easement itself specifically contemplates
subdivisions of the dominant parcels, and the related increased use,
including increased pedestrian and vehicle traffic.
Certain rights necessary to make use of the easement are implied
as within the scope of the easement.
While rights stated in a written document generally define the scope
of an easement, sometimes there are additional implied rights. Those
implied rights are limited to what is necessary for the easement holder to
make beneficial use of the easement. For example suppose the following
grant: "I, Charley Landowner grant to Fred Neighbor an easement for a
water pipeline across my land." The grant does not say that Fred Neighbor
can enter Charley Landowner's property, but there is an implied right to
do so for the limited purposes of installing and maintaining the pipeline.
The implied rights are very limited and their exact nature depends a great
deal on the facts involved in the particular easement.
Legal reference texts discuss rights of an easement holder to go
beyond the express scope of the easement to make repairs. General legal
principles provide that the easement holder may not modify an easement if
it significantly increases the burden on the servient tenement.
What are the rights of the owner of the land burdened by the
The owner of the servient tenement may do anything which does not
with the use granted to the easement holder.
An easement limits the rights of the landowner, but only by the
obligation not to interfere with the rights granted to the easement
holder. The easement holder cannot object to any use of the land unless
it interferes with the easement holder's use of the easement.
Most easements are non-exclusive. In a
non-exclusive easement the easement holder must expect to share the
easement with others. Thus, Charley Landowner can follow the grant to
Fred Neighbor with grants to Carol Friend, owner of Parcel D, and Toni
Adjoiner, owner of Parcel E. Charley Landowner also can use the road
himself. An exclusive easement, in contrast, is one in
which the easement holder has the sole right of use.
The typical road easement is specifically non-exclusive so each of
the landowners may grant rights across his or her property to other
persons who were not a party to that agreement. Of course, they could not
grant rights in the entire road, but only as to the portions they owned.
As owner of the underlying land the landowner has every right to grant
easements to others. It may extend, if it chooses, the use to other lands
that it owns. As noted above, the only restriction on the landowner's use
of its land, including road, is that it may not unreasonably interfere
with the ability of the easement holders to use the road for the purposes
described in their deeds.
Appurtenant easement - An easement held by the owner of a
specific parcel of land. The ease`ment stays with the land, thus whoever
owns the land owns the easement. (Contrast with easement in gross)
Dominant tenement - The land whose owner has the right to
the benefit of the easement. (Contrast with servient tenement)
Easement - An easement is a right, either to use
another's land, to prevent the owner of land from making a particular use
of it, or to take something from land owned by another.
Easement in gross - An easement held by a specific
person. An easement in gross is not related to the ownership of any
particular land. (Contrast with appurtenant easement)
Exclusive use - A right granted to an easement holder
which entitles the easement holder to exclude all others, including the
Non-exclusive use - The typical form of easement in which
the easement holder shares the right of use with others.
Overburdening - When the easement holder uses the
easement in a manner not authorized by the easement, that easement holder
has overburdened the easement.
Overlying rights - The rights of the easement holder that
overlie, or are superior to the rights of the owner and any others with a
possessory interest in the land.
Reciprocal easement - each person both grants and
receives an easement.
Servient tenement - The land that the holder of the
easement may use, or prevent the use of, is the servient tenement. The
servient tenement is the land burdened with the easement. (Contrast with
Underlying rights - The rights to the property otherwise
burdened by an easement. The rights that would exist except for the
superior, overriding rights created by the easement.
More on Easements
The following is more detailed inforamtion culled from a much more
extensive document. I tried to pick the most commonly occurring
situations, or the most poorly understood.
An express easement is one created in writing, an implied easement is one
created without a writing. The law does not favor implied easements.The
law will recognize an implied easement only where use of the easement was
apparent and continuous at the time the claimant acquired the dominent
land. Easements may be implied by presumption or by representation. For
example where the seller of a large tract of land shows the purchaser a
map which discloses the existence of a way and assures the purchaser of
the use of the way, and the way has been in use, the purchaser has an
easement in that way.
