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INTRODUCTION
Practicing real estate lawyers all over the United States have long been familiar with a problem that can arise whenever a landowner-client seeks to develop land burdened by an easement: the current location of the easement prevents development of the land. However, if the easement can be moved—either to another location on the servient estate or even to another parcel—the development potential of the servient estate can be unlocked. Experienced counsel might advise the client to propose a new location for the easement, one that will serve the interest of the easement holder equally as well as the current location and further offer to relocate the easement and construct all necessary improvements at the servient owner’s expense.
If the servient estate owner makes this kind of offer and the easement holder rejects it, what can the lawyer for the servient estate owner do? Until recently, in about half of the states, those that follow the so-called “mutual consent rule” for easement relocation, the servient estate owner must scuttle the development project unless it can entice the easement holder to consent—usually by making some kind of ransom payment.03 In fifteen states and the Commonwealth of Puerto Rico, however, the servient estate owner could go to court and would have a reasonable chance of convincing a judge to approve a unilateral easement relocation based on either recent developments in the state’s common law or an easement relocation statute.04
In 2020, the Uniform Law Commission (ULC), formerly known as the National Conference of Commissioners of Uniform State Laws, entered the field by approving and recommending a new uniform act, the Uniform Easement Relocation Act (“the U.E.R.A.”), to state legislatures across the United States.05 Since that time, six states (Arkansas, Nebraska, Oklahoma, Nebraska, Nevada, Utah, and Washington), have enacted the U.E.R.A.06
This Article offers a brief history of the legal background and law reform efforts preceding adoption of the U.E.R.A by the ULC. It also discusses California common law, which still adheres to the mutual consent rule. The Article then explains the key provisions of the U.E.R.A and addresses some of the minor changes that several states have made to the scope of the act. Finally, the Article discusses the most frequently asserted objections to any change in the common law rule and the primary justifications for adoption of the U.E.R.A.07
The authors of this Article observe that California is in the process of rethinking many basic assumptions related to the legal environment for real estate development. In response to the state’s acute affordable housing shortage, the legislature has recently enacted bold reforms to many areas of land use regulation. Some of these reforms revise the foundations of California environmental law to facilitate housing development.08 Others encourage or mandate that local governments amend their zoning codes to facilitate new housing development by, for example, allowing “as of right” duplexes and accessory dwelling units on lots formerly restricted to single family zoning and making it easier to subdivide such lots into two smaller lots.09 This Article encourages California to take another bold step and revise an outdated feature of its property law to facilitate development of land burdened by easements while still protecting the important property interests of easement holders.
I. BACKGROUND – THE LAW BEFORE THE U.E.R.A.
A. THE MUTUAL CONSENT RULE, ITS CRITICS, AND EXCEPTIONS
Beginning early in the nineteenth century, American courts regularly confronted disputes between servient estate owners and dominant estate owners (or other easement holders in the case of easements in gross) over the relocation of easements. In some early cases, a servient estate owner sought to relocate an easement.10 In other cases, a dominant estate owner sought to relocate an easement.11 Most of these initial decisions tended to focus on the practicality of the particular relocation under consideration, but occasionally courts offered a more formalistic approach emphasizing the physical permanence of an easement once its original location had been determined by agreement or use.12 By the end of the nineteenth century, Leonard Jones’ Treatise on the Law of Easements articulated a general rule, stated in relatively categorical terms: “A way once located cannot be changed by either party without the consent of the other.”13
Over the course of the twentieth century, this categorical version of the mutual consent rule crystalized as courts rejected proposed or actual easement relocations that promised significant benefits for a servient estate owner,14 or a dominant estate owner,15 even though the relocation would cause no apparent harm to the easement holder or the servient estate. Two decisions played a particularly significant role in establishing the apparent orthodoxy of the mutual consent rule.
In Stamatis v. Johnson, the Arizona Supreme Court rejected a servient estate owner’s proposal to relocate a prescriptive irrigation easement 26 feet to facilitate the construction of a residential subdivision.16 In Stamatis, the servient owner estate offered to replace the irrigation ditch, which was located in the original right of way, with a modern, underground, concrete pipeline that would have furnished water in the same quantity and just as conveniently as the old ditch.17 The court justified its application of the mutual consent rule by pointing to earlier twentieth century decisions,18 and by asserting that the opposite approach, allowing the location of an easement to be varied when the benefits of relocation are substantial and the relocation would not harm the easement holder, would “incite litigation” and lower the value of and discourage investment in the parcels affected by the easement.19
In 1980, almost thirty years after Stamatis, the Maine Supreme Court in Davis v. Bruk reversed a trial court judgment permitting a servient estate owner to relocate, at her own expense, a vehicular right of way that passed so close to her house that traffic posed a risk of damage to the structure and put the servient owner and her guests in physical peril.20 Here, the court justified its reliance on the mutual consent rule by citing earlier precedent,21 and by claiming that any acceptance of moderation and flexibility in this area of law would introduce “uncertainty into land ownership,” “proliferate litigation,” deprive the dominant estate owner “of the security of his property rights in the servient estate,” lead to “harassment,” and confer an “economic windfall” on the servient owner.22
The solidification of this harsh, categorical rule did not lack critics. Justice Udall of the Arizona Supreme Court expressed his frustration with the majority decision in Stamatis. He observed that the court had effectively ordered the “reopening of an old, unsightly, wasteful, open irrigation ditch down the center of a ‘blacktop public street’ . . . just to satisfy the whim of the plaintiff,” and added that the result “shocked my conscience.23 According to Udall, the court could have easily exercised “its broad, equitable powers” and found a way to do “justice between the parties, without perpetuating for all times an archaic and dangerous instrumentality of irrigation.”24
Footnotes
1. Newman Trowbridge Professor of Law, Paul M. Hebert Law Center, Louisiana State University; Reporter, Uniform Easement Relocation Act, Uniform Law Commission.
