Whether you know it or not, the roads traveling through your subdivision are likely easements created for the purpose of providing ingress/egress access to public streets. And whether you know it or not, those easements may also benefit neighboring properties, giving them access through your subdivision to a point of entry on a public road.
That’s all well and fine, but what happens when the land situated adjacent to your own is developed in a way that will greatly increase the amount of traffic on the shared roads? For example, that farm land behind your house is now going to be subdivided into a community with 200 single family homes. And of course, along with each new house typically comes two cars, not to mention all the heavy construction machinery that will be used as the homes are being built. Is there anything you can do to stop the potential of increased traffic on the shared road?
First, a few basics: An easement provides a non-owner the right to use the land of another. It’s often described as a nonpossessory interest. There are generally two types of easements: easement in gross and easement appurtenant. In this scenario, we are discussing an easement appurtenant because it benefits a particular piece of land (in contrast to benefiting a particular person). Appurtenant easements are automatically conveyed with the land they benefit when the land is sold or otherwise transferred. Land affected or “burdened” by an easement is called a “servient estate,” while the land benefited by the easement is known as the “dominant estate” or “easement holder.”
As a general rule, the easement holder cannot expand the easement beyond what was contemplated at the time it was granted. Conversely, the owner of the servient land may make any use of that land that does not unduly interfere with the easement holder’s use of the easement. What constitutes an undue burden depends upon the facts of each individual situation. On the one hand, an increase in pedestrian traffic over a pathway that gives access to the beach may not necessarily constitute an undue burden. The path was always intended to provide access and the fact that more people are now using it is not outside the scope of what was originally contemplated.
The key then is to look at what the parties intended when the easement was created. Of course, that’s not always clear, but there is certainly an argument that an intention to provide ingress/egress access for the owner of agricultural land is much different than a roadway intended for a large neighboring subdivision. It’s not about the increase in the number of cars using the road, it’s about the fact that the parties never envisioned the road to be used for those purposes. If you find yourself in such a scenario then you should seek legal counsel to obtain an injunction to prevent that increased usage.
