Daily Development for Monday, August 6,
2007
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
EASEMENT RIGHTS:
Although an ingress/egress easement does not specifically reserve
parking rights
to the servient tenant, the servient tenant retains such rights as
long as
the parking does not unreasonably interfere with the ingress/egress
rights. Patterson v. Sharek, 924 A.2d 1005 (D.C. 2007).
In a
dispute
between adjoining landowners involving a right-of-way for automobile
ingress and
egress across a portion of one of the landowner property, the
owner of the
dominant tenement argued that the owner of the servient tenement may not
park an
automobile within the area that is subject to the ingress/egress
easement, as
there was no reservation of parking rights in the deed of easement
itself.
Using principles applied by the court in two previous cases, the court
concluded
that, even though was no reservation of parking rights in the deed of
easement,
the owner of the servient tenement retained the right to park in the
right-of-way, as long as he could park without unreasonably interfering
with the
other landowner right-of-way for ingress and
egress.
The
servient owner
had argued, in fact, that the continued use of a portion of the right of
way for
parking established a termination of the right of way as to that portion
of the
right of way. The court affirmed the trial court denial
of this
claim. Since the servient owner had the right to share the use of
the
easement with the dominant, to the extent that there was no unreasonable
interference with access, the servient parking activities were
not hostile and
therefore had no impact on the continued rights of the dominant
tenant.
Comment 1: There
is uniform agreement that a servient tenant can make use of a the
dominant
easement area to the extent that there is no unreasonable interference
with the
carrying out of the activities for which the easement was created.
Parking
in a right of way that does no obstruct ingress and egress is virtually
always
regarded as permissible.
The
cases are not
in accord concerning more permanent activities, such as curbs, trees, or
even
fences, that encroach onto the easement area but still leave enough room
for
ingress and egress. Some view the rights of the dominant to a
clear path
within the easement area as paramount, and will permit no permanent
installations. Others view the permanent installations in the same
way
they view temporary interference such as parking: so long as there is no
immediate impact on the dominant right, the activity is permitted.
Gerald
Korngold, in his Hornbook: Private Land Use Arrangements, has an
excellent
discussion of the principles and cases in Section 4.06, including many
right of
way cases.
For a
fascinating
look at how issues like this can go far, far wrong, see Reichardt v.
Hoffman, 52
Cal. App. 4th 754 (1997), were a bitter and nasty servient tenant made
life
miserable for the dominant tenants because they and their friend
occasionally
parked in the easement area for the servient property, which
he used only to
store junk. The defendant servient tenant almost literally drove
his
neighbors to ruin, and the trial court in fact terminated his easement
on the
basis of his outrageous behavior. The appeals court reversed that
aspect
of the opinion, without condoning the behavior. It acknowledged
the rule
that, absent specific language prohibiting servient parking on the
dominant
area, such parking is permitted.
Comment 2: The
more interesting issue, of course, is whether the grant of a right of
ingress
and egress carries with it the right to park on the servient
tenant
land. Again, the cases are in dispute. Of course, whether
rights are
exclusive and other specific language of a grant will be relevant.
The
editor sent off his copy of the wonderful Bruce and Ely treatise on
Easements
and Licenses in Land to be updated, and it disappeared.
There may be
some specific case discussion on this point there. The Korngold
materials,
although excellent on the servient parking, become more general in
discussion
the scope of a dominant rights.
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