What is the scope of a prescriptive easement where a motor vehicle is not allowed to cross a road?

California, United States of America

The following excerpt is from Connolly v. McDermott, 162 Cal.App.3d 973, 208 Cal.Rptr. 796 (Cal. App. 1984):

Moreover, "The ultimate criterion in determining the scope of a prescriptive easement is that of avoiding increased burdens upon the servient tenement...." (Pipkin v. Der Torosian, supra, 35 Cal.App.3d at p. 729, 111 Cal.Rptr. 46.) In allowing the prescriptive easement at issue in Pipkin, the court faced no prospect of an increased burden on the servient tenement. There, vehicles regularly traversed the easement; it would be immaterial to those occupying the servient tenement whether the vehicles were going to a farm or a residence.

However, a change in the physical objects passing over a road may constitute a substantial new burden not allowed within a prescriptive easement. (Gaither v. Gaither (1958) 165 Cal.App.2d 782, 785-786, 332 P.2d 436 [no right to move house trailers over prescriptive driveway easement established for ordinary vehicles].) Here, the intrusion of motor vehicles would place increased burdens on defendants' vacation property. The increased noise of motor vehicles--and particularly of motorcycles--would itself constitute a substantial new burden on the servient tenement. Anyone who does not think there is a significant difference between horses and motorcycles may wish to ponder why it is that carriages in Central Park are pulled by horses, not Hondas.

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