Daily Development forTuesday, August 30. 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

EASEMENTS; TERMINATION; ABANDONMENT: Nonuse of an easement does not terminate it, nor does a change of circumstance that eliminates the benefits for which the easement was originally conveyed, so long as it does not render the original purpose impossible, and activity by the servient tenant to block the easement will not lead to an assumption of abandonment, but will only support a claim for prescriptive blockage upon the running of the necessary time.

Zadnichek v. Fidler, 894 So. 2d 702 (Ala. App. 2004) 

This case is loaded with issues, and might make a good addition to a law school casebook some time.  The servient owner was burdened by three easements, and brought this lawsuit against the three separate dominant owners to eliminate each of the easements.  The servient used a different theory to attack each of the easements.  The court terminated one but preserved the two others.

As to the first easement, the parties more or less admitted that the servient tenant had fenced off the easement and planted it and warned away the dominant users for more than the twenty year prescriptive period.  The only argument made by the dominant owner was that during that period the servient owner had conveyed interests to others and mentioned in those conveyances the existence of the easement.  The court found this behavior not to be inconsistent with the adverse possession being carried out.  Until it was completed, of course, the easement did represent a potential exception to any interest that the servient owner could transfer.  The fact that there was no affirmative showing that the servient owner in fact intended to destroy the easement by adverse possession also was insignificant.  The facts spoke for themselves unless the servient affirmatively demonstrated a lack of intent to hold in a hostile manner.

As to the second easement, the servient owner had adversely possessed against it, but not for the statutory period.  He  pointed out nevertheless that a large gulley intersected the easement on his property, rendering it impassable.  No one had used it for many years.  Further, other access had developed to the benefitted parcel, and the owners of that parcel were contendedly using that access.  The trial court found as a matter of fact that there had been no abandonment.  The Court of Appeals upheld this finding, but indicated that the trial court might have had the latitude to find otherwise - citing cases whose fact patterns would have supported that result.  But the court emphasized that mere nonuse does not per se indicate an attempt to abandon, and pointed to a case where the benefitted part was able to reopen an easement that had been completed blocked by the servient after 8 years of nonuse.  It also noted, however, another case that found an intent to abandon after !

 40 yea
rs of nonuse use and activity by the benefitted owner to obtain alternate means for the same access provided by the earlier easement.

The servient owner argued that the need for the road had disappeared when alternate routes were provided to the benefitted property, and that it should terminate for want of purpose.  But the court stated that merely stating that an easement was for a “road” did not indicate that the parties expected that it would provide the only access to the benefitted parcel, and that if alternate access were to be provided, the original easement would end.  A statement of a use for a “road” does not indicate a specific and limited purpose for that road. 

As to the third easement, the servient tenant argued abandonment on another basis.  He and the benefitted owner of the easement had bargained for a separate easement that ran along the same route, and he argued that this easement replaced the earlier one.  The second easement provided for a twenty foot right of way on each side of the boundary line.  The earlier easement was for a forty foot right of way entirely on the servient’s side of the line.  The servient argued that the second easement replaced the first, and that the benefitted owner’s rights were limited to twenty feet.

The court held that there was no concrete evidence that the cross conveyance demonstrate an intent on the part of the benefitted owner to surrender whatever rights it already had in the servient parcel, and upheld the trial courts conclusion that there had been no abandonment here either.  Here’s a quote from a prior case:

“Our respect for property rights will not permit us to diminish or reduce [the] rights [of the owner of the dominant tenement] simply because neither ]that owner] nor its tenant needs all the property to which it has property rights.  Certainly, our federal and state constitutions protect such rights and would prohibit judicial deprivation or diminution of such rights based solely upon a judicial determination of an owner’s lack of need for such property.  The implications of a contrary result would be frightening.”

Comment: The case is consistent with established doctrine right down the line, but the discussions of the court relating to its  finding against the servient in the two cases in which the court so found each raise interesting issues.

As to the abandonment claim, the interest is really in the precedent given by the court.  Despite its pronouncement that mere nonuse or development of alternate routes does not amount to an abandonment, the Western Union case cited by the court in fact appears to stand precisely for that proposition when the nonuse has lasted forty years.

As to the claim that the creation of an alternate easement of less width did not displace the former easement, the editor asks “why not?”  Unless there was evidence of some other intent, it would appear that it was precisely the intent of the dominant owner to replace one easement with the other, if only to put behind him a dispute which the servient owner had shown a strong willingness to pursue aggressively with regard to his other neighbors. 

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