Neighbor Wants to Fence Easement, Driveway Overextends Allotted Easement

[quail]

My question involves an easement in the state of: California

My neighbor is suing us for the right to put a fence and gate around his driveway/easement (on our property, and partly on another neighbors property). He is claiming that the easement is dangerous to him because deer frequent the easement, and his attorney is citing a case where a judge ruled that the property owners had to erect a guard rail to address a (true) safety issue.

He really is just trying to claim more property and have a more grand, gated, entrance to his house. Note, this gate would be right in front of my bedroom window. And we do plan to use the land to drive on after we remodel our house.

I can't understand how something so frivolous could cost me so much money(we have just hired an attorney)

Issue #1: This seems to meet the definition of 'frivolous ' to me and so would this be an appropriate instance to use California ccp 128.7 to seek sanctions and make this go away before we incur significant costs? Any downsides/risks to doing this?

Issue #2: It turns out that, based on a survey, at least a third of his driveway overextends the easement onto our land. Can I just take out this portion of the driveway? I think he would still be able to get through to his house on the remaining driveway. This also means that his complaint is flawed, because they are seeking to fence the "easement line" which actually runs down the center of the driveway which I don't think he really wants.

Thank you!

[jk]

unless the easement is granted as "exclusive" use of the dominant tenant, he cannot construct a fence that would prohibit you from entering or utilizing your land in any way. Unless there is a right to construct a gate per the easement grant, he cannot install a gate without your permission or the courts order.

You can limit his use of land to the exact specifications of the easement BUT if he has used the land outside of the easement for over 5 years, he may have a valid claim for a prescriptive easement.

tell him if he doesn't drive like a race car driver, deer are not a hazard. They really don't like to get run over so unless you are driving so fast they can't get out of the way, they are not a hazard.

while it doesn't sound like he has a great chance of prevailing, I would not see his action as frivolous. Frivolous would be an action filed for the sake of filing an action and having no merit what-so-ever.

[quail]

His attorney is nice enough to say that they would give us a key to the gate. Gee thanks. The easement is not written as being exclusive. It specifically allows for "driveway, utilities, and sewer", not a fence.

It seems obvious that he will not prevail; the issue is that his behavior will cost us thousands.

This seems to be the relevant clause in 128.7 that needs to be violated for us to prevail if we file this motion:
(2) The claims, defenses, and other legal contentions therein are
warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the
establishment of new law.

How can the threat of deer(which are everywhere) constitute a nonfrivolous argument for extension of modification of law? And remember, deer are not the real issue, just the purported issue. He really wants to claim the land/establish a grand entrance to his house.

He has been using the driveway on our land for >5 years so he may have a claim to prescriptive easement. I don't really care, I just want to make this go away without costing us, and I'm looking for any leverage that I may have. It's not right that this idiot can take money out of my pocket just to protect what is mine.

[jk]

it takes a lot of nothing for a claim to be frivolous. Although I completely disagree with the claim of deer being of concern, that doesn't mean others would feel the same way.

How can the threat of deer(which are everywhere) constitute a nonfrivolous argument for extension of modification of law?

To me, it isn't something to be worried about but I have met people that have had encounters with deer that do have a sort of deer jumping on my car phobia thing going on. Not saying your neighbor does but if that is his claim, it would support his need for a fence.


so, the cheapest way out is to let him put in the fence. I'm seeing that as not where you want to go with this. Other than that, you have a disagreement on your hands that is obviously going to cost you money. From your description of the intended fence, I would stringently argue against being able to fence you off from the easement, which it appears is his intention. As it being your land, you should have access to the easement area from any point on your land. Claiming a right to fence you from your land is a serious denial of your rights to your own property.


btw; if he somehow wins this; there is nothing to make you get out of your car and close the gate once you have driven through.

In fact, since this would be an additional burden to you, if you find yourself losing, I would argue he be required to install a powered gate with remote controls for you and anybody residing at your house and a means of communication to your house so you could allow visitors through the gate without having to walk out to the gate to open it.

[yyz0]

Have you been told any details of the planned fencing? Here's a university of Vermont extension dept. that outlines fencing recommendations for deer control fencing: http://www.uvm.edu/pss/ppp/articles/deerfences.html

You can probably find something similar from a Cali. entity. If he is planning on a 4 or 5ft decorative fence then you may be able to argue that his fencing will not fulfill the needs of his argument.

just a thought, don't know if it would have any value.

[LandSurveyor]

You need to find an attorney who is able to at least equal the good advice jk has given you, and can spend the two or three minutes it takes to pry this kind of thing up on the internet:

http://latimesblogs.latimes.com/outp...with-deer.html

I'd be looking to pursue the deer thing as that is the crux of the case. Any good attorney will be looking to depose the neighbor, the Department of Fish and Game, the neighbor's insurance company, all with a view to establishing the dollar value of the neighbor's losses to deer collisions and the frequency of the collisions. Once established as zero, you can ask for a dismissal. And a good attorney will have more and far better ideas than I do.

You are correct that this will cost you money. If you roll over however, the neighbor will be back when wants an even more ostentatious entrance and wider drive.

[jk]

=LandSurveyor;486370]You need to find an attorney who is able to at least equal the good advice jk has given you

You make me blush LS.

and thanks for that link. It states I live in the state with the 3rd highest rate of deer car interactions in the country. Now I'm going to be deer phobic every time I go out.

and if it helps, the deer that cruise my 900 foot driveway are never aggressive enough to attack my car. I have had as many as 5 in a single group sauntering along together. Then are quite docile and simply run away when approached. I would find no need for a fence and unless it was at least 8 feet high, it likely wouldn't do any good anyway. I have seen a deer jump, with a lot of clearance, directly over a car. Unless your deer are much more laid back, I would suspect yours are just as capable.

and you guys in California with your 1 in 1,046 chance. geesh.

Is this guy intending on fencing his entire property? If not, a section of fence is meaningless. They can simply walk around the fence. As such, unless his property and the easement was fully enclosed, it would make this section of fence more or less useless.

[quail]

I really appreciate all the helpful suggestions. He does have the remainder of his property fenced, about 6ft high.

Also, he does claim he actually hit a deer. However, I know this is a lie because the first time he used this argument with me, he said, "I ALMOST hit a deer". Then the story got more embellished in subsequent conversations. He said he heard a thump. He smelled an odor a few days later, then called animal control. I'm sure if I call animal control they will have no record of this.

I have hired an attorney. $15,000 retainer. We're looking at the possibility of 128.7, as well as trying to convince the title company to take the case (which is unlikely, they denied on the grounds that easements are excluded under their policy).