Daily Development for Tuesday, March 28, 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; SCOPE: An easement for access and egress authorizes the owner of the dominant estate to construct a road thereon, including the filling in of wetlands but does not entitle the owner of the dominant estate to install utility lines within the easement.

Hunter v. Keys, 600 N.W.2d 269 (Wis. Ct. App. 1999).

The easement in question was an easement of reservation providing access to an otherwise landlocked parcel. The court also permitted the owner of the servient tenement to maintain a septic system within the easement area, since it would be under the roadway and would not interfere with construction. Even a physical intrusion is permitted if the rights granted under the easement are not disturbed.

Comment 1: The first holding that the grant of an easement includes the right to construct an adequate road, is certainly consistent with authority. In a case such as this, where wetlands are involved, it is likely that, due to environmental considerations, the ability of the servient owner to itself fill in wetlands on its property would be reduced as a consequence of the rights granted to the dominant owner. This is a question that lawyers might be wise to discuss with their clients before rights of way are created. Wetlands often don't look very "wet," and consequently parties don't always think about such issues when easement rights are conferred..

Comment 2: The second issue is problematic for a number of reasons. First, the dominant property in question was landlocked, and the easement was created by dividing a larger lot into two parcels. Hence, had there been no express easement, there would have been an easement of access by necessity. But, without the ability to extend necessary utilities to the property, the dominant owner still has property that is undevelopable. In modern times, it would seem that courts should look more carefully at the proposition that, at least where imminent development is anticipated, the circumstances that give rise to an easement of access by necessity ought also to give rise to an easement for utilities.

Comment 3: Where rights of way are obtained by public agencies, the developing law, both in the statutes and in the case law, is that such an easement necessarily contemplates that underground public utilities can be laid beneath the road surface. Parties dealing with public agencies ought to keep this principle in mind, as it affects the ability of the servient tenant to cross under the roadway with its own underground installations and may increase the burden on the servient through increased maintenance activities as the city looks after its utilities. Further, the new federal telecommunications statutes give telecommunications companies the right to use these same rights of way for their own activities, thus depriving the servient of potential financial opportunities in dealing with the telecommunications companies.

The upshot is that the simple acquisition of a right of way is likely to devalue the servient property more, and consequently a higher price should be paid for such acquisition. Bargain hard. The loss of telecommunications opportunities is unlikely to be taken account very much in condemnation, but perhaps, in the appropriate case, where development is imminent, the overall loss in property value conceivably could reflect such lost opportunity.

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