Daily Development for Wednesday, March 7, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

EASEMENTS; TERMINATION; CONDITION OF PROPERTY: When an easement holder abandons an easement, it has a duty to remove materials related to its carrying out of its easement rights, and failure to do so constitutes a continuing trespass.

The Manor Enterprises, Inc. v. Vivid, Inc., 596 N.W.2d 828 (Wis. Ct. App. 1999).

This case concerned a sign company's refusal to remove 57 posts on a landowner's property when the sign company removed the sign for which the posts were the supporting structure. The landowner raised claims based on trespass, waste, and bailment.

The sign apparently had been erected by a predecessor of the sign company under a contract to provide an on site advertising sign for the predecessor of the landowner. The two current parties in dispute had each executed extensions of the original agreement after succeeding to the original parties.

Ultimately, the sign company concluded that it was no longer making money on the contract, and, after fruitless negotiations, which apparently left a bitter taste, sued for back rent and replevin of the sign. The court found for the sign company, concluding that it had the right to remove the sign and the support. The sign company then removed the sign, but left the supports. The Wisconsin Court of Appeals held that sign company had committed trespass and had a duty to remove the posts from landowner's property. The court's rationale was that landowner's predecessor had conditioned its consent to the placement of the 57 posts on its property solely for the purpose of supporting a sign. The sign company's removal of the sign terminated the consent, and the sign company's subsequent refusal to remove the posts constituted trespass. It did not matter that the sign company originally had permission to put supports on the land or that the contract was silent as to any duty to remove them.

The court cited extensively from the Restatement on Torts. The Restatement states the general rule that a privileged placement of personal property on the lands of another is a trespass when the property remains there after the license ends. The Restatement, however, states an exception to the general rule there is no trespass when the personal property has resulted from a bailment. Comment n to Section 160 of the Restatement (2nd) of Torts states:

"Bailment of chattel distinguished. If a chattel belonging to the actor which is on land in the possession of another has been bailed to the other by the actor or his predecessor in legal interest, the actor's failure to remove the chattel from the bailee's land is not a trespass, even though at the time of the bailment it was agreed that the bailment was to be terminated and the chattel retaken by the bailor at a given time or at the bailee's request."

The company argued that the sign arrangement had been a bailment and that consequently the exception applied..

The court responded that once the sign company removed the sign, it is doubtful that any bailment that may have existed continued to exist since the only agreement was as to the sign and the supports together. Further, it stated that the probable reason for the exception as to bailment was that the duty to remove bailed property arose as a consequence of the bailment agreement, and here there was no such agreement, so the bailment exception is inapposite.

The court finally stated that the sign company did not commit waste, because only a person with a possessory interest in the estate can commit waste.

Comment 1: Why the fuss about trespass? Probably because there is a statutory remedy with fixed damages and possibly attorney's fees.

Comment 2: But is the court correct in its analysis of the "bailment exception?" Although some bailments arise out of contract, in essence a bailment is a property relationship arising from the consent of the bailee to take possession of property not its own, with the duty to care for it and to return it to the bailor. No formal contract need exist. Perhaps the court is arguing that the exception ought to apply only in those bailment cases in which there is a contract duty on the part of the bailor to remove the property. Certainly the Restatement provides no indication that the exception is that limited, nor for that matter does the Restatement tell us anything about the purpose of the exception.

Comment 3: The court's second rationale that the bailment exception did not arise is even more problematic. It says that if a bailment did arise, it ended when the sign was removed, since the only bailment was as to sign and supports together. Consequently, the exception should not apply. The problem with this reasoning is that the whole purpose of the bailment exception is to operate in circumstances when the bailment relationship has ended, so to say the exception does not apply *because* the relationship has ended is a non sequitur.

The court's argument that there was no bailment of the posts alone similarly strikes the editor as unavailing. If there was a bailment of the sign and the posts, then the original permission to install the posts arose out of that arrangement and there is no reason for the exception not to apply.

Comment 4: Does this case provide any help on the problem of getting a tenant to remove personal property following a lease? Clearly there is no bailment here, and if the leaving of the personal property constitutes a trespass, for which statutory damages can be collected, the landlord has a new weapon.

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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