Daily Development for Monday, April 17, 1995

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

EASEMENTS; TERMINATION; CESSATION OF PURPOSE: When a tract of agricultural land loses its appurtenant water rights, the cessation of purpose doctrine extinguishes the water flow easement in a community ditch, where the easement was created for the particular purpose of irrigating the tract. Olson v. H&B Properties, Inc., 882 P.2d 536 (N.M. 1994) The holder of the right sought to continue to use the easement because it owned other lands that benefitted from water flowing through the same ditch. Under the community arrangement, the owner of each benefitted property had a certain number of days of flowage during an eighteen day cycle. There was insufficient flowage for all owners to get all the water they needed. Other landowners successfully argued that those days of flowage allocated to the property that no longer had water rights should be taken away from the owner of that property, even though useful for other properties owned by that owner.

Comment: This case is a relatively unusual example of circumstances under which an appurtenant easement is terminated when there is no concrete evidence that the dominant tenant has "abandoned" the easement right. It really is no more than a reading of the probable intent of the parties who created the easement. In general, however, courts are reluctant to "read in" an intent to limit the extent of an easement where the easement itself does not contain such limits.

The case appears correct, but, the lesson for practitioners is that lawyers drafting easements should try to project what events in the future might have an impact on the continued operation of the easement and try to address at least those events most likely to occur. Too often, easements establish broad and permanent, burdens on property even though they are created to serve limited needs that are not likely to be permanent.

Notwithstanding the sloppiness that frequently occurs in the drafting of easements, the editor believes that courts should be cautious about restricting their use based upon changed circumstances. Where the parties have created a property right, it is up the the parties to "trade out" that right if it no longer has value. Public policy in this area is best served by a clear enforcement policy, rather than a haphazard "second look."

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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