Daily Development for
Tuesday, January 16, 2001
By: Patrick A. Randolph,
Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu
EASEMENTS; SCOPE;
MAINTENANCE RESPONSIBILITIES: Under easement to construct a dam and impound waters,
the dominant tenant not only has the duty to maintain the dam structure, but
also the duty to maintain the water quality in the lake created by the dam for
the benefit of neighboring landowners.
Fowler v. Lincoln County
Conservation District, 2000 WL 1811570 (Okla.12/12/2000) (Not yet approved for
final printing).
The easement provided for
a right for the construction, operation, maintenance and inspection: of a dam
and for the "permanent storage and temporary detention of any waters that
are impounded, stored or detained" by the dam. It also provided that the
landowners could use the land at any time, in any manner and for any purposes
that did not interfere with the construction, operation, maintenance and
inspection of the works of improvement.
The court did not recite
any language expressly imposing upon the district the obligation to maintain
the dam or the waters it impounded, but it noted that the District conceded
that the construction of the dam carried with it the responsibility to maintain
the dam and (importantly) that such obligation arose as a matter of contract
from the granting of the right to inspect and maintain.
The plaintiffs argued that
the contract obligation under the easement went even further, and imposed upon
the District the obligation to maintain the quality of the water. It alleged
that the failure of the District to monitor the quality of the water resulted
in the development in the water of a dangerous algae that proved fatal to
livestock who drank water from the lake and rendered the lake unsafe for
recreational activities.
The court ruled that the
trial court had discretion to conclude that the easement agreement was
ambiguous as to whether the contractual undertaking of the District included
the obligation to maintain the water quality and to permit the jury to evaluate
parole evidence as to the meaning of the contract in that regard. Comment 1:
The District clearly had the responsibility, as owner of the dam, to maintain
it so as not to cause damage to those nearby. This responsibility arose on the
basis of owner's liability for personal injury and on the basis of nuisance law
with respect to injury to the use and enjoyment of neighboring land. The editor
sees no reason to conclude that the creation of a right to maintain a dam
structure imposes any contractual responsibility to maintain it so that
neighboring owners can enjoy the benefits of the lake that is created.
Let us assume, for
instance, that the district concludes that it no longer wishes to invest in the
dam, since flood control is being adequately carried out through other devices
developed after the dam was built. Does it have the obligation to keep the dam
in perfect condition so that the lake behind it remains the same size? Does it
have an obligation to keep the dam looking beautiful so that the neighbors
don't have to look at an algae covered piece of concrete? Must it remove
graffiti? A contractual duty to
maintain would suggest that there is some affirmative duty of maintenance that
the contracting parties had in mind at the time the easement was created. The
editor submits that, based upon what the court tells us here there was no such
understanding.
Comment 2: A related
question is the standing of the neighboring landowners to demand that the
District carry out its maintenance program. They had the right to use the land
in any manner that did not interfere with the "construction, operation,
maintenance and inspection"of the dam. This probably did give
them the right to use the water impounded by the dam to water their livestock. But
why does it give them a guarantee that the District will provide a lake
suitable for drinking by their livestock? Why not impose the duty of water monitoring
on the landowners? Or at least say that the landowners water the stock at their
own risk, just as they would if the lake was a natural water source.
Comment 3: Unless the
easement agreement contained other more specific language that the court
(incredibly) did not include, this opinion establishes dangerous precedent that
could spill over into many other easement settings. As a general principle,
where servient owners find useful applications of public works constructed on
easement property, do they then derive a permanent right to insist that the
public support those rights? Maybe in Oklahoma.
Comment 4: John Hastie, of
the Oklahoma Bar, who contributed the information of this case, adds the
following comment: "In light of this case, one wonders if a simple
modification of the terms of the easement limiting the obligations of the
District to the maintenance of the dam will hereafter be sufficient. If the
court recognizes the impact of the polluted water to be the responsibility of a
governmental action, an argument argument can be made that a taking arises at
the time the pollution occurs and the measure of value 9or damages) might be
the lost use of the recreational reservoir. . . it might not be difficult to
create a case in which the District will be held liable for failure to maintain
the "ole swimming hole" developed with taxpayer funds.
Readers are urged to respond, comment, and argue with the daily
development or the editor's comments about it.
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