Legal Question in Real Estate Law in California

I think that answering this properly must start with a clarification of the roles of the parties in an easement. There are at least two, and the distinction between them is as follows:

1) First, there is the holder of the easement, also described as the dominant tenement, the dominant estate, the easement owner, the benefitted party, and like terms. The holder is sometimes an adjoining property, in which case we have an "easement appurtenant," or the benefitted party's other real estate may be miles away, as in the case of a utility company's easement for power lines or phone wires, and that is called an "easement in gross" and don't ask me to explain why!

2) Second, we have the land which the easement lies upon, called variously the servient tenement. servient estate, owner of the property the easment lies upon, the burdened party or property, etc.

I cannot tell from the question whether you are in category #2 or whether the easement is on someone else's property and just happens to border your land which is unaffected, or whether the easement lies (at least in part) on your land, so that your land is the servient estate. One way or another, an easement is NOT "free standing." Easements are always a burden on someone's land. Also, if the owner of the easement becomes the owner of the land upon which the easement sits, the easement ceases to exist. One cannot have an easement in one's own land. When the dominant tenement and the servient tenement have the same owner, the easement passes into history, although of course it can be re-created if and when the parcels agaim are in separate ownership.

Easements usually "run with the land," so that a sale of the servient tenement passes the burden on to the new owner, and a sale of the dominant tenement vests its new owner with the same rights as the seller had.

The owner of the servient tenement - the guy who has the easement on his property - cannot place any unreasonable restrictions on the use of the easement by the owner of the dominant tenement - the easement holder. This includes putting in locked gates, building a reservoir over it, or a house, or charging tolls. Reasonable and relatively slight hinderances to use may be OK, as for example if the owner of the servient estate wants to graze cattle on his land, he may be allowed to install gates, so long as the easement owner is given keys to any locks. What is reasonable and what is not is a frequent source of litigation between servient and dominant estates.

Specifically, an easement by necessity is not very different than easements created by an express agreement. The use by the owner of the easement cannot unreasonably be restricted by the owner of the servient estate. An easement by necessity, like most other easements, cannot be overburdened by the easement owner - he could not, for example, widen it and pave it and then sent ten times as much traffic over it. One difference with an easement by necessity is that it might be lost if the necessity ceases to exist, e.g., alternate access were provided by construction of a new (and lawful) access route.

The user or users of an easement of any kind generally have the right and the duty to perform maintenance at their expense.

So, I would say that the owner of the servient estate cannot charge user fees or tolls as a matter of law, but that users will have to bear a pro-rata share of maintenance based on relative amount and severity of their use of the easement.

An easement by necessity is usually in favor of one, or a limited number of, parcels that would otherwise be landlocked. It is generally not for general public access, because there is no necessity there. Random public users who are not guests or invitees of the dominant tenement(s) are probably trespassers and have neither rights nor obligations under easement law.

Attorney Whipple provides a nice summary of the law. As he points out, a lot of the result in easement cases depends on the specific facts. One fact that I would mention is whether the court order or judgment was ever recorded against the servient or burdened properties -- and in the chain of title for the benefited properties?

Lot's of interesting legal education in the previous answers. To answer your direct question directly, however, the owner of the servient tenement (the property over which the easement passes) cannot charge anything for use or maintenance of the easment. That person, however, also has absolutely no duty to maintain or repair anything. They only have a duty not to interfere with use of the easement. The obligation and cost of maintenance and repair is entirely on the benefited person or people, called the owner(s) of the dominant tenement.