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socrateaser
socrateaser, Lawyer
Category: Real Estate Law
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Experience:  Attorney and Real Estate broker -- Retired (mostly)
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I have a question about an ingress/egress easement in Northern

Customer Question

I have a question about an ingress/egress easement in Northern California. We are purchasing a lot that borders a working cattle ranch and the main access road currently has 2 cattle gates (no guards) to get to our parcel. The county is requiring us to build a large paved road and culvert over that easement. Are we responsible for the cattle during the construction period? Can we install a barbed wire fence on the edge of the easement in order to protect the cattle... we are willing to put it up ourselves. Or is this something they would and could object to because it eats into their grazing area? It's a 60 foot wide easement that goes about 1500 feet through their property. There is also a large well filled water trough in the middle of the easement that would need to be moved. Any clear cut answers on this or will it depend on the personality of the cattle rancher. ;)
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  socrateaser replied 1 year ago.
Are we responsible for the cattle during the construction period?

A: The owner of the underlying property is entitled to use the easement as long as the use does not interfere with the easement holder's use. You have the right to drive the cattle off of the easement, as long as by doing so, the cattle are not stampeeded entirely off of the property. Food & Agrig. Code 21852. In short, you can use reasonable means to drive off or divert cattle, as long as by doing so, you don't injure or stampeed the cattle.

Can we install a barbed wire fence on the edge of the easement in order to protect the cattle... we are willing to put it up ourselves.

A: Yes, as long as the fence is located on the easement, and there is some means by which the cattle can cross the easement at some location.

Or is this something they would and could object to because it eats into their grazing area? It's a 60 foot wide easement that goes about 1500 feet through their property. There is also a large well filled water trough in the middle of the easement that would need to be moved. Any clear cut answers on this or will it depend on the personality of the cattle rancher. ;)

A: There is no absolute answer here. It's something that you and the property owner must try to negotiate, because a court would attempt to "balance the equities" were the matter to become a genuine legal dispute. If I were in your shoes, my first move would be to try to relocate the entire easement in some manner, where it would be placed at the property's edge to the maximum extent possible, so as to eliminate the need for the cattle to cross. Once it's paved, it's not grazing land, so if the easement were voluntarily agreed to be moved to property border, then any fence you would construct would not interfere with the cattle, because from that point to the property boundary, there would never be any reason for the cattle to enter for grazing purposes.

Hope this helps.
socrateaser, Lawyer
Category: Real Estate Law
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Experience: Attorney and Real Estate broker -- Retired (mostly)
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Customer: replied 1 year ago.

Thank you! Yes the easement is already on the edge of the property so only one side would need to be fenced. They don't need to "cross" at any point except to reach that water trough... which is directly on the easement which is to be paved per county requirement. I think the water trough needs to be moved across the road and if that is done are we clear to install the fence? It's the 2 gates (one at the entrance to the cattle ranch and one at the entrance to our lot which is already fenced in as well) we are trying to remove here in addition to the water trough, since the fire marshall objects to those barriers as it stands. We just don't want those cattle to escape onto the main road when construction is going on so figure the barbed wire fence is the best solution. Can the cattle rancher object to the paving itself even if the county requires it? Our next step is to reach out to him and work out a solution... just wanted to see what kind of industry "standard" there is for ranch lands etc.

Expert:  socrateaser replied 1 year ago.
Can the cattle rancher object to the paving itself even if the county requires it? Our next step is to reach out to him and work out a solution... just wanted to see what kind of industry "standard" there is for ranch lands etc.

A: Easements are strictly construed. If the easement states that the use is for "ingress and egress," then there is nothing that would permit the rancher to prevent you from paving the road -- because paved roads are the rule not the exception in the year 2013.

If this were 1875, things would be different. But, it's not, and you have the high ground, unless the easement expressly states, "no paving allowed" (or similar).

Hope this helps.

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socrateaser
socrateaser
Real Estate Lawyer
34665 Satisfied Customers
Attorney and Real Estate broker -- Retired (mostly)