{"id":1488,"date":"2013-01-23T08:01:13","date_gmt":"2013-01-23T16:01:13","guid":{"rendered":"https:\/\/bullivant.wpengine.com\/?p=1488"},"modified":"2021-07-26T16:02:21","modified_gmt":"2021-07-26T23:02:21","slug":"use-it-or-lose-it-principle-does-not-result-in-partial-extinguishment-of-easement","status":"publish","type":"post","link":"https:\/\/studioactiv8.com\/bullivant\/use-it-or-lose-it-principle-does-not-result-in-partial-extinguishment-of-easement\/","title":{"rendered":"&#8220;Use it or lose it&#8221; principle does not result in partial extinguishment of easement."},"content":{"rendered":"<div class=\"wpb-content-wrapper\">[vc_row][vc_column][vc_column_text]An easement is the right to use the land of another. An easement can be acquired by adverse use of another&#8217;s property or by a grant deed, i.e., when a property owner conveys an easement to another by a deed. Once an easement exists, it cannot be extinguished simply because the owner of the easement does not require, or will not require in the future, use of the entire easement.<\/p>\n<p>The California Court of Appeal, in\u00a0<i>Cottonwood Duplexes v. Barlow<\/i><i>\u00a0<\/i>(2012) 149 Cal. Rptr. 3d 235, held the trial court had no legal ground to extinguish any portion of a deeded easement simply because the owner of the easement did not need, or would not need in the future, the entire easement.<\/p>\n<p>In\u00a0<i>Cottonwood,\u00a0<\/i>plaintiff Cottonwood&#8217;s predecessor granted defendant Barlow a 60-foot roadway and utility easement over his property. After Cottonwood purchased the property, it filed a quiet title action against Barlow asking the court to extinguish all, or in the alternative, a significant portion of the easement, because after the easement was granted, the property was subdivided and Barlow no longer needed the entire 60-foot roadway and utility easement. The trial court agreed with Cottonwood and extinguished a portion of the easement, significantly reducing the size of the easement, on the ground Barlow no longer needed the entire easement.<\/p>\n<p>The Court of Appeal reversed the trial court&#8217;s decision, holding there was no legal basis for the trial court to partially extinguish a valid, deeded easement. The Court of Appeal held the trial court had no authority to partially extinguish the easement just because, in the court&#8217;s view, the owner of the easement did not appear to need the entire easement, either at that time or in the future.<\/p>\n<p>The Court of Appeal made it clear that an otherwise valid, deeded easement cannot be extinguished absent proof: (1) the easement is no longer being used; (2) the owner has indicated an intent to abandon the easement; and (3) the easement is causing damage to the property on which it is located.[\/vc_column_text][\/vc_column][\/vc_row]\n<\/div>","protected":false},"excerpt":{"rendered":"<p>[vc_row][vc_column][vc_column_text]An easement is the right to use the land of another. An easement can be acquired by adverse use of another&#8217;s property or by a grant deed, i.e., when a property owner conveys an easement to another by a deed. Once an easement exists, it cannot be extinguished simply because the owner of the easement&hellip;<\/p>\n","protected":false},"author":32,"featured_media":829,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"nf_dc_page":"","footnotes":""},"categories":[154],"tags":[198],"post_series":[],"class_list":["post-1488","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-real-estate-land-use","tag-insights","authorormentioned-ronald-richman","entry","has-media"],"_links":{"self":[{"href":"https:\/\/studioactiv8.com\/bullivant\/wp-json\/wp\/v2\/posts\/1488","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/studioactiv8.com\/bullivant\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/studioactiv8.com\/bullivant\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/studioactiv8.com\/bullivant\/wp-json\/wp\/v2\/users\/32"}],"replies":[{"embeddable":true,"href":"https:\/\/studioactiv8.com\/bullivant\/wp-json\/wp\/v2\/comments?post=1488"}],"version-history":[{"count":0,"href":"https:\/\/studioactiv8.com\/bullivant\/wp-json\/wp\/v2\/posts\/1488\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/studioactiv8.com\/bullivant\/wp-json\/wp\/v2\/media\/829"}],"wp:attachment":[{"href":"https:\/\/studioactiv8.com\/bullivant\/wp-json\/wp\/v2\/media?parent=1488"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/studioactiv8.com\/bullivant\/wp-json\/wp\/v2\/categories?post=1488"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/studioactiv8.com\/bullivant\/wp-json\/wp\/v2\/tags?post=1488"},{"taxonomy":"post_series","embeddable":true,"href":"https:\/\/studioactiv8.com\/bullivant\/wp-json\/wp\/v2\/post_series?post=1488"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}