Daily Development for Wednesday, May 10, 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

Here are a couple of easement cases raising interesting scope issues, The first case emphasizes that easements indeed are property interests, and create real, enforceable rights in the property itself not just a good shot at a damages remedy if injury occurs.

The second case indicates that property interests necessarily are tied to property descriptions, and parties should study descriptions carefully at the time the interests are created. Courts imply easements, but not when the written record suggests that the parties indeed had written down their agreement.

EASEMENTS; SCOPE; BOUNDARIES: Where the boundaries of an easement are specifically defined, the dominant estate holder is entitled to the full use of the easement and what is reasonable or necessary is not decisive.

Lamb v. Wyoming Game and Fish Comm., 985 P.2d 433 (Wyo. 1999).

In 1964, the Wyoming Game and Fish Commission purchased two fishing easements from owners of land abutting certain rivers. Acquired for public fishing access, the easements specifically were to "extend from midstream on each of the said streams in both directions to a point fifty feet above and beyond the high water line of each side of both said streams." Over time, the landowners placed assorted structures and objects within the boundaries of the easements. After the Commission requested that the landowners remove the fixtures and objects from the easements, some of the landowners refused and sued the Commission for a declaration of their rights under the easement. The trial court granted summary judgment in favor of the Commission, declared that the dominant estate holder of an easement is entitled to use the full width as a matter of law, and ordered the landowners to remove the items from the easement.

The landowners appealed to the Supreme Court of Wyoming, arguing that the easement should be limited to the area reasonably necessary to walk along the river and fish. The Court rejected that argument and affirmed the judgment of the trial court, holding that where the boundaries of an easement are specifically defined, the dominant estate holder is entitled to the full use of the easement and what is reasonable or necessary is not decisive.

Comment: Compare this case to others in which courts have held, and DIRTers have agreed, that a servient owner has the right to install permanent improvements in a right of way so long as the dominant owner's current use of the enjoyment of the right of way is still protected. How does this case really differ? Is the difference in the definition of what constitutes "fishing?"

EASEMENTS; SCOPE; DESCRIPTION: The breadth and scope of an easement are determined based upon the actual terms of the grant, and courts will not imply easements where the written record is complete.

Van Hook v. Jennings, 983 P.2d 995 (Mont. 1999).

A property owner brought an action to declare the existence and enforceability of an access easement across an adjacent parcel of property, which had been created through reservation by the owner's predecessor in interest when that owner transferred the servient parcel.

The language of the reservation was as follows:

"Said property is subject to a right of way for an existing private road which extends across said property for the purpose of reaching other lands in said Sections 34 and 3. The grantors reserve the right to use the existing private road, which crosses said property, for the use and benefit of Section 3 and the S1/2,, [sic] the NW1/4 of the NE1/4, the NE1/4 of the NW1/4 and the S1/2 of the NW1/4 of Section 34,. . . "

A single road (the "first road") traversed the property and apparently was the "road" referred to in the deed. The parties disputed the right of access over a second road that tintersected with the first road. The plaintiff claimed that the parties had indicated in the deed reservation the intent to create rights in a road network that would provide access to certain identified sections of land. Although the frist road technically provided such access, the second road was necessary as a practical matter for real access to most of one of the sections, due to the mountainous terrain in the area.

The Montana Supreme Court held, 43, that where a reservation of rights consistently described a single "road", rather than multiple roads, and the existing road adequately satisfied each of the criteria used to describe an easement, the easement was limited to the road specifically described. The dissenting judges believed that the real intent of the parties, express on the face of the deed reservation, was to provide practical access to the areas described, and that the best way to accomplish this was to read the term "road" in the reservation to describe all of the existing roads.

Comment 1: It's hard to argue with a decision that forces parties to set forth their intent clearly in documents creating important property rights. It does appear that the grantor got "burned" if indeed the grantor's counsel intended to reserve a right of way in the entire network, but both the grantor and grantor's counsel presumably had the opportunity to communicate prior to the final statement of the agreement, and presumably both new the difference between singular and plural.

The fact that the issue didn't arise until after the grantor had resold the benefitted parcel may lend strength to the servient owner's position that the parties only intended the single road for access.

Comment 2: The court doesn't mention the doctrine of implied easement from preexisting use, although apparently the second road was in existence at the time that the property was severed. Perhaps the fact that the original parties set forth their intentions with respect to one existing road led the plaintiff's counsel here to conclude that there was little hope in arguing for a construction that rights in the second road ought to be implied.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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