Daily Development for Friday, May 30, 2003
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

EASEMENTS; SCOPE; EASEMENTS ESTABLISHED BY EMINENT DOMAIN: Where public agency acquired an easement to provide access that had been destroyed by highway construction project to three identified lots, scope of easement is not necessarily limited to those lots, and may be extended to an additional adjacent lot where practicalities dictate and there is no physical surcharge on servient parcel.

Bateman v. Board of Appeals of Georgetown, 775 N.E.2d 1276 (Mass.App.Ct. 2002).

In 1971, in conjunction with work done on an interstate highway, the government acquired portions of three adjacent lots.  The acquisition of this property together with the construction of the highway, resulted in these three lots being "landlocked."  Consequently, the  government also condemned a forty foot wide easement across property owned by another party - Bateman, to provide access to these three lots.

Specifically, the easement was taken by the Department of Public works "in behalf of owners of land whose rights of access [to Jewett Street] and egress therefrom would otherwise become inoperative due to the limited access provisions of said State highway layout, and consist[s] of the right to enter on said parcels of land at any time to construct, . . .  maintain and use, roadways . . .  as the various persons in whose behalf said easements are taken may require."   The easement . . . further stated that said parcel is "hereby taken in behalf of Philip Belkin, Arnold Belkin and Barnet Barnstein," the then owners of the three parcels.  Later one of the Belkins acquired each of these three parcels.

In addition to the three parcels, Belkin acquired a fourth parcel - the "upper parcel."  This parcel was not mentioned in the easement taken by the government.  A nineteenth century granted and recorded twenty foot easement, running parallel to the forty foot easement taken by the government, provided access for this parcel.

Belkin desired to develop the four parcels together into an equestrian facility, and applied for a variance.  The plans for the facility indicated that the facility would encompass all four parcels and the access to the entire facility would be on the forty foot easement originally acquired by the government in 1971.

Bateman objected that to extend the easement right to the fourth parcel violated a fundamental rule of appurtenant easements that stated that additional property cannot be added to the dominant parcel.  The rule is quite clear that any use of the easement for such additional land would be a surcharge whether or not there is any increased physical impact on the easement as a consequence of such use.

The trial court found that Belkin would use the easement, and consequently granted the variance.  On appeal, Held: Affirmed.

Although the Massachusetts Court of Appeals admitted that the general rule as to easements was as contended by Batemans, it cited prior authority for the point that the ordinary rules of easements do not apply to easements acquired by eminent domain.  The only question, it said, was what was the intent of the government in acquiring the easement.

     "The principles of interpretation designed to give effect to the      express or implied intent of parties contracting for or acquiring an      interest in land, however, are, in general, inapplicable to eminent      domain proceedings. . . . The Batemans never negotiated the      original easement or staked out the extent of their rights;  rather,      the Commonwealth took the easement in the Batemans' land to      remedy the elimination of access and egress caused by the I-95 takings. . . .

The basic question where the interest was acquired by eminent domain is what interest the taking authority intended to acquire [and in our case, convey] as shown by the relevant documents."

Although this appears to be the legal principle that the court viewed as dispositive, it acknowledged that it was "less clear" that the Commonwealth had intended to benefit property other than the three lots that were its focus in 1971.  Nevertheless, it noted that the impact on Batemans of permitting the use of the easement to benefit the upper parcel would be negligible, since immediately adjacent to the forty foot easement lay the right of way, unrestricted as to character of use, for the upper parcel.

Consequently, the court concluded that as a practical matter Belkins were not injured by the extension of the use of the forty foot easement to the additional parcel, and this was apparently consistent with the intent of the state in the condemnation of that easement thirty years earlier.

Comment 1: At first blush, the court's reasoning is quite suspect.  It is quite clear that the government never had in mind benefitting any parcels other than the parcels it named.  The additional parcel at the time of the condemnation of the forty foot easement was owned by a different party and already served by an easement.  There was no earthly purpose that the government could have in benefitting that parcel.  By parallel reasoning, of course, the applicants could have attached the balance of the State of Massachusetts to their parcel, and the only question the court would ask was whether there was an increase in burden.

On the other hand, the easement was intended to replace access that had been available from the adjacency of the benefitted lots to a public right of way.  Had one of those benefitted parties then acquired the upper lot, they certainly could have accessed that lot from the public right of way.  If the easement is intended as a replacement for that access, then there is some merit to the court's approach.

Comment 2: The author has never seen a case like this.  It makes for an interesting footnote in easement law.  It is sufficiently narrow in scope that it does no great injustice to the fabric of the law, and in fact is an intriguing and arguably sensible variation.

Readers are encouraged to respond to or criticize this posting.

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