Question: We own a large home adjacent to a county highway in Pinal County. Our neighbor owns a 5-acre lot which is “landlocked” except for an easement over our land to the county highway. Our neighbor has now purchased 20 acres of land adjacent to his 5-acre lot, and wants to build a 40-home subdivision on the total of 25 acres of land. We are concerned that, instead of one neighbor driving to the county highway over our land, we will now have 40 homeowners and their friends driving over our land. Is our neighbor entitled to expand his use of the existing easement over our land to use by a 40-home subdivision?
Answer: Probably not. The general rule is that the holder of an easement may not expand its use beyond the reasonable and foreseeable intended use of the easement. For example, your neighbor probably would be able to build two or three homes on his 5-acre lot, and these two or three new homeowners could use the easement over your land to the county highway. Your neighbor, however, probably cannot use the easement over your land to the county highway to benefit the 20 acres of land beyond his 5-acre lot. Therefore, if your neighbor wants to build 40 homes on the 25 acres of land, he will need to find some other access to the county highway. If the 25 acres of land is “landlocked,” i.e., no other access to the county highway, your neighbor should be able to privately condemn an easement over your land, but your neighbor will have to compensate you for this use of your land. This private right of condemnation by your neighbor is similar to the Arizona Department of Transportation’s public right of condemnation for a new freeway.