CACI No. 4902. Interference With Secondary Easement

Judicial Council of California Civil Jury Instructions (2023 edition)

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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.
New November 2019
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 holders 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 owners 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.
“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 diffıcult 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,
10 California Real Estate Law and Practice, Ch. 343, Easements, § 343.16 (Matthew
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)
4903-4909. Reserved for Future Use

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