The existence of an easement on a parcel of real property is a title issue that should be carefully evaluated in the purchase of the property, and some general rules should be considered before the purchase.
Initially, the preliminary title report should be carefully reviewed to determine the nature and scope of easements.
The dominent tenement is the parcel of land that benefits from the easement, and the servient tenement is the parcel that is burdened by the easement and is typically where the easement is located.
The method of creation determines the extent of an easement's use. (Civil Code § 806.)
Civil Code § 806 provides: The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it is acquired.
The extent to which an expressly created easement can be used by its owner is determined by the terms of the instrument of its creation. The recipient of an easement has the burden of proving what rights of use are attendant to the easement.
Generally, a grantee of an easement receives only those rights of use expressly conveyed, and any additional rights that are necessary and reasonable for enjoyment of the easement incidental to the grant, and consistent with its purpose.
When the instrument of conveyance grants an easement in general terms, without specifying or limiting the extent of its use, the permissible use is determined in the first instance by the intention of the parties and the purpose of the grant.
Once the easement has been used for a reasonable time, the extent of its use is established by the past use. Thereafter, an owner cannot make changes in its use that would substantially modify or increase the burden of the servient tenement.
Once an easement has been created both parties have the right to insist that so long as the easement is enjoyed it shall remain substantially the same as it was at the time the right accrued, regardless of the question as to the relative benefit and damage that would ensue to the parties by reason of a change in the mode and manner of its enjoyment.
The owner of the easement can make minor changes in the use of the easement so long as there is no material or substantial increase in the burden on the servient tenement.
Once the extent of an easement's use has been established, the easement owner cannot subsequently enlarge its character so as to materially increase the burden on the servient tenement. An easement acquired for a specific purpose generally cannot be used for a different purpose.
An unreasonable increase of the burden may ripen into a prescriptive right, and until then it is a nuisance that can be enjoined by the owner of the servient tenement.
When a party already has an easement, the use of the easement may be enlarged by prescription if the excessive use is of a nature and duration sufficient to put the owner of the servient tenement on notice of the greater rights claimed by the user.
The owner of an easement cannot change or increase the use of the easement in any manner that imposes a new or greater burden on the servient tenement without the consent of the servient owner. An unreasonable increase in the burden on the servient tenement resulting from an increase or change in the sue of an easement is called a "surcharge".
The extent to which the use of an easement can be altered, and the question whether the use is excessive and amounts to a surcharge on the servient tenement, are issues of fact in each case.
A person other than the owner of the servient tenement, and possibly a person holding a lien on the servient tenement, cannot challenge the existence or use of an easement over the land of another.
An easement may be unenforceable when its use is illegal, such as a commercial use in a residential zone in violation of the zoning laws. The owner of the easement may not enforce the illegal use, and it may be enjoined as a nuisance.
When considering the rights of the parties relating to an easement, the rights and duties of each party are relative to the rights and duties of the other party. The rights of the owner of the easement are restrictive, and the rights of the owner of the servient tenement are residual, but both must act reasonably toward the other.
As a general rule, the owner of the dominent tenement must use the easement in a manner that imposes the least burden on the servient tenement. Every incident of ownership that is not inconsistent with the use and enjoyment of the easement is reserved to the owner of the servient estate.
The issue of whether a change in the use of an easement is excessive and a surcharge on the servient tenement is a question of fact in each case that requires a determination as to whether the alteration will cause an unreasonable increase in the burden of the servient tenement.
LESSONS:
1. An easement can have significant impact on both the dominent tenement (may increase its value or access) and the servient tenement (may decrease its value or restrict the use of the property).
2. Both the owners of the dominent tenement and servient tenement should evaluate the use and extent of the easement, and carefully monitor its use over time to determine if the use is being increased so as to create a surcharge on the servient tenement.
3. If the servient tenement determines that there has been a surcharge in the use of the easement, the owner of the servient tenement may file a legal action for nuisance and seek to enjoin the increased use in the easement.
4. The use of the easement may be enlarged by prescription if the excessive use is of a nature and duration sufficient to put the owner of the servient tenement on notice of the greater rights claimed by the user.
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