Courts Are Without Power To Terminate Express Easements Based Upon Finding Them “Unnecessary”— Cottonwood Reins In Scruby


In November 2012, the Third District Court of Appeal decided that a trial court does not have the power to extinguish an expressly granted easement merely because in that judge’s opinion the dominant tenement does not really need the easement. Given that a deed, including a deed granting or reserving an easement, is a contract, and that courts may not rewrite deeds or other contracts in the guise of “interpreting” them, the result in Cottonwood Duplexes, LLC v. Barlow should be unremarkable. What is remarkable is the fact that the plaintiff in that case, and the trial judge, believed that it was within the court’s equity power to declare an outright termination of an expressly-granted easement based exclusively on the argument that the easement was no longer “necessary.”

This article takes the position that the Cottonwood decision was entirely correct; but argues that although Cottonwood may have begun the process of clarifying the law governing partial obstruction of access easements, more work needs to be done to remedy the uncertainty and unpredictability that was inserted into California easement law by another Court of Appeal decision nearly two decades ago.

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