If a writing is not a direct or effective grant of rights it may
nonetheless be important in determining intent or whether there are any
rights in the public. For example a petition to create a public road
evidences an intent to convey to the public rights in the road. It
becomes a public road if the governing body accepts. But it may also
create rights in the public if the public accepts through use. Writings
may also show the existence of easements thus supporting implied
Roads and Highways A highway is a road in
which the public has a right of access. A highway may be either a public
or a private road. The distinction between public roads and private roads
is who is responsible to maintain them, not who has rights of access
across them. By statute a public road is created when the county
expressly or impliedly accepts an express offer of dedication. That is not
the only way rights can be created in the public. The public entity can
take title to an easement, particularly an easement for other than a road,
by grant in the same manner as a private party.
Public rights in private roads It is possible for the
public to gain rights in privately maintained roads. When that occurs
there is a public highway in a private road. A highway may be created by
prescription or either statutory or common-law dedication. If the owner
of the road knows of use by the public, and neither gives permission nor
objects, then the public may acquire rights in the road. Also, use
coupled with intent of the owner to dedicate might establish dedication.
When subdividers offer a street for dedication, although there is no
express acceptance, the public's acceptance may be implied by use, when
the use is acquiesenced in by the owners of the underlying fee.
Roads and open space easements are two examples of uses that may be
dedicated to the public. Since the beginning of this century courts have
begun to turn away from implied dedications to public use. Use of the
term "highway" does not necessarily create rights in the public. A road
that is narrow and in poor condition is evidence that the owner did not
intend to dedicate it to public use. More persuasive evidence is required
when the property is located in sparsely settled open-country area than in
a metropolitan area. Payment of taxes on the area burdened infers lack of
Whether there has been an implied dedication depends upon the
particular circumstances of the case. A California statute has abrogated
the common law rule of implied dedication through mere public use. There
is some evidence, however, that implied dedication can still create a
public right where there are affirmative acts to show an intent to
An implied dedication does not create a responsibility in the county
to maintain the road. The dedication results in a private road, open as a
highway to the public.
PRESCRIPTIVE EASEMENTS Customarily a
property owner voluntarily creates an easement by giving a deed to the
user. In other cases long continued use creates an easement called a
prescriptive easement. In theory a prescriptive easement, like adverse
possession, is legalized theft. The user takes the right without the
owner's knowledge or permission. In practice it is less sinister and more
benign a concept.
The prescriptive use usually originates in the sincere belief that the
user has the right of use. The owner's failure to take serious steps to
prevent the unauthorized use supports that belief. Eventually the user
comes to rely on the use of the easement. The long continued use suggests
that it works little hardship on the owner.
The elements that a prescriptive user must show come from a balancing of
various public policies. There are cases where applying the legal
principles is unfair, but in the majority of reported cases the court
applies the principles for a fair result.
Elements The claimant must show that the claimant (1) used
the property or the easement (2) continuously (3) for a period of five
years, (4) under a claim of right (a) without permission of the owner (b)
therefore hostile and adverse to the owner and (5) in a manner which was
open, notorious, and clearly visible to the owner of the burdened land.
The person claiming a prescriptive easement has the burden of proving each
Actual Use An easement is the use of another's
property. To establish a prescriptive easement the claimant must prove
the use the claimant made of the property. The prescriptive easement must
be based on actual use of the claimed rights. If a motor vehicle
right-of- way is prescriptively used for cattle herding by people and
horses the court is justified in defining the easement in terms of that
actual use. The court may not, however, extend that easement to unrelated
uses such as a pipeline easement.
