Thank you for allowing me to answer your interesting question. You
should first note our disclaimer, in which you are remidned that our
answers are not intended to substitute for informed professional legal
advice. Our policy prohibits us from offering such advice it is
recommend that you consult a licensed attorney for best results.
However, since you have requested an ?opinion? as well as published
information, I can certainly offer you mine and also point out some
sources that are pertinent to this issue. With that necessary opening
aside, let me explain what my research has revealed:
1. If I do go forward with a lawsuit to get a court order to prevent
him from daily parking, what do past court cases indicate for my
Unfortunately, I believe my answer to this first issue may very well
speak for the viability of the entire case. In a very similar and very
recent 2006 case entitled ?Flagg v. Corcoran?, a California Appeals
Court ruled that in the use of a nonexclusive express easement for
ingress and egress from an otherwise landlocked parcel of land, the
parties to the easement must accommodate each other's reasonable uses
of the easement, even if such cooperation requires them to provide a
one hour notice of the need to move a parked vehicle which might be
blocking others from reasonably traveling through such easement.
Flagg v. Corcoran
In this case (as you will presumably see when you read the summary)
the parties are Flagg (the plaintiff), Corcoran (the primary owner and
defendant) and Mertes (tenant, co-defendant, and daughter and
son-in-law of the Corcorans). The gist of the lawsuit was this:
?The Merteses regularly permitted social and business visitors to park
in the easement. When this occurred, it made it difficult for Flagg to
move his motor home. In response, on occasion Flagg would park his
motor home in the easement, making it difficult for the Merteses and
their guests to use the easement. When this occurred, it made it
difficult for Flagg to move his motor home. In response, on occasion
Flagg would park his motor home in the easement, making it difficult
for the Merteses and their guests to use the easement. In 2002 the
Merteses replaced a split rail fence on the south side of the easement
with a wood and iron fence. The Merteses did not obtain a new survey
for the fence and according to Flagg the fence not only encroached on
the easement it also made it very difficult for him to move his motor
home, even when no cars were parked in the easement. In December 2003
Flagg filed a complaint against the Corcorans and the Merteses. He
alleged the new fence encroached on the easement and gave rise to
claims for trespass, nuisance, negligence, quiet title and declaratory
relief. He asked for damages and an injunction requiring removal of
the fence. The Corcorans and the Merteses answered and filed a
cross-complaint. In their cross-complaint they alleged they had the
right to maintain the new fence and in addition asked the court for a
declaration their guests and invitees had the right to temporarily
park in the easement area.?
The Merteses removed the fence prior to trial so Flagg?s issue was a
moot point, however the court proceeded to hear the Merteses
cross-complaint and found that transitory parking did not unduly
interfere with the rights of the parties and was in fact an expected
use of the easement.
2. Is there anything I can do short of a lawsuit to prevent this
behavior (e.g. a barrier like boulders?).
I think the fact that this was precisely what the Merteses did and
what Flagg sued them for speaks for itself in this case. The Merteses
built a barrier on the easement and Flagg contended that it encroached
on the easement right-of-way. Indeed it did and had the Merteses not
removed the fence prior to the trial, it is clear that they would have
lost this portion of the case. Instead they removed the fence
(presumably because they learned, discovered, or was advised they were
in error) so the matter was never heard. It is almost certain in my
opinion that the Merteses would have had to pay for actual or punitive
damages had they not wisely taken this corrective measure prior to
In short, barrier?.bad idea.
3. Everything I have read about parking on easements indicates that
?transitory? parking is an implied use for an ingress/egress easement.
Is this true?
Some easements do include an ?implied? right to transitory parking but
this type of right is intended primarily for roadway and utility
workers rather than parties to the easement and is not merely implied
in the case of ALL parties (guests, residents, whomever). In the
matter re ?Heath v. Kettenhofen?, for example, Plaintiffs Heath and
defendant Kettenhofen were owners of adjacent parcels of land. The
immediate cause of the lawsuit between the parties arose over a
dispute about the use of the easement for the parking of vehicles, and
from Heath's insistence upon the right to run a fence along the common
boundary line, restricting Kettenhofen?s access to it. The judgment
prohibited Heath from building the fence along the common boundary and
declared that ?the rights of the parties in the easement for roadway
purposes were "coexisting and equal" and that each party was entitled
to use the easement for such transitory parking as would not interfere
with the rights of the other party.?
The matter was appealed and the Appeals Court upheld the decision.
Heath v. Kettenhofen (1965) 236 CA2d 197
(You will note from the title of the case that this decision is one
that has been cited as a published legal precedent since 1965! It?s
hard to fight that.)
Likewise is the case of ?Dolske v. Gormley?. While parking was not a
specific issue in this case, the issue of unrestricted and equal use
of an easement was.
Dolske v. Gormley (1962) 58 C2d 513
Both of the cases I mentioned above have multiple links of other
decisions regarding easement issues. Take some time to examine them.
I?m certain you?ll understand what I meant when I said ?unfortunately
[for you]? in my opening statement.
4. What does ?transitory parking? mean? I assume that it is
guest/temporary parking, is that correct?
For the purposes of easement law California Code does not specifically
define ?transitory parking?. There are several reverences to
transitory things whoever and in each case the word is used to
describe something that is not permanent. In the Financial Code for
example, a residential or business structure is described as
?substantial and permanent and not merely transitory?.
In the Revenue and Taxation Code a property that is not permanently
occupied is referred to as one that is ?for a temporary and transitory
In the Education Code, temporary funding is referred to as a
?transitory function? until the institution can pay for services
Clearly, the legal term ?transitory? (I assume universally) means
?temporary?, and ?not permanent?. Whether or not, in this context, it
exclusively means ?guest parking? or ?resident parking? is most likely
an isue one should consult an attorney about since there appears to be
no public information available about the definition. Logically
speaking though, one can probably quite safely assume that the meaning
is the same, since most statutory texts tend to be relatively
consistent across the entire spectrum of their chapters in their use
Now in conclusion, let?s get back to Question #2: Is there anything I
can do short of a lawsuit to prevent this behavior?
As I said, I recommend you consult an attorney even though you are
not keen on going to court. There are two primary reasons for this.
1. California is a very litigious society. People can be sued or
counter-sued at the drop of a hat. Any misdeeds on your part, even if
actually intended to keep the peace or considered by you personally as
?lesser-evils?, may still land you in court.
2. A cleverly drafted letter on an attorney?s letterhead may be all it
takes to coerce your uncouth (and now uncivilized) neighbor mend his
Short of this, I see no simple solution to two neighbors who cannot
agree on an issue that several courts have already upheld was
dependent upon the cooperation of the parties involved. As for your
question about getting him to pave the road - I doubt that will have
any merit in a court of law unless it is specifically mentioned in the
easement agreement. You may however be able to get him to repair any
damages he causes, arguing that equal use also requires equal
responsibility for wear and tear. This of course is another issue that
it would probably take an attorney (which we are not) to hash out of
the statues for you for certain.
I hope you find that my answer exceeds your expectations. If you have
any questions about my research please post a clarification request
prior to rating the answer. Otherwise I welcome your rating and your
final comments and I look forward to working with you again in the
near future. Thank you for bringing your question to us.
Tutuzdad-ga ? Google Answers Researcher
Flagg v. Corcoran
Dolske v. Gormley (1962) 58 C2d 513
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