Again, the editor has concluded that neither of these tidbits makes a full meal, so they're combined

Again, the editor has concluded that neither of these tidbits makes a full meal, so they're combined.

Daily Development for Wednesday, July 11, 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

VENDOR/PURCHASER; DUTIES OF SELLER; ROADS: Where Seller agrees to "construct a fifty (50) foot wide road for a public and private access road . . . and shall either dedicate said . . . road to public use or provide Buyer [and others] a non exclusive perpetual easement . . . ," Seller's obligation is actually to build a road, not just dedicate an easement, and that road must be fifty feet in width, even if, under county standards, this would require a considerably larger easement dedication.

A & F. Properties, LLC v.Lake Caroline, 775 So. 2d 1276 (Miss. 2000)

The court in fact conceded that the party's agreement as to the width of the road was ambiguous, but upheld the jury's determination that an actual fifty-foot wide road was intended. The Seller had constructed a 28 foot wide road, allowing fifty feet for the public easement. The court noted that it did not matter that the easement had to be wider than fifty feet if the road was dedicated to the public, which was one permitted possibility under the contract language.

Note: The case has an interesting discussion of damages. The jury had found zero damages, which the court found untenable in light of its conclusion that a fifty-foot wide road was intended. It agreed that there might be zero damages if the narrower road was equally valuable to the Buyer as the intended wider road, but indicated that there was no evidence that the road was satisfactory or that plaintiffs were not damaged by the narrower road. The court, therefore, instead of remanding, simply awarded to the plaintiff the undisputed cost of widening the road, rather than the diminution in value of the property without the wider road. It noted, however, that had there been evidence in the case that the narrower road would suffice for plaintiff's needs, and that the fifty-foot requirement "was largely but not entirely vestigial to the benefit of plaintiff's bargain,"

then the court might have accepted the jury's conclusion of zero damages.

Comment: The editor is a bit puzzled by the damages conclusion. One would think that it was the burden of plaintiff to prove damages, including proving that the loss of the wider road actually damaged it to the extent of the cost of widening, instead of some lesser amount. Instead of leaving the burden with the plaintiff, the court concluded that the plaintiff had only to show that the contract provided for fifty feet, and then the defendant had the burden of showing that the narrower road in fact did not lead to damages in the amount of the cost of widening. Curious.

EASEMENTS; SCOPE; RELOCATION; EASEMENTS BY NECESSITY: Servient tenant under easement by necessity has right to relocate utility easement at its own expense when roadway in which utility easement existed is abandoned, and the servient tenement is render significantly less valuable as a consequence of the original location..

Huggins v. Wright, 774 So. 2d 408 (Miss. 2000)

In an opinion uncharacteristic of this court, which generally is very thorough as to the relevant facts and has been known to fill in a lot of irrelevant facts to make a good story, the court here tells us very little about the underlying facts so little that it is hard to understand fully the holding.

Two tracts were sold successively by a common grantor. Huggins got one tract, and Wright got the other two months later. At the time of severance, there was an old road that had been used traditionally to obtain access to Huggins tract. This roadway divided the Wright property in half. It is not clear whether this roadway was used or was intended to be used in the future for access to Huggins' property. If it was, then an easement by implication would arise for access, and not an easement by necessity.

A dispute arose between the parties as to the location of electric and water utilities serving Huggins' property. Wright did not want these utilities running across the center of Wright's property. Here is where the greatest ambiguity arises. The court does not tell us whether the road was still in use and also does not tell us whether there were existing utilities in the roadbed. But it does speak consistently about the "relocation" of the utility easement, which would suggest that there had already been some acquiescence in the notion that an easement by necessity existed and some utilities had already been placed in the roadbed. The presence of the utilities in this roadbed would not appear to be a significant difficulty for Wright if the road was still in use, and the court appears to concur in Wright's claim that the presence of utilities at that location caused an inconvenience for Wright. This suggests that the roadway had been abandoned.

The case is significant because of its apparent holding that the utilities could be relocated at the behest of the servient owner. Although the servient owner has the right first to declare the location of an easement by necessity, and the dominant tenant must accept such location as reasonable, many decisions appear to assume that this location is permanent. Here, the Mississippi court, citing 1989 precedent, concludes that an easement by necessity, at least, can be relocated by the servient owner, at its expense, if the location proves to be a significant problem at some future time.

The case further holds, over the servient owner’s objection, that the servient owner has the burden to pay for the relocation. This would not be surprising if the utilities in fact were in place. But, as indicated, the opinion is somewhat vague on that point. If, in fact, the "relocation" was just a change from one hypothesized location to another, and the dominant tenant had expended no funds to locate the easement originally, then it would seem appropriate for the dominant tenant to be responsible for the cost of constructing and maintaining the easement.

Comment: The Restatement of Servitudes posits that courts should always have the equitable power to relocate easements. This case appears to be consistent with that position, at least as to easements by necessity. This rule is somewhat of a departure from the existing law in many jurisdictions, where courts would hold that an easement, once created, inheres in a specific location and cannot be relocated without the dominant tenant's consent (which was lacking here.) Is the Restatement position a good idea? The editor is still mulling the situation. The editor is of the view that generally speaking the market will resolve these issues if the law is clear if we don't give both sides a fighting chance for a court to exercise or withhold discretion as to whether the easement will be honored as originally created. But, even with very clear rules, there may be some circumstances in which equity would justify a relocation, paid for by the person requesting it. Still mulling . . . .

Huggins v. Wright, 774 So. 2d 408 (Miss. 2000)

Two tracts were sold successively by a common grantor. Huggins got one tract, and Wright got the other two months later. At the time of severance, there was an old road that had been used traditionally to obtain access to Huggins tract. This roadway divided the Wright property in half. It is not clear whether this roadway was used or was intended to be used in the future for access to Huggins' property. If it was, then an easement by implication would have arisen for access, and not an easement by necessity.

The case further holds, over the servient owner's objection, that the servient owner has the burden to pay for the relocation. This would not be surprising if the utilities in fact were in place. But, as indicated, the opinion is somewhat vague on that point. If, in fact, the "relocation" was just a change from one hypothesized location to another, and the dominant tenant had expended no funds to locate the easement originally, then it would seem appropriate for the dominant tenant to be responsible for the cost of constructing and maintaining the easement.

Comment 1: The editor first wishes to call attention to one rule apparently assumed by the Mississippi court here - that an easement of necessity can arise for utility lines at all. This rule is recognized in other cases, but is not uniform. Some courts limit the easement by necessity to simple ingress and egress. The editor likes the broader rule followed here.

Comment 2: The Restatement of Servitudes posits that courts should always have the equitable power to relocate easements. This case appears to be consistent with that position, at least as to easements by necessity. This rule is somewhat of a departure from the existing law in many jurisdictions, where courts would hold that an easement, once created, inheres in a specific location and cannot be relocated without the dominant tenant's consent (which was lacking here.) Is the Restatement position a good idea? The editor is still mulling the situation. The editor is of the view that generally speaking the market will resolve these issues if the law is clear if we don't give both sides a fighting chance for a court to exercise or withhold discretion as to whether the easement will be honored as originally created. But, even with very clear rules, there may be some circumstances in which equity would justify a relocation, paid for by the person requesting it. Still mulling . . .

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

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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