For purposes of this article, picture the example of a common dirt road easement that cuts across one property (the servient estate) and provides access to the neighboring properties (the dominant estate holders).
Under Arizona law, following the Restatements (Third) of Property:
Servitudes, the dominant estate holder has the right to use and maintain the easement as necessary to obtain full enjoyment of the easement. Papa v. Flake, 18 Ariz.App. 496, 498, 503 P.2d 972, 974 (1972).
Such enjoyment is determined by the scope and purpose of the easement. Pinkerton v. Pritchard, 71 Ariz. 117, 125, 223 P.2d 933, 938 (1950). Thus, for the dirt road easement in the example, the dominant holders have the right to travel across the neighboring servient estate, via the dirt road, as necessary for access to and from their properties. Using the easement for any other purpose, such as for storage, is a violation of the easement and may expose the violating party to claims of trespass and nuisance. It is therefore important to understand the scope and purpose of an easement and ensure that all use of the easement stays within the permissible scope.
A dominant owner also has both a duty to repair and maintain an easement for purposes of maintaining the servient estate, as well as the right to enter upon the servient estate for purposes of any necessary repairs and maintenance to continue enjoying full use of the easement. See Papa
, 223 Ariz.App. at 498, 503 P.2d at 974. This means that if the dirt road in the example above is eroding such that it is becoming dangerous and unusable for the intended purpose of ingress and egress, the dominant estate holders may enter upon the servient estate for the necessary purpose of maintaining and repairing the dirt road.
In performing such repair and maintenance, however, the dominant owner must take care not to needlessly increase the burden on the servient estate. Id.
While there does not appear to be a hard and fast rule as to what constitutes “needlessly increasing the burden,” some potential issues in the example above include extending the dirt road or its appurtenances outside the easement boundaries, clearing vegetation outside the easement, or altering water flow. Property owners maintaining easements should be aware that in such instances, liability may arise in the form of a trespass, nuisance, or negligence claim, no matter how minor the issues may appear.
Importantly, a dominant holder may not be able to avoid potential litigation by hiring an independent contractor to perform the work. While the general rule is that an individual is not responsible for tortious conduct of an independent contractor, there are a number of exceptions to that rule. While there is a significant lacking of Arizona case law discussing how these exceptions apply with respect to easements, particularly if the injury is minor property damage, one possible exception may be similar to that of premises liability based on a perceived special relationship between the dominant and servient estates.
Accordingly, dominant owners should be cautious in hiring an independent contractor to perform work on an easement. While this may seem like the right thing to do to ensure proper repair and maintenance, the dominant owner may still be liable for the contractor’s mistakes.
Ultimately, the best approach is likely to attempt discussions with the servient owner before engaging in any extensive repairs and maintenance.
Another potential issue among neighbors involves trees and other plant life bordering property lines. While a neighbor’s branches and foliage crossing over the property line may be burdensome and an eyesore, one must be careful with how he or she approaches the issue.
First, there is no cause of action against a neighbor for the neighbor’s branches and foliage crossing the property line absent some “sensible or substantial damage” to the real property. See Canon v. Dunn, 145 Ariz. 115, 700 P.2d 502 (App. 1985) (“where no injury has been sustained, no action may be had for the abatement of the nuisance”). Thus, there is generally no legal recourse to force a neighbor to cut back branches or foliage crossing the property line, no matter how burdensome, unless the plant life is causing physical harm to the real property.
So what are a property owner’s options when neighbors refuse to trim their plants?
This is one of those situations in which the courts permit land owners to resort to self-help. Courts have consistently held that a property owner may cut branches crossing the property line and encroaching onto their property. See Canon, 145 Ariz. at 117, 700 P.2d at 504. The property owner must be careful, however, as the branches should be cut back only to the property line. See, e.g. Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 363 (2002). Cutting the branches beyond the property line may expose the property owner to a claim of trespass, and the neighbor may be able to seek damages to the trees as a result of that trespass.
Property owners should again be cautious in hiring independent contractors to perform landscaping duties that may involve trimming a neighbor’s plant life that is encroaching onto their property. The property owner should be sure to either:
- specify in writing that the independent contractor is not permitted to cut anything beyond the beyond property line, or
- work out with the neighbor that owns the plants to have the independent contractor cut beyond the property line and get any such agreement in writing.
Otherwise, the property owner may be exposed to liability for the independent contractor’s conduct if it trims the plant life back beyond the property line.