Daily Development for Friday, August 24, 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
EASEMENTS; CREATION; DEDICATION: Easement dedicated to public (as opposed to a public agency) takes effect immediately, is irrevocable, needs no special form for creation, and members of the public making frequent use of the easement may have a duty to contribute to it’s maintenance.
Hunt v. Richardson, 2007 WL 2181528 (7/31/07)
Owner of a fifteen acre parcel recorded a survey indicating the existence of a fifty foot “non-exclusive perpetual easement for ingress, egress and public utilities” along the edge, and a similar thirty foot easement across the middle of the parcel. A few days later, the owners actually recorded an instrument granting such easement to ghe general public as reflected in the survey.
A year later, the owner sold the entire parcel to Richardsons.
Richardsons widened and paved the easement within the fifty foot parcel, and built a fence “along the forty foot line.” (The editor assumes that this means that they cut off ten feet of the easement’s width with the fence.) They installed a gate across the easement, and gave remote controls to operate the gate to all their neighbors.
Simpson, a neighbor who had been using the easement for the movement of cattle, objected that the fence and the gate interfered with his use of the easement. Richardsons counterclaimed challenging the validity of the easement and asking for a declaration that the neighbors had a duty to contribute to the maintenance of the easement and that they would be liable for injuries caused by lack of maintenance.
The first issue addressed by the court was Richardsons’ claim that the easement was invalid because the instruments creating it did not constitute a valid deed under Arizona law. The court indicated that a formal deed is not required to create an easement. Any of a variety of methods can be used. The court does say that a valid dedication to the general public must include an offer by the landowner to dedicate and an acceptance by the general public.
Richardsons alleged that the general public had not “accepted” the dedication. The court responded, however, that no particular method was required to demonstrate acceptance, and certainly action by a public agency is not required (here the local county had expressly rejected the dedication.) Several owners, the court noted, had purchased their properties with reference to the very recorded survey that show the dedication. That alone established evidence of acceptance, even of the parties who so acquired their properties never actually used the road. The fact that the survey did not create a subdivision did not matter. Finally, the fact that, necessarily, only a small number of people can use the easement does not make it any less a dedication to “public use.”
Perhaps the more interesting part of the opinion is the discussion of whether Richardsons’ gate unduly interfered with the use of the easement by the neighbors, members of the public. The trial court had found that it did constitute an interference and granted summary judgment to the neighbors. Perhaps it was influenced by Arizona authority, acknowledged the appeals court, that in Arizona a dominant tenant is entitled to travel on every part of an easement, a curb installed by the servient owner cutting off seven feet of a forty foot wide express access easement was held to be an unlawful obstruction without any consideration of whether the remaining 33 feet were sufficient to provide adequate access.
Although this authority clearly might have invalidated the fence cutting off ten feet of the easement, the court stated in a footnote that Richaardsons had not adequately appealed the lower court’s holding on this point, and thus did not discuss the fence any further, leaving the fence barred.
As to the gate, however, the court said that a rule against permanent obstructions in an easement does not necessarily lead to the conclusion that the servient owner cannot erect a gate, so long as the gate can be opened by those seeking to use the easement, as was the case here. Not only was the gate unlocked, but it was an automatic gate that could be opened by the push of a button on the post or the use of a remote controller, which Richardsons’ had supplied to their neighbors.
The court noted that the grant of an easement may expressly preclude any gate, but a general grant of a right of ingress and egress does not in and of itself prohibit the servient from erecting such a gate. Further, the prohibition in Arizona of permanent obstructions does not necessarily prohibit gates. The questions is one of “reasonableness” - meaning whether the gate is reasonable in light of the degree of justification and the degree of interference - of course keeping in mind that very little interference will be tolerated, whatever the justification.
The Arizona appeals court decided that the trial court should have more thoroughly reviewed the evidence to balance the impact of the gate on the neighbors versus the justification for the gate given by the Richardsons. The neighbors argued that the Richardsons were required to show that the gate was essential to their use in light of the fact that it impaired the easement access. The trial court apparently bought that argument, but the appeals court demurred. It stated that the benefit of the gate need only be “appropriate” for the servient tenant and that the gate may not be placed for the purpose of annoying the dominant or or obstructing the dominant’s use. Noting that there is some authority for the notion that the need for the servient’s benefit be “essential,” the court commented that “the better approach is to assess whether the improvement is appropriate to use of the servient estate and then balance the need for that improvement against the impact on easement h
The trial court apparently had assumed both that the servient need had to be of an “essential” character and that there was a presumption that any interference with the easement use was “unreasonable.” The appeals court held that there was no such presumption, but that the interference alleged by the neighbors was sufficient that the trier of fact would have to evaluate the evidence, and not just the allegations, to reach a conclusion. They had alleged that it was dangerous for their visitors (who lacked the remote control device) to get out of their vehicles to operate the gate, that the gate sometimes didn’t work at all, and was difficult to operate, and that the gate constituted an unreasonable delay. Richardsons had argued that the gate was necessary as a secondary barrier to protect against horses escaping from their property and that it deterred entry by criminals.
Comment 1: These folks ought to work it out. The factual claims of both sides seem wishy-washy to the editor. He’s glad that his taxes are going to resolve this stupid dispute. Note that now that the fence is coming down, the issue of the gate may disappear.
Comment 2: But the court’s analysis of Arizona law in this area is certainly helpful. Note that other courts might resolve the case differently. Some do not start with the assumption that any permanent obstruction is impermissible, even if there is adequate area left for the purposes for which the easement was created. Gates, however, are frequently tolerated, even without remote control buttons.
Comment 3: The court failed to note that remote controllers have a way of migrating to the far side of the moon whenever they are needed. At least that’s the editor’s experience.
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