In Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, the Court of Appeal held that the owner of the dominant tenement accessed by a 52-foot wide express ingress, egress and utilities easement did not have the right to use every portion of the easement area on the servient tenement to the exclusion of the servient owner. Rather, the owner of the servient tenement could make reasonable use of a portion of the easement area as long as its use of the easement area did not unreasonably interfere with the right of ingress and egress of the owner of the dominant tenement. In Scruby, the dominant tenement owner was only using a 15-foot wide road across the easement area to access the dominant tenement. The Scruby court specifically held that the owner of the servient tenement did not have to remove improvements it had placed in the easement area (grape vines it had planted and water tanks) as these improvements did not unreasonably interfere with the dominant tenement owner’s access to their real property across their 15-foot wide road.
In Cottonwood Duplexes, LLC v. Barlow (2012) 210 Cal.App.4th 1501, the plaintiff servient tenement owner unsuccessfully sought to extend the holding of Scruby to partially extinguish an access and utilities easement. The trial court, based on an extension of Scruby, had ordered a reduction in the width and length of an express road easement across the servient tenement and extinguished the utilities easement altogether because the trial court felt that: 1) the reasonable use requirements of the dominant tenement no longer required the size and scope of the originally granted road and utilities easement, and 2) changed circumstances with respect to the development of the servient tenement and nearby properties since the original granting of the easement. The “changed circumstances” the servient owner claimed should result in the partial extinguishment of the easement were that the servient owner had altered his plans for development of the servient tenement, replotted the lots in the subdivision, and proposed a different route of access that would render it unlikely that the dominant tenement ever would use the portion of the easement right of way that the servient owner proposed to extinguish.
The Court of Appeal in Cottonwood reversed the trial court’s decision, holding that Scruby could not be logically extended to sanction extinguishment of an express easement, either in whole or in part, just because, in the trial court’s view, the owner of the easement does not appear to need all of the rights set forth in the easement, either now, or in the future. The Court found no California case supporting the premise that an owner of a servient tenement, by making a part of a granted easement unusable for all practical purposes, can judicially compel the extinguishment of a part or all of the easement against the will of the owner of the dominant tenement.
In the Cottonwood decision, the Court of Appeal noted that Scruby only dealt with the scope of the use of an express easement, not the partial extinguishment of an easement. Therefore, Scruby was not authority for an argument seeking to extinguish an easement. The Court pointed out the long existing principle in California that an express easement cannot be lost by the holder of the easement by a mere lack of use. In order to extinguish an easement, the court must find three things: 1) non-use of the easement; 2) an intention by the holder to abandon the easement; and 3) damage to the owner of the servient tenement caused by their reliance on the believed abandonment if the Court does not extinguish the easement. (Smith v. Worn (1892) 93 Cal. 206, 212.) The evidence in this case was clear that the holder of the easement had never intended to abandon his easement no matter how unlikely that the holder might use it or need it in the future.
In the Court of Appeal’s view, the owner of the servient tenement, who was the party who made the dominant tenement owner’s easement unusable, should not profit by the partial or total extinguishment of the express easement because of its own conduct. By subdividing the servient tenement in such a way that it needed to extinguish the dominant tenement owner’s easement in order to have developable lots, the servient tenement owner created the very risk that came to pass in this case, that the dominant tenement owner would not agree to a buy out of the easement and would object to the extinguishment of the easement. This risk was properly borne by the party who created the risk (the owner of the servient tenement), not the innocent owner of the dominant tenement, and is not overcome by the legal preference under California law to promote the productive use of land. The Court also found that evidence offered by the owner of the servient tenement that the County would not likely approve a road across the easement area in the future did not make the easement void for illegality. Accordingly, the Court of Appeal reversed the decision of the trial court and ordered judgment entered in favor of the holder of the recorded road and utilities easement.
This case teaches that non-use of an express access and utilities easement and evidence the easement likely will not be used in the future is not sufficient for a court to reduce or restrict the size or scope of the easement, or to extinguish the easement altogether. In order to do so, the servient owner must produce evidence of an intent by the holder of the easement to abandon the easement and damages to the owner of the servient tenement based upon reliance on the abandonment of the easement.