Legal Question in Real Estate Law in California

Re: accessory use or accessory structure

First, I'm not sure what you mean by "accessory;" perhaps you mean "fixture," a term used to descibe an improvement to real property that becomes a part thereof.

Fixtures are further divided into two kinds; those that are trade fixtures and those that aren't. The practical distinction is that trade fixtures can be removed by a tenant at or before the end of a lease, while other fixtures cannot. An example of a trade fixture might be display cabinets in a store or shampoo basins in a beauty parlor. On the other hand, when a grain dealer leased a site from a railroad alongside the tracks and built a large elevator, the elevator became a fixture and the railroad became the owner at the termination of the lease.

Whether a particular improvement is a trade fixture or not depends upon the combined effect of several factors, including the express language of the lease, custom and tradition, ease with which the fixture can be removed, and amount of permanent damage done by its removal.

The law about removal or non-removal of fixtures in the context of leases is quite well established. However, it doesn't appear to apply to the relation between the benefitted property and the burdened property in an easement situation.

I consider myself something of an expert on the subject of easements, and I didn't know the answer. After a couple hours of research on this interesting question (and I hope I understand the question correctly!!!), I still don't have a completely reliable answer for you.

Here's what I do know: There are no California appellate cases on the issue. There is one U.S. Supreme Court case, not based on California law, but probably applicable here, that says fixtures on an easement do not become part of the realty and may be removed by the easement holder at or before the termination of the easement (Wiggins Ferry Co. v. Ohio & Mississippi Railroad Co. (1892) 142 U.S. 396). There are also several California cases holding that fixtures placed on realty pursuant to a license may be removed.

So, I would say that water tanks and associated pipes, pumps, etc. placed on an easement in gross can be removed by the easement holder before or at the termination of the easement.

This is partly because they resemble trade fixtures and partly because an easement, unlike a lease, is not a freehold interest in land. The reasoning from that point is complex - see the Wiggins case - but I think you're OK.

Again, this assumes by "accessory" you mean "fixtures." Further, the deed or contract creating the easement could impose a different result by its express terms.