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Reasonable Interference With An Easement

 

McBride v Smith (2018) 18 CA5th 1160

Easement Holder and her predecessors had allegedly used a roadway, which was at least partially covered by a recorded right-of-way, for full ingress and egress and for emergency purposes. The easement, however, was limited to “emergency or secondary ingress and egress.” 18 CA5th at 1164. The adjoining, underlying landowner (Smith) allegedly “erected permanent fixtures” in the roadway that impeded Easement Holder’s use of the roadway and blocked access to her own property. 18 CA5th at 1168. Easement Holder brought a complaint for

·       Trespass;

·       Forcible detainer, by “physically prohibiting [Easement Holder] from using and occupying her land”;

·       Prescriptive easement; and

·       Nuisance.

18 CA5th at 1165. The trial court granted Smith’s demurrer and Easement Holder appealed. The court of appeal affirmed, finding that the complaint stated a valid claim for nuisance and prescriptive easement.

Easement Holder stated a valid factual claim against Smith for nuisance, which is defined as “an interference with the interest in the private use and enjoyment of the land.” 18 CA5th at 1178. Fortunately for Easement Holder, a nuisance claim does not require interference with property possession, which she did not legally have. But at trial, Easement Holder would have to establish that Smith’s conduct in blocking the easement unreasonably interfered with the free use and enjoyment of her own property.

Construing Easement Holder’s pleadings liberally, she stated a valid cause of action against Smith to quiet title to a prescriptive easement over the disputed roadway. Easement Holder stated important facts by alleging

·       Smith had erected a chain and pole to impede her use of the roadway;

·       Easement Holder had used the roadway for over 5 years, for primary access to her property, which exceeded the “emergency or secondary ingress and egress” authorized by the recorded grant of easement (18 CA5th at 1164); and

·       Easement Holder had openly used the easement on a daily basis, again exceeding the use authorized in the recorded easement.

The court of appeal reversed dismissal of Easement Holder’s claims for nuisance and prescriptive easement.

THE EDITOR’S TAKE: An easement holder will lose her claim for interference with it if a court determines that the interference she suffered was not unreasonable. That is a consequence of an easement’s being merely a nonpossessory interest in land; only possessory interests carry an entitlement to exclusivity with them (which entitles their holders to complain about even the most insubstantial kinds of interference, as long as they interfere with exclusiveness). On the other hand, since “usufructuary” or “incorporeal” interests (sorry for the pedantry) are nonpossessory, an interference with them is not per se actionable, but must be shown to have been unreasonable in order to be treated as actionable.

As a result of these distinctions, neither a servient tenant (the landowner subject to an easement) nor an outsider is liable to an easement holder when the rival activities, even if in the same location, do not unreasonably interfere with the easement holder’s usage; the interfering activity has to be tortious rather than merely trespassory. (Ironically, a servient owner—being a possessor—can go after a trespassing outsider without having to show more than mere interference. No wonder law students get confused! My recent column on Vieira Enters. v McCoy (2017) 8 CA5th 1057, reported at 40 CEB RPLR 61 (May 2017), a case discussed in McBride, may help, if this issue confuses you. See Bernhardt, Hostility and Notice in Prescription Cases, 40 CEB RPLR 59 (May 2017), also available on my website, RogerBernhardt.com.)

Nuisance, like interference with easements (and unlike trespass), also requires unreasonableness, given that it is defined as an unreasonable interference with another’s enjoyment of land. See, e.g., Redevelopment Agency v BNSF Ry. Co. (9th Cir 2011) 643 F3d 668, reported at 34 CEB RPLR 166 (Sept. 2011).

Roger Bernhardt

41 Real Property Law Reporter 38 (Cal CEB May 2018), © The Regents of the University of California, reprinted with permission of CEB.