Definite and certain line of travel The claimant of
prescriptive easement for vehicle use must show use of a definite and
certain line of travel for the statutory period. Substantial deviations
in the location or nature of the easement during the prescriptive period
will not be deemed continuous. Slight deviations, however, do not defeat
Under Claim of Right; Hostile And Adverse A person, to
acquire a prescriptive easement, must use another's property under a claim
of a right to use the property. It does not matter if the person claiming
the right believes there is a right but is mistaken. It does not matter
if the person knows there is no right but decides to claim the right. Use
with hostile and adverse intent simply means use as if by right.
One who claims a right to use an easement and uses it believing that
permission, therefore, is unnecessary shows the necessary adverse intent.
In contrast, a court presumes that one who seeks permission does so
because that person is not claiming a right, and that permission is
necessary. Permissive use is not hostile nor use with adverse intent.
Nonpermissive If use of an easement is by permission,
then there is no adverse claim. Permission is a definite act, not merely
a failure to object. Permissive use is not hostile nor use with adverse
intent because is not consistent with a claim of right and does not put
the landowner on notice of any adverse claim. Once permission is given
the law presumes that any continued use is permissive until the user
communicates to the owner in a clear and unqualified disclaimer and
repudiation of that permission. Using another's property with a secret
adverse intent does not support a prescriptive easement. It does not
provide the notice that would allow the owner the opportunity to take
On the other hand an owner cannot stop an adverse use merely by giving
permission. To the adverse user, who believes there is a right to use,
that would be as if someone tells you that you may live in your house.
The adverse user, believing there is a right, is using it because of the
right, not because of the permission.
For Five Years The claimant must use the easement, with
hostile and adverse intent, for five years. A lesser period will not
support a claim of prescriptive right. At common law the period was much
longer. It derives from the belief that one should be vigilant in
defending property rights. One should not be permitted to ignore a
situation until the other party relies on that and then suddenly take
Continuous, Not Sporadic Only continuous use of the
claimed easement will support a claim of prescriptive right. However,
usage from time to time only when there is a need for the use is not
necessarily sporadic use, such use may be continuous for the purposes of
prescriptive easement. Continuous use also refers to the same nature and
location of the easement. Use of an easement will be deemed continuous
when the use is compatible with the ordinary needs of the dominant estate.
Sufficient To Put The Owner On Notice The purpose of
the element requiring actual or constructive notice is to insure that the
owner of the estate has a fair opportunity to become aware of the
potential claim and to take necessary action to prevent the use from
ripening into a prescriptive easement. In theory all that needs to be
shown is that the use was so obvious that a reasonably diligent owner
should have been aware of the use and that the use was without permission.
The use must be sufficiently visible, open and notorious as to impart
actual or constructive notice of the use to the owner of the estate. Acts
done within sight of the owner support a conclusion that the owner has
Balancing of hardships, lack of reasonable alternative to claimed
At least one court considered the balancing of the hardships of the
parties in determining the existence of a prescriptive sewer easement.
The court also considered other equitable factors such as whether the
owner of the overlying land had made an adequate investigation before
purchasing the property. Similarly another court considered as one factor
of proof that the claimed road was the only access for several parcels.
That the claimant has another, similar easement, does not prevent
Illustrations of Prescriptive Easement Situations (1) You
purchase a piece of property. The seller tells you that you can use a
certain road across a neighbors property. You begin using it. Nothing
ever comes to your attention that suggest you don't have a right to use
it. You maintain the road and put up a gate. Ten years later the
neighbor wants to develop the adjoining property. The neighbor tells you
that you may no longer use the road.
(2) You need to use a certain road across a neighbor's property.
You pay your neighbor a token amount in exchange for a deed granting you
an easement. You begin using the easement. Ten years later your neighbor
sells and a new neighbor moves in. Two years later the new neighbor
starts to tear out the road and build a storage shed where the road was.
You run to your strong box to prove you have a right to use the road. To
your horror you discover that the deed was not properly signed.
