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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