Legal Question in Real Estate Law in California

Re: Utility easement - What are the options?

An easement obtained by prescription is an easement for the uses that caused it in the first place. In the words of a leading treatise on easements (Bruce & Ely):

"The scope of a prescriptive easement is determined by the adverse usage through which it was acquired. The easement holder may continue such use, but he cannot enlarge it to encompass new activities...[citations to California Civil Code 806 and Connolly v. McDermott (1984) 162 Cal.App.3d 973 at 977]... Although courts permit some flexibility is use, they seek to avoid further burden on the servient estate and scrutinize changed usage carefully. In general, courts construe prescriptive easements more narrowly than express servitudes.... nonetheless, courts have recognized that the degree of use of a prescriptive easement may change over time to satisfy new needs..... There is also authority that prescriptive easements acquired by the public or municipalities should not be construed as strictly as private easements. Numerous authorities hold that the scope of public prescriptive easements is broad enough to include reasonably forseeable public uses."

I would say that the "degree of use" comment implies that the water company could run more water through the pipe, but not install meters.

The issue with meters being an overburden would arise primarily from the fact that a meter needs to be read, thus there would be meter readers on your property; also, it affects your use of the surface, whereas with a buried pipe you can go for decades without even knowing it's there.

The water supplier may have the power of eminent domain so that it could condemn an easement through a court proceeding, but the odds that it would do this are slim due to the time and expense.

You can't, however, get the existing line moved off your property - it's a valid prescriptive easement.

Re: Utility easement - What are the options?

When you looked at your deed, you were looking for an express easement. You have also mentioned that you have considered the creation of this easement by prescription. There are other ways that easements can be created.

In the case of a water line that is not mentioned in the deed, it is possible that this is covred by an implied easement, that arose when your lot and the other lot were one parcel. An implied easement will be created if, prior to the subdivision, the use exists on the servient part necessary for the enjoymnet of the dominant part (your neighbor's property). I am aware of authority from a jurisdiction outside the State of California that has applied this principle to a sewer line cutting across someone's yard.

One of the issues that I have in analyzing your two choices is whether the roadway easement is for the same neighbor, and what is the exact language of the express easement? Without looking at more, option 2 sounds the best, because you are not placing a meter in someone else's easement.

Very truly yours,

Re: Utility easement - What are the options?

Generally, an express easement holder cannot overburden or abuse the scope of the express easement. In the case of a prescriptive easement or an easement by implication that same rule applies. I believe you have more bargaining power than you think.