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

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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