Daily Development for Wednesday, April 14, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu
EASEMENTS; SCOPE; RELOCATION: Dominant tenant has no right to relocate easement.
Koeppen v. Bolich, 318 Mont. 240, 79 P.3d 1100 (2003)
Bolich’s predecessor obtained an easement over four adjacent parcels lying
between his land and the public road. This easement ran along a bluff adjacent
to Kootenai Creek. Although the written grant of easement did not identify a
precise location, it stated that the road was to be located “as close to the
bluff as possible.” Apparently a rough road was established and used for about
twenty years.
Thereafter, the dominant parcel passed into other hands and the road was not
used for another thirty years or so. Owners of the various parcels over which
the easement passed developed their properties and put various kinds of
structures and landscaping in the easement bed, including even buildings in some
cases, although apparently no one actually blocked the easement completely.
Ultimately, Bolich and his co-owners elected to reopen the easement, and they
did it the old fashioned way, by simply starting up the old bulldozer and
driving along the trail. They were in the process of dismantling a swing set,
with the ‘dozer chugging peacefully on the plowed road they had created up to
that point, when the owners of the property they’d been digging up came running
out to see what was going on.
Ensuing negotiations resulted in an agreement to relocate the easement across
this owner’s property. The owners paid Bolich $36,000 and a new easement route
and Bolich specifically released all rights to the old route and cranked up the
bulldozer again. As Bolich approached the boundary of this property, the owner
of the next property noticed that he appeared to be about to build a road across
this property and ran for the lawyers. Although the neighbor’s lawyers told
Bolich that the terminus of the road he was plowing did not match up to the
place where the old easement crossed the neighbor’s property, Bolich just kept
driving the ‘dozer, and built a 70 foot length of road from the boundary of the
preceding property across the neighbor’s land before he hooked up to the old
roadway again. Needless to say, lawsuits were filed.
The trial court found Bolich in contempt, order damages, enjoined further
trespass, and ordered the land restored where it had been plowed into a road. On
appeal, Bolich mostly argued about whether the trial court properly cast aside
his evidence that the real routing of the road in fact passed through the
neighbor’s property at the location where he had pointed it when he negotiated
the relocation agreement with the swing set people. The court upheld the trial
court on the factual analysis, and simply commented that it was hornbook law in
Montana that the dominant owner can only use the easement he has, and can’t go
beyond.
Comment 1: Ordinarily, aside from the somewhat rustic facts, this is not a case
worth comment, except for the current controversy over relocation of easements
kicked up by the new Restatement of Servitudes. The Restatement proposes that
easements can be altered and relocated. Could this be at the behest of the
dominant as well as the servient tenant? Actually, Sec. 4.8 of the Restatement
reserves this power to the servient. But, hey, if we’re going to permit it at
all, and “no harm, no foul” is the test, why shouldn’t a dominant who is faced
with the possibility of a los of a “connect” with other links in an easement be
able to relocate? Needless to say, all this theoretically is subject to court
review of whether indeed the change is necessary and there is “no foul.” And we
all trust those wise judges with our real estate, don’t we? (Actually, sometimes
we have no choice.)
In any event, it may be in the best interest of both the dominant and the
servient tenant to provide expressly in every easement that there shall be no
relocation of modification without the express consent of the parties. This
solves the future problem. Now what about that 200 million or so easements that
were written before the Restatement?
Comment 2: The editor isn’t arguing that this case would be a could case for
relocation at the behest of the dominant tenant. Mr. Bulldozer just made a
mistake, and has to live with it. One wonders whether it would be possible to
undo the agreement releasing the earlier easement on the grounds of frustration
of purpose? Works for Mr. Bulldozer, but Mr. Swing Set will argue that the
agreement from his perspective was just to keep the ‘dozer away from the kids,
not to facilitate ready access to Mr. Bulldozer’s land.
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