Daily Development for Tuesday, July 6, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu
EASEMENTS; SCOPE; RELOCATION: Massachusetts adopts new Restatement approach
permitting judicial relocation of easements.
M.P.M. Builders v. Dwyer, 809 N.E. 2d 1053 (Mass. 2004)
Dwyer’s 1941 deed to his property included the express grant of an easement
across an adjacent property now owned by MPM. The grant expressly provided for
an easement across an existing “cartway” path. The easement “branched” to
include access to Dwyer’s property at three points.
MPM obtained a permit to subdivide its property into seven building lots, but
the easement interfered with development of three of the lots. It proposed to
construct two new easements across its property that would provide Dwyer with
access at approximately the same points of contact as the existing easement. It
agreed to make easement ways that were “as convenient . . . as the existing
cartway.”
Dwyer objected to the relocation of the easement way, stating that he preferred
the same access that he had enjoyed for 62 years. MPM sought a judicial
determination that it had the right to relocate the easement, citing the
language of the new Restatement (Third) of Property (Servitudes), Sec. 4.8(3),
which states:
“Unless expressly denied by the terms of an easement . . . the owner of the
servient estate is entitled to make reasonable changes in the location or
dimensions of an easement, at the servient owner’s expense, to permit normal use
or development of the servient estate, but only if the changes do not (a)
significantly lessen the utility of the easement, (b) increase the burdens on
the owner of the easement in its use and enjoyment, or (c) frustrate the purpose
for which the easement was created.”
The trial court denied relief, but, on appeal, the Massachusetts high court
adopted the Restatement rule and remanded for a determination of its application
in this case. The Massachusetts court noted that it had established earlier that
a dominant owner of an easement could not relocate the easement for its
convenience. It further concluded that the existing common law rule in the state
also precluded the servient owner from relocating the easement, but it elected
to change that rule in favor of the Restatement approach. It acknowledged that
in adopting this rule, it was departing from the established majority position,
but it noted that several other courts had already elected to follow the
Restatement, citing Roaring Fork Golf Club, L.P. v. St. Judes Co., 36 P.3d 1229
(Col. 2001) (The DIRT DD for 4/08/02) (requiring advance judicial approval to
relocate); Lewis v. Young, 682 N.Y.S. 2d 657 (N.Y. 1998) (The DIRT DD for
(applicable only to prescriptive easements and other ea
sements not expressly defined in grant); Goodwin v. Johnson, 591 S.E. 2d 34
(S.C. App. 2003) (applying principle only to easements by necessity.)
The court acknowledged that “only two states” - Georgia and Washington have
expressly refused to follow the Restatement rule. Herren v. Pettengill, 538 S.E.
2d 735 (Ga. 2000); MacMeekin v. Lou Income Hous. Inst.., Inc., 45 P.3d 570
(Wash. App. 2000) (the DIRT DD for 5/3/02). It fails to note that in fact “only
one state” - Colorado - had applied the Restatement to undo express identified
easements prior to its decision here. It also fails to discuss Bubis v. Kassin,
353 N.J. Super. 415, 803 A.2d 146 (App. Div. 2002) (the DIRT DD for 2/25/03),
which refuses to permit judicial modification of easements, but notes that
courts can, in the appropriate case, deny injunctive relief to prevent
interference with an easement on a temporary basis, reserving the right to
restore the easement to its place at another time.
In response to the dominant owner’s argument that it was interfering with an
affirmative right in property, the court stated that an easement has never been
anything more than a right of use, rather than a right of possession, and to
give the easement definite and inviolable dimensions would change it into a
right of possession. It’s logic breaks down, however, when it concedes, as does
the Restatement, that if the agreement provides expressly for no relocation,
then courts will honor that right. Surely such easements containing such
protective language are not thus rendered “possessory” in character, are they?
Further, it might be noted that earlier easements that did not express the
specific intent of the parties that the easements could not be modified or
relocated failed to do so because of the established law that modification or
relocation were not permitted. Such language would have been redundant, and its
absence certainly could not be viewed as an invitation by the pa rties to permit
judicial interference with the rights they created.
Like the Colorado court, the Massachusetts court refuses to permit servient
tenants to unilaterally relocate easements. It requires that parties desiring
such relocation seek judicial approval through a declaratory judgment proceeding
before moving ahead.
Comment 1: To adopt the rule of this case prospectively would, of course, do
little harm to vested expectations. It simply would add another burden to
lawyers drafting easement agreements to negotiate whether to authorize
subsequent modification. But the court here does more, and applies the
Restatement rule to existing easements. In the editor’s view, this clearly
denies the property rights bought and paid for by centuries of dominant tenants.
The editor ranted about this issue in his comments to the Roaring Fork case, and
the editor repeats the rant in the next succeeding comments here, hopeful that
other courts may hear it more clearly than the Massachusetts court did.
Comment 2: In the editor's view, an easement is an interest in land that can be
modified by agreement, but not by theft. Where there never was a clear
agreement, such as in the case of easements by prescription or necessity, the
editor has less concern about permitting judicial modification, although even in
these cases this would be a change in the common law rule, and would disrupt the
reasonable expectations of parties who had invested in the property in the
expectation of enjoying the easement in its original location.
Comment 3: The limitations on the equitable discretion to modify stated in the
Restatement of course have the scent of reasonableness. What’s wrong with the
courts acting only when there is no reasonable basis to conclude that the
purpose of the easement will be significantly frustrated? If the editor were
confident that courts are always right about what's "reasonable" and what's
"significant," and if dominant owners were always wrong, then the editor would
be inclined to agree with the Restatement approach. But the editor lacks that
confidence. Thirty years of studying judicial opinions concerning real estate
transactions have convinced the editor that courts frequently lack the business
sophistication to value properly the rights that the parties to these
transactions have bargained hard and paid well to create.
The number of cases where modification is necessary is small. Within that
universe, the number in which the market will not resolve the problem, given
time and backed by the certainty that the courts will not provide an "easy out"
if bargaining fails, is even smaller. Are the interests served by judicial
meddling in these cases when the cost is uncertainty of legal rights which will
lead to increased litigation and fewer bargained-out disputes throughout the
marketplace?
As the editor lacks the confidence that the Restatement authors have that equity
courts really "do equity," the editor would prefer to preserve property rights
and leave the issue with the market. Where really significant public interests
are at stake, we have the eminent domain option. Otherwise, the "equity" that's
being doled out is making one party richer and one party poorer.
Comment 4: If someone is the outright owner of a parcel of property, and another
wishes to use all or a portion of that property for a very profitable use, the
court will not intervene and permit that use when the owner refuses to permit
it, even if the owner would suffer no significant loss. That's today's law. It's
called the principle of "private property." At least until the next Restatement
is written(?)
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