2. Partner, Cox Castle, Los Angeles, CA, ABA Adviser to Uniform Easement Relocation Act Drafting Committee.
3. See infra notes 10-22, 65 and accompanying text.
4. See infra notes 32-37, 60-64, and accompanying text. In other states, the law is less clear with courts allowing unilateral easement relocations only in narrow situations governed by a balancing of the equities doctrine. See infra notes 28-31 and accompanying text.
5. Unif. EasEmEnt RElocation act (Unif. Law Comm’n 2020) (hereafter U.E.R.A). See https://www.uniformlaws.org/ committees/community-home?communitykey=ec690784 90d6-42c3-99ea-1e13a49c8540&tab=groupdetails.
6. L.B. 501, 117th Leg., (Neb. 2021) (enacting Neb. Rev. Stat. § 76-2,138 et seq.); H.B. 132, 64th Leg., (Utah 2022) (enacting Utah Code Ann. § 57-13c-101 et seq.); H.B. 1408, 94th Leg., (2023 Ark.) (enacting Ark. Code Ann. § 18-11-701 et seq.); S.B. 5005, 68th Leg., (Wash. 2023) (enacting Wash. Rev. Code Ann. § 64.65.010 et seq.); A.B. 192, 83rd Leg. (Nev. 2025) (enacting a new chapter to Nev. Rev. Stat. § 10:112.1 et seq., effective October 1, 2025); H.B. 1060, 60th Leg., (Okla. 2025) (enacting Okla. Stat. tit. 60, §1501 et seq.)
7. For a more detailed examination of the common law and statutory law addressing easement relocation prior to adoption of the U.E.R.A., developments in other countries, a section by section exposition of the U.E.R.A., and a thorough discussion of objections to and justifications for the U.E.R.A, see John A. Lovett, Easements and Change, 74 BAYLOR L. REV. 1 (2022).
8. See A.B. 130, 2025-2026 Reg. Sess., Ch. 22 (Cal. 2025); S.B. 131, 2025-2026 Reg. Sess., Ch. 24 (Cal. 2025); Laura Rosenthal et al., California Rolls Back its Landmark Environmental Law, nEw YoRk timEs (June 30, 2025).
9. See S.B. 9, 2021-2022 Leg., Reg. Sess. (Cal. 2021), enacting Cal. Govt. Code §§ 65852.21, 66411.7 (permitting duplexes and subdivision of former single family lots in two lots). cal. Govt. codE §§ 65852.2(a)(3)(A) (2023); 65852.2(c)(2)(C) (2023) (allowing ADUs). See generally Clayton Nall, Plain-Bagel Streamlining? Notes from the California Housing Wars, 75 casE w. RsRv. l. REv. 263 (2024) (analyzing recent California’s zoning reform legislation).
10. Wynkoop v. Burger, 12 Johns 222, 223 (NY 1815); Gore v. Fitch, 54 Me. 41, 45 (1866).
11. Jennison v. Walker, 11 Gray 423 (Mass. 1858).
12 Gore v. Fitch, 54 Me. 41, 45 (1866) (“The day after its execution the rights of the grantee were the same as the plaintiff’s rights today. Whatever was conveyed could not be reclaimed and new rights substituted.”)
13. lEonaRd a. JonEs, a tREatisE on thE law of EasEmEnts § 352, at 283 (1898).
14. Smith v. Jackson, 104 S.E. 169, 170 (N.C. 1920); Sakansky v. Wein, 169 A. 1-2 (N.H. 1933).
15. White Brothers & Crum Co. Ltd. V. Watson, 117 P. 497 (Wash. 1911). In White Brothers, the Washington Supreme Court rejected a dominant estate owner’s proposal to relocate and improve an irrigation easement over mountainous terrain after a severe flood had damaged the original flume and ditch and, moreover, refused to consider any equitable adjustment of the location and any hardship imposed on either party. Id at. 498-99.
16. Stamatis v. Johnson, 224 P.2d 201 (Ariz. 1950), modified on reh’g, 231 P.2d 956 (Ariz. 1952).
17. Id. at 202-03.
18. Id. at 203 (citing and discussing White Brothers White Bros. & Crum Co. Ltd. v. Watson, 117 P. 497 (Wash. 1911), Beville v. Allen, 237 237 P. 184, 185 (Ariz. 1925), and Hannah v. Pogue, 147 P.2d 572, 575 (Cal. 1994)).
19. Id. at 203 (quoting 17 am. JUR., Easements § 87 (1938)).
20. Davis v. Bruk, 411 A.2d 660, 661-62, 664-666 (Me. 1980).
21. Id. at 664-65 (quoting Sakansky v. Wein, 169 A. 1, 3 (N.H. 1933), and citing and discussing Smith v. Jackson, 104 S.E. 169, 170 (N.C. 1920)).
22. Davis, 411 A.2d at 665.
23. Id. at 204 (Udall, J. dissenting).
24. Id
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