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Legal Memorandum: Termination or Modification of Easements

Issue: Does California law allow terminating or modifying an easement if the burden of the easement has increased?

Area of Law: Litigation & Procedure, Real Estate Law
Keywords: Easement; Termination or modification; Severe burden upon the servient tenement
Jurisdiction: California
Cited Cases: 181 Cal. App. 3d 867; 84 P. 191; 198 Cal. App. 2d 684; 35 Cal. 2d 5; 245 Cal. Rptr. 94; 39 Cal. Rptr. 298; 54 P. 69; 4 Cal. Rptr. 443; 43 Cal. Rptr. 2d 810; 37 Cal. App. 4; 51 Cal. 3d 845; 215 P.2d 729; 18 Cal. Rptr. 123; 162 Cal. 633; 189 Cal. Rptr. 94; 148 Cal. 723; 226 Cal. Rptr. 698; 52 Cal. App. 4; 139 Cal. App. 3d 856; 180 Cal. App. 2d 149; 108 P.2d 425; 121 Cal. 662
Cited Statutes: Cal. Civ. Code § 803, § 806, § 1104; Restatement of Property § 484
Date: 05/01/2005

There is substantial California law regarding easements.  “It is axiomatic . . . that an easement conveys rights in or over the land of another.  ‘An easement involves primarily the privilege of doing a certain act on, or to the detriment of, another’s property.'”  Camp Meeker Water Sys., Inc. v. Pub. Utils. Comm’n, 51 Cal. 3d 845, 865, 799 P.2d 758, 770, 274 Cal. Rptr. 678, 690 (1990).  The land to which an easement attaches is called the “dominant” tenement, and the land upon which the servitude or burden is laid is called the “servient” tenement.  Id. at 865, 799 P.2d at 770, 274 Cal. Rptr. at 690 (quoting Cal. Civ. Code § 803).*FN1  The extent of the servitude is determined by the grant’s terms or the nature of the enjoyment by which the grant was acquired.  Id. at 866, 799 P.2d at 770, 274 Cal. Rptr. at 690 (quoting Cal. Civ. Code § 806).

In order for the court to find an implied easement, the easement must be obvious to others.  Reasons for this rule are first, to confirm the intent of the original owner to use part of his or her land for the benefit of the other part, and second, “to give notice to [the original owner’s] successors in interest that the future servient estate is burdened with the easement in favor of the future dominant estate.”  George v. Goshgarian, 139 Cal. App. 3d 856, 860, […]

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