Daily Development for Monday, February 1, 2010
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri

EASEMENTS; USE; IMPLIED EASEMENTS; CHANGES IN PURPOSE: Dominant owner of implied easement developed at time when the dominant and servient tenements were both agricultural in character may use the easement for residential purposes and, in connection therewith, install underground utilities within the easement boundaries.

Stroda v. Joice Holdings LLC, 288 Kan. 718, 207 P.3d 223 (2009)

There has an old farmhouse on the dominant tenement, abandoned in 1957, and there had been a granted easement running to that house.  But the same party acquired both dominant and servient tenements, and thus that easement was destroyed by merger.  The road continued to exist.

Subsequently the common owner of the parcels died and devised each of the parcels to different relatives.  Through further transactions, the parcels passed into the hands of others, and the owner of the former dominant parcel, grandson of the party in whom the easement had merged, argued that the easement had become an implied easement when she died and divided the two parcels between two devisees.  The required “quasi easement” was the old road to the then unused farmhouse, which apparently had been used for farm access.  He further argued that the uses of implied easements are not limited to those uses existing at the time the easements arise, but can be expanded into foreseeable new uses as time goes on.

Most of the discussion by the court here deals with interpretations of the first Restatement of Property, since Kansas precedent had discussed that Restatement.  Only at the end does the court acknowledge the existence of the new Restatement, and states that its outcome is consistent with that authority as well.

The court drew a distinction between prescriptive and granted easement on one side and implied easements on the other.  As to implied easements, the court stated, there is no specific language defining permitted uses and no specific conduct either.  Rather, the presence of the preexisting use of the easement is relevant only to determine that, at the time of the easement’s arising, there was some reasonable necessity that drives the court to conclude that the parties probably intended and easement.  It refuses to look to those preexisting uses as defining future uses.

Consequently, where residential use of the easement was a foreseeable future use, it matters not that there was no residential use at the time the easement was created.  It was something the parties likely would have covered had they actually written the easement.  As to the utilities, the court’s treatment is quite short.  If the easement can be used for residential purposes, then, in the modern world, it must be permitted to install underground utilities, at least, in the easement area, since otherwise the residential purposes would have no meaning.

Comment: One cavil that the editor has with the court is the attempt to apply different reasoning to implied easements and easements by grant.  The general approach is to permit granted easement to expand to meet new uses demanded by the modern world, even if such uses might not even have been conceivable to the original parties.  Thus, a cart path for a slaughter house can become a paved access for reasonably heavy industrial equipment, even when self propelled vehicles could not have been imagined by the original drafters.   Of course, where the original granted easement states specific limitations on use, then they will be honored.  In this way granted easements may differ from implied easements, as the latter contain no express limitations because they are not in writing.  But both types of easements are generally viewed as accommodating reasonable expansion requirements, where prescriptive easements are more narrow.

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