There must be a relationship of grantor and grantee between the owners
of the dominant and servient tenements and as a result of that conveyance
one parcel must be completely landlocked.
Strict Necessity There cannot be any other possible means of
access to the property alleges to be landlocked. "That the way over his
own land is too steep or too narrow, or that other and like difficulties
exist, does not alter the case, and it only where there is no way through
his own land that a grantee can claim a right over that of his grantor.
It also must appear that the grantee has no other way."
An easement by necessity can never ripen into a prescriptive easement
because usage during the period of necessity is by right appurtenant to
the title of the dominant tenement, not under a mere claim of right.
Lack of use does not defeat the etablishment of an easement by necessity.
The way of necessity exists so long as the necessity exists.
Transfer of the dominent estate When the owner of land
conveys the land without mentioning any appurtenant easement the land is
nonetheless conveyed with any appurtenant easements.
By statute an easement continues until it is extinguished by (1)
merger, (2) destruction of the burdened property, (3) adverse use, or, in
the case of prescriptive easements, (4) by nonuse for the prescriptive
period. Civil Code § 811. Case law provides other methods of termination
such as (5) express release, (6) abandonment (an implied release), (7)
overriding priority, (8) condemnation, (9) estoppel or, in the case of
easements by necessity, (10) the end of the necessity. Extinguishment of
an easement as to one easement holder does not, necessarily, extinguish
the rights of other easement holders. Thus when a public agency formerly
abandons a street, any private easements in the same way are not affected.
Tract Development Service, Inc. v. Kepler (1988 4th) 199 Cal. App. 3d
1374, 246 Cal. Rptr. 469.
Evaluating Easement Problems The validity of the claimed rights
of one party to impose uses or restrictions on another's land depends upon
the following: (1) how those rights were created, (2) what rights are
claimed, and (3) what evidence is available to support the claim.
- Is there a writing? If there is no writing then the claimant
must establish evidence adequate to prove an easement by necessity,
implication, or prescription. If there is a writing then the following
factors must be determined:
- did the purported grantor sign the writing? What
interest did the purported grantor own in the burdened property? Did the
purported grantor have a right to grant an easement? Was the grantor
capable of conveying title? Does the document name all necessary
grantor's? did they all sign? What presumptions might apply?
- is the grantee identifiable? Is the grantee capable
of holding title? Was the grantee an exisiting corporation?
- does the document provide enough information to
identify the burdened land? Is the nature of the burden specified? does
it describe how to identify the physical location?
- Do the words used show the grantors intention to
create rights in the other party, or to transfer rights? Does the
langague show an intent to make an immediate conveyance, rather than a
future conveyance of rights?
- What evidence is there that the grantor delivered
the writing? What presumptions might apply?
- What evidence is there that the grantee accepted
- What presumptions might apply?
- Has there been use of the easement?
- If the writing is not a direct grant of rights it may nonetheless be
important in determining intent or whether there are any rights in the
public. For example a petition to create a public road evidences an
intent to convey to the public rights in the road. It becomes a public
road if the governing body acceptws. But it may also create rights in the
public if the public accepts through use.
- Was the easement ever used? How much use? Who used it? Easements
by implication and prescription require a showing of actual use of the
- What is the chain of title of the burdened land? What is the chain
of title of the benefitted land? Easements by necessity and implication
can arise only between lands once held in common ownership. What was the
extent of the lands of the common grantor at the time the benefitted land
- Who is the holder of the benefit? Easements by necessity and
implication are appurtenant easements associated only with the ownership
of identifiable parcels of land. Both prescriptive and express written
easements are presumed to be appurtenant to identifiable land but either
can be held by a person independent of ownership in land (in gross).
- What is the extent of any benefitted lands? If land (or more
accurately the current owner of the benefitted land) is the holder of the
benefit what is the extent of the benefitted land. Can it be determined
what land the grantee owned that may reasonably have benefitted from the
easement? Is the land specifically described?
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