Legal Question in Real Estate Law in California

Madera County, California

I recently purchased a home with a few acres in Madera county, the property has an easement on it to allow the folks on the propery behind it access to their home. The wording on the easement is as follows... "a right of way and easement for road purposes over and across the west 60 feet'' of my lot.

Their long established road is single lane, gravel half the way, then paved on the back steeper portion. It is about 10 feet wide, about 15 feet from the property boundry.

I want to fence, and my question is this. Do I have to keep my fence out of the 60ft area completely, or am I relatively safe to fence along the existing roadway leaving plenty of room for the rare event that two cars may meet and need to pass on their little road?

I guess what I am looking for is the legal position based on the verbage. Do they just have a right to a road across the west 60' of my property, or do they have the right to a 60' wide road across? Or is it a combination of both determined by their actual (reasonable) need.

Thanks for reading...


Asked on 6/16/10, 4:30 pm

3 Answers from Attorneys

Michael Stone Law Offices of Michael B. Stone Toll Free 1-855-USE-MIKE

You have one of three options. You can build your fence without prior notice to the neighbors, thereby offending them. This course of action may or may not be legal; the only certainty is that it will enrich at least two lawyers in your town. Second, you could obtain written permission (a license) to construct the fence and maintain it at your expense, or at shared expense, and to use the 30 feet of land, for X number of years. Third, you could buy 30 feet of the easement from your neighbor, and have a revised easement recorded.

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Answered on 6/16/10, 8:24 pm

If that is all there is to the legal description it is unfortunately vague. It might be able to be interpreted for certain by reference to the parcel maps, but in the abstract, I can't give you a reliable answer.

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Answered on 6/16/10, 8:44 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

The description doesn't seem "unfortunately vague" to me. Also, it may be supported by a map, but in any case it is adequate to describe the easment.

I agree with Mr. Stone about negotiating before fencing.

If push comes to shove, however, I think you would prevail, on the strength of the principles discussed by the Court of Appeal in Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697. Find the case at your county law library and give it a read. I think it supports your plan to fence the unused portion of the easement so long as it doesn't interfere with the intended purposes.

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Answered on 6/16/10, 10:19 pm


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