Daily Development for Tuesday, March 13, 2001

EASEMENTS; SCOPE; DEFINED BY CUSTOM: Scope of broadly stated easement rights can be defined by custom and usage.

Mason v. Garrison, 998 P.2d 531 (Mont. 2000).

The owner of a group of subdivision lots near a lake was having trouble selling some of them because they lacked access to the lake.

Consequently, the owner elected to create an easement in certain of its lakefront lots in favor of the lots that had no access. The first easement was included in a subdivision deed in 1969. The easement read as follows:

[A] perpetual easement over and across the existing roadways on Lots 3 and 4 . . . (excepting private driveways) for ingress and egress to and from Flathead Lake and the perpetual right and easement to use the existing dock, parking lot, swimming areas and swimming deck thereon, which easement is not exclusive . . ."

The subdividers actually graded and improved the area to facilitate access to the lake, and over the years the owners of benefitted lots made extensive use of the lake, including socializing and picnicking. One major use was as a boat launch facility, using the flat sloping shoreline to run trailers with boats into the lake and launch the boats.

Ultimately, lots 3 and 4 were resurveyed, resubdivided, and sold, expressly subject to the easement.

In 1985, the dock was severely damaged in a storm. The owner of lot four ultimately removed the remains of the dock, although its "footprint"

continued to be visible. In 1990, the owner of lot r constructed a new dock, and soon thereafter sold to Garrison.

Thereafter, Garrison acquired lot 4 with actual knowledge of the easement. Garrison built improvements in the easement area that interfered with the use of the area for access and boat launching and permitted his six German Shepherd dogs to run loose in the easement.

The dogs had attitudes that also interfered with a pleasant recreational atmosphere about the place.

When a lawsuit eventuated between Garrison and the dominant easement holders, Garrison argued first that the uses for which they contended exceeded the terms of the original easement. The court responded that vague statements of easement rights can be defined by custom and usage, as occurred here. The overall purpose of the creation of the rights was to provide general access to the lakefront for a variety of activities generally carried out at such lakefront access areas, and the fact that the easement did not identify, for instance, picnicking, boat launching, and partying as part of the easement did not mean that such uses were excluded.

Comment: It may be relevant here that Garrison had actual knowledge of the scope of usage prior to his taking title. He had no argument that he could rely on the somewhat narrower language that appeared in documents in the chain of title.

EASEMENTS; TERMINATION: Destruction of a boat dock does not terminate an easement to use the dock, and the benefitted owners can rebuild the dock.

Mason v. Garrison, 998 P.2d 531 (Mont. 2000).

The facts underlying this case are set forth under the heading:

"Easements; Scope; Defined by Custom." This aspect of the case addresses the second issue in dispute the question of whether the dominant owners continued to have the right to benefit from a dock located at the easement area.

The landowners, apparently, were not arguing that they had the right to use Garrison's dock, but that they had the right to construct and maintain a dock of a quality and location similar to that which had been there before. Garrison nevertheless defended on the grounds that the dock had been destroyed and the ordinary rule is that an easement in an improvement disappears when the improvement disappears.

The court, relying heavily on the Bruce and Ely Treatise, referring to these illustrious DIRTers as "leading commentators," stated that this rule does not apply when the fundamental purpose of the easement grant is to give a use right in the underlying property, rather than a given improvement. Here the court concluded that was the intent of the parties, even though the easement had referred expressly to "the existing dock."

Apparently the court viewed this reference as defining the scope of the dockage that could be used, rather than limiting the usage only to that dock, so long as it existed.

The court also commented that even if the rule concerning destruction of easements did apply, it should not apply here, where the servient tenant himself (Garrison's predecessor), and destroyed the improvement supporting the easement. The court commented that deliberate destruction of an easement property would not destroy the easement, even if it did inhere in the improvement itself.

Comment 1: The statement of the rule that an easement can be in the area around and beneath an improvement make a lot of sense, and conceivably ought to be invoked here in light of the fact that the easement was drafted by the predecessors in interest to the grantor and inserted by uniform language in a group of subdivision lot deeds. Such circumstances might lead a court to look past the niceties of close interpretation and to look for overall intent. Certainly there was little in the deed to preclude entirely the notion that the property could be used for the construction of a dock. Had there been no dock, and no mention of a dock, then it is quite possible that the other language of the easement might have supported the construction of a dock.

The only question, really, is whether mentioning the existing dock reduces the rights that otherwise be created so as to limit the dockage rights to the existing dock. The editor agrees with the court that there was no good reason to so construe the grant.

Comment 2: The editor, however, disagrees with the court regarding the fullest implications of the second, alternative holding, suggesting that even if the easement had been tied to the continued existence of the dock, it did not disappear when the dock disappeared. There is authority, with which the editor agrees, that an owner who has no further use for a building should be free to destroy that building even if it supports features in which third parties have an easement. Of course, the parties could provide otherwise, but the most reasonable construction of most such situations is that a servient owner should not be required to maintain or rebuild a structure simply for the purposes of maintaining support for a third part easement.

In such cases, the editor thinks that the most likely intent of the parties who created the easement is that the easement exists only so long as the servient owner maintains the structure, and that if the servient owner, for good and sufficient reasons, concludes that there is a need to remove the structure, he can do so.

Here, the dock had been rendered useless due to a storm. The then owner of the property elected to make the property cleaner, and probably safer, by removing the hulk of the dock. He did not remove the dock for the purpose of frustrating the easement rights of the benefitted parcels.

Although the editor concurs that, in the facts of this case, there was an easement in the land, and not in the dock, had there been an easement only in the dock, the editor believes that it should have ended when the dock was destroyed.

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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