Based on our precedents and their underlying political considerations, we therefore conclude that, as in cases of change of servitude, a balancing test for the displacement of an undefined right of way is also appropriate. In the absence of a proven intention to the contrary, a landowner that coincides with the beneficial use and development of his or her property may defer that right-of-way as long as the landowner bears the cost of the relocation and as long as the change does not thwart the intention or purpose of the parties in the creation of the right-of-way, increase the burden on the holder of the easement and significantly reduce the benefit of the right to passage. (see Reprocessing [Third] of Property [Easements], Provisional Project No. 4, § 4.8). 5. Rights of landowners in the easement area. This instruction concerns the rights that remain to the defendants and the way in which they can use their land in the territory of the servitude. In our second case, the plaintiff sought to establish that the defendant had interfered with his right of way. Unlike Oliver v. Symons, supra, which concerned an express concession, the right of way in Zieleniewski v. Scheyd had been acquired through long periods of use.
The right concerned land (referred to in the judgment as green land) located between the highway and a field belonging to the plaintiff. On this basis, according to the appellants, the actual extent of the right-of-way must be interpreted as extending beyond the width of the track itself, so that any agricultural vehicle can use it, regardless of its width. Similarly, they argued that right-of-way also includes what is known as «on-board space» – to allow vehicles that sometimes have to turn on the edge at different points along the road (for example, when manoeuvring in a bend). The defendant was required to keep a close eye, regardless of the vehicle with a right of way. If the preferred driver loses his right of way, he is not transferred to another driver. «The appellant also argues that the trial court must legally determine whether the cutter`s access rights have been significantly affected before referring the case back to the jury. Admittedly, it is for the court of first instance and not for the jury to pass on the question whether, according to the facts presented, the adjacent landowner`s right of access is substantially impaired. However, this was done by the trial court when it ruled on the admission of evidence and in its instructions to the jury.
Although the Tribunal does not make specific findings in this regard, its findings in this regard are implicit in the judgment awarding compensation. (People v. Ricciardi, loc. cit., 23 Cal. 2d 390.) «All the cases cited are different from the ones we have now. In Beckham, the complainant owned land that was not taken for construction and that was located beyond the intersection and in the first block of the road in question. During construction, an underpass was built and, as a result, the plaintiffs could no longer walk directly from their property through the next street that intersects in the city center. The court concluded that mere inconvenience and diversion of travel beyond a intersecting road resulting from the construction of an improvement do not constitute grounds for claim for damages by landowners belonging to a road that crosses the road on which the improvement was built; whereas the recovery of the landowner must constitute a violation of a right he has in respect of his property; And such a right of ownership is that of the proper use of the road that leads the property in both directions to the next intersection. The plaintiffs still had such a right. The accused`s property had not improved at the time of the trial.
It had been zoned in area C-1 for limited commercial use in 1950 when the subdivision to which it belonged was accepted. At that time, it was adjacent to the national road. However, the county had asked the subdivision to accept the subdivision card to reserve and upgrade 52 feet of the state highway for the construction of the county road, with a 28-foot-wide road, with curbs and gutters, and an uncorrected parking lot and sidewalk 12 feet on both sides. The divider was also to dedicate 60-foot easements to the construction of Elmcroft Avenue and Ringwood Avenue, pave 36 feet on Elmcroft and 40 feet on Ringwood for vehicle use, and pave Ringwood to the State Highway right-of-way line. The defendant, who was then an agent of the subdivision company and participated in the dedication, subsequently acquired the property in question.