CACI 4902 Interference With Secondary Easement

California Civil Jury Instructions CACI

4902 Interference With Secondary Easement

[Name of plaintiff] has an easement on the land of [name of defendant] for the purpose of [specify, e.g., providing ingress and egress to the public highway]. A person with an easement and the owner of land on which the easement lies each have a duty not to unreasonably interfere with the rights of the other to use and enjoy their respective rights. Neither party can conduct activities or place obstructions on the property that unreasonably interfere with the other party’s use of the property.

In this case, [name of plaintiff] claims that [name of defendant] [specify interference, e.g., built a gate across the path of the easement]. You must determine whether [name of defendant]’s [e.g., building of a gate] unreasonably interfered with [name of plaintiff]’s use and enjoyment of the easement.

Directions for Use

Give this instruction in a claim for breach of a secondary easement. A secondary easement is the right to do the things that are necessary for the full enjoyment of the easement itself. (Dolnikov v. Ekizian (2013) 222 Cal.App.4th 419, 428 [165 Cal.Rptr.3d 658].)

This instruction is structured for an easement holder’s claim against the property owner. A different instruction will be required if the owner is bringing a claim against the easement holder for interference with the owner’s property rights.

Sources and Authority

“A secondary easement can be the right to make ‘repairs, renewals and replacements on the property that is servient to the easement’ ‘and to do such things as are necessary to the exercise of the right’. … A right-of-way to pass over the land of another carries with it ‘the implied right … to make such changes in the surface of the land as are necessary to make it available for travel in a convenient manner.’ ” (Dolnikov, supra, 222 Cal.App.4th at p. 428, internal citations omitted.)

“Incidental or secondary easement rights are limited by a rule of reason. ‘The rights and duties between the owner of an easement and the owner of the servient tenement … are correlative. Each is required to respect the rights of the other. Neither party can conduct activities or place obstructions on the property that unreasonably interfere with the other party’s use of the property. In this respect, there are no absolute rules of conduct. The responsibility of each party to the other and the “reasonableness” of use of the property depends on the nature of the easement, its method of creation, and the facts and circumstances surrounding the transaction.’ ” (Dolnikov, supra, 222 Cal.App.4th at pp. 428–429.)

“A servient tenement owner … is ‘ “entitled to make all uses of the land that are not prohibited by the servitude and that do not interfere unreasonably with the uses authorized by the easement … .” [Citation.] “[T]he servient owner may use his property in any manner not inconsistent with the easement so long as it does not unreasonably impede the dominant tenant in his rights.” [Citation.] “Actions that make it more difficult to use an easement, that interfere with the ability to maintain and repair improvements built for its enjoyment, or that increase the risks attendant on exercise of rights created by the easement are prohibited … unless justified by needs of the servient estate. In determining whether the holder of the servient estate has unreasonably interfered with exercise of an easement, 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 … and subject to any different conclusion based on the intent or expectations of the parties … .” ’ ” (Inzana v. Turlock Irrigation Dist. Bd. of Directors (2019) 35 Cal.App.5th 429, 445 [247 Cal.Rptr.3d 427], original italics.)

“Whether a particular use of the land by the servient owner, or by someone acting with his authorization, is an unreasonable interference is a question of fact for the jury.” (Pasadena v. California-Michigan Land & Water Co. (1941) 17 Cal.2d 576, 579 [110 P.2d 983].)

Secondary Sources

12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 422, 424, 429
10 California Real Estate Law and Practice, Ch. 343, Easements, § 343.16 (Matthew Bender)
2 California Forms of Pleading and Practice, Ch. 13, Adverse Possession, § 13.13 (Matthew Bender)
20 California Forms of Pleading and Practice, Ch. 240, Easements, § 240.15 (Matthew Bender)