What is my recourse if my neighbor’s excavation broke my sewer line?

UPDATED: Sep 30, 2022

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What is my recourse if my neighbor’s excavation broke my sewer line?

Our house was built in 1915 and once sat on a larger parcel. In 1961, a portion was subdivided and a house was built on it. We have 2 sewer lines which probably go back to the 1920’s or 1930’s that come

from our house, run under the neighbor’s property, then join together in a

Asked on August 2, 2017 under Real Estate Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

It would not be an easement by necessity unless there is *no* other way for the lines to run--if they can run other than through the neighbor's property, there is no necessity, and hence no easement by necessity.
You *may* have an implied easement--the situation you desribe seems to meet the typical criteria for them, of an important use existing pre-subdivision--but the risk with implied easements is that since they are not set out in so many words, you are counting on a court concluding that one exists. Even when it appears that you meet the criteria, you could get a judge who simply takes a very restrictive or negative view of them and does not find that one exists. There is a risk involved in counting on an implied easement.
Even if you are right and there is one, if you neighbor disagrees, you will have to sue him for a declatory judgment (court determination) finding that the easement exists. You will be spend several thousand dollars on that, most likely, with a reasonable chance but no guaranty of winning. You may wish as an alternative to accept his 50-50 offer.

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