Daily Development for Thursday, March 9, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

EASEMENTS; ENFORCEMENT; ENCROACHMENT: Twelve inch encroachment of eaves of newly constructed garage into 30foot city utility easement is de minimis and owners of the servient estate are entitled to permanent injunction preventing city from interfering with construction of the garage.

Fettkether v. City of Readlyn, 595 N.W.2d 807 (Iowa Ct. App. 1999).

Homeowners, brought action against city and its officials for monetary damages and injunction arising from city's issuance of a "stop work" notice concerning a new home under construction. The city building inspector issued the notice after discovering that the homeowners expanded the size of garage footings beyond the original approved site plans. If construction continued, the city inspector concluded that the garage eaves would encroach by twelve inches into an existing 30foot utility easement previously granted by the homeowners.

The homeowner offered to add twelve inches to the other side of the thirty foot easement in order to give the same width to its utility easement. It appears that the homeowners deliberately changed their plans without notifying the city, and were caught during the course of the inspection. With this as a background, the city ultimately decided that it would not permit encroachment of its easement. It did, however, offer to release its easement in exchange for a new eight foot easement on the other side of the existing easement and a payment to the city of $2500. The court's report does not indicate what the $2500 was for perhaps it was for the grief and bureaucratic time occasioned by the sneaky behavior of the homeowner.

The trial court determined that the encroachment did not substantially or materially interfere with the city's use of the utility easement and granted the homeowners a permanent injunction to enjoin the city's interference with construction. The city appealed the decision of the trial court claiming it was unsupported by Iowa law.

The Court of Appeals acknowledged that the principles relied upon by the trial court had not been specifically set out by the Iowa appellate courts, but affirmed the trial court's decision and analysis as sound under existing principles of law. The Court applied a 4part test used ordinarily in cases brought by dominant landowners seeking to enjoin a servient landowner from interfering with easement rights. In such cases a party is entitled to injunctive relief if it shows:

(1) a legal remedy is inadequate and an injunction is necessary to prevent irreparable harm; (2) the encroachment is not substantial; (3) the balancing of interests results in greater inconvenience to one party over the other; and (4) the encroachment is not willful.

The appeals court concluded that the analysis applies equally to cases brought by the servient landowner to enjoin interference by the dominant estate. Applying the above principles, the Court found that the Homeowners proved their burden and affirmed the trial court. The appeals court affirmed the lower court finding that the city was immune from damages liability.

Comment 1: Let's just look at the first part of the court's reasoning: the principle of de minimus encroachments by the servient owner when the dominant objects. Is the court relying upon the correct authority? It is not surprising that there is authority concluding that an encroachment constructed innocently and in good faith, and already concluded, will not be ordered removed when it imposes no significant burden upon the dominant estate.

In Vossen v. Forrester, 963 P.2d 157 (Or. 1998), the DIRT DD for 3/29/99, for instance a court refused to order the removal of an encroachment in an easement, but emphasized that the encroachment had been built innocently and in good faith and involved enormous construction costs. Further, the easement owners were given alternate access and the fundamental right to the integrity of the easement was recognized through a damages claim. (The editor suspected bad faith on the part of the encroacher, but the court found none.)

But the court is going much further here. It is reading the principle to be that a servient owner routinely can intrude upon an easement unless the can prove that the encroachment causes a problem, even when the issue arises before the encroachment has taken place. Is this correct? Or is it a rewriting of the easement?

The editor's views on this were turned around by a discussion on DIRT, where readers pointed out that a servient tenant, by definition, always has the residual right to use the area of the easement for purposes not inconsistent with the dominant tenant's useage. Permanent improvements, of course, present some greater difficulties, but an overhanging eave in any event is not likely to cause any real interference with the City's 30 foot utility easement. The possibility of interference is so remote that the dominant owner ought to have the right to build the overhang and then, if it turns out at some future time that the overhang does interfere, be subject to a removal order at that time.

For a strong statement of the right of the servient tenant, see Montana v. Blount, 504 SE2d 447 (Gt. Ct. App. 1998) (the DIRT DD for 10/27/98) (Servient owner can enjoin dominant owner from removing trees from right of way area where dominant owner cannot demonstrate that existence of trees blocks its anticipated use of the right of way.)

Comment 2: Even if the principle were correct that de minimus encroachments would not be enjoined, how does this justify the court in enjoining a city from enforcing the conditions of its own building permit? Not only is the court rewriting the easement, but it is also confining the police power activities of the city.

Obviously the court suspects that the city was unfairly "beating up" the landowner for trying to sneak through its expanded garage. Is this really the kind of dispute that the courts ought to involve themselves in? There is no question that the landowner was in the wrong right down the line. Whatever happened to the doctrine of "unclean hands?"

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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