Adam D. Martinez | Chairman of Real Estate Litigation Department
Question: I own a property in Marana, Arizona, which includes a small airplane hangar, and an easement for “existing roads,” one of which I have used for many years as a private airstrip for taking off and landing small aircraft. The easement passes through my neighbor’s property on both sides. Recently, my neighbor sold his property and the new owners have erected a chain across the easement and told me that the easement may not be used for aircraft. I reviewed the easement document and the reference to “existing roads” does not specifically reference aircraft, but I am confident that the easement has been used for aircraft from the time it was granted. Can I remove the chain and continue using the easement as an airstrip?
Answer: Probably, yes. Courts will attempt to determine what the parties to an easement intended when they created the easement. Usually, the plain language of the easement will control this determination. However, where the language is unclear, courts will look at other circumstances to determine the parties’ intent. If the road was used as an airstrip at the time the easement was granted, then it is likely that the parties intended that the uses of the easement included use as an airstrip and your new neighbor probably cannot prevent you from continuing to use it as an airstrip.
If the neighbor will not agree to remove the obstruction voluntarily, you can file a lawsuit which could take several months or longer to resolve. However, you can also ask the court to issue an order (injunction) requiring the chain be removed pending the conclusion of the lawsuit. Once the court issues the order, the neighbor will have to remove the obstruction temporarily at first and then permanently if you win the lawsuit.