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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