Daily Development for Wednesday, November 9,
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; INTERFERENCE; PUBLIC RIGHT OF WAY: A easement granted to a public entity “for purposes of relocating, establishing, opening and improving Dan Hoey Road” cannot be used by an abutting owner to develop access roads, utilities, sidewalks, landscaping and other facilities from the road to the owner’s development, even when the City consents.
Blackhawk Dev. Corp. v. Village of Dexter, 700 N.W. 2d 364 (Mich. 2005)
The city, after first contemplating ownership of the land in question by eminent domain, eventually entered into a contract with Trust, the owner and the plaintiff in this action, to acquire an easement. Apparently significant to the court was the fact that the contract provided that the easement was to be for “public roadway purposes . . . ,” even though the actual easement grant document described the purpose of the easement as set forth above in the caption - for “relocating, establishing, opening and improving” an identified road. In the end, the road was moved some distance to the south and improved with a hard surface.
The Trust then sold to Kingsley what the court describes as “the burdened parcel,” who built a commercial project on the property, but left undeveloped the area of the easement not already committed to the roadway. (Although the court refers to Kingsley’s property as “the burdened property,” apparently the Trust must have retained some property that was subject to the easement - else it would hardly have standing to be objecting to the use of the easement, as it did here.)
Kingsley then acquired additional land that had been abutting the old road, but now was separated from the new road by the balance of the undeveloped easement area. He proposed to expand his commercial development, using portions of the easement area for constructing access drives, building a pond (characterized by the dissent as nothing more than a “drainage facility,” installing sewer and other utility facilities, installing lights, and making certain other developments. After some negotiation back and forth, the City consented to Kingsley’s proposal. Any developments on the parcel not directly related to access to the road would be dedicated to the City as public improvements. There is some argument that a City employee erred in concluding that the proposal had to be granted in part because Kingsley would otherwise have been landlocked, but it is not clear that the City, even at time of trial, was in opposition to Kingsley’s proposal.
The party who did oppose Kingsley’s use of the easement area for this purpose was the Trust, that had initially granted the easement to the City and then sold the burdened parcel to Kingsley. It argued that the use of the property for utilities and various other public improvements was not use of the property for expansion and improvement of a public road. It even argued that using the easement property for access roads to the new roadway (originally, remember, abutting Kingsley’s property) was not a “public road use.”
The court stated the principles that the conveyance of an easement gives the grantee all rights incident or necessary to the reasonable and proper enjoyment of the easement, but also that the use made by the easement owner must be reasonably necessary and convenient to the proper enjoyment of the easement, with as little burden as possible to the land.” The court saw these questions as two sides of the same issue - a use that is not reasonably incident or necessary to the easement purpose necessarily overburdens the servient estate. But even if the actions are reasonably necessary, the may not be permitted if they *unreasonably burden the servient estate anyway.*
Much of the attention of the parties focus ed on whether the challenged activities were “improvements,” since arguably they did not involve relocating the roadway - a project that was completed. The court completed that the various improvements did nothing to improve Dan Hoey Road itself, but rather improved the adjacent property or the access ways that were to be built. Even though the improvements were to be dedicated to the public as public improvements, the court contended, this made no difference. Even if the City built them, the majority stated, it still would analyze whether they constituted improvements to the public Road, and the same analysis would occur. [The dissent strongly disputes this conclusion.]
The dissent also argued that an access road is a use of the road. But the majority concluded that these private access roads did not benefit the road, but benefitted the owner of the adjacent property.
The court then indulges in a restatement of some principles dear to the editor’s heart when it states that a party may not unilaterally alter an easement. It also states that the language of the original agreement, discussing the purpose of the easement to be “a public roadway” should not be taken into account, since the parties elected to use more precise language [in its view} in the easement document itself. The court also rejected the notion that the interpretation of the scope of the easement ought to be looser because the easement was held by a public entity. Although it had early acknowledged that a right of way for a public road implicitly included the right to lay utilities in the road, it concluded that this was because such use was inherent in the nature of the public road, and not because a public agency owned the easement.
Comment 1:Th court is rather vague about some of the intended improvements, and we must set aside completely its statement that Kingsley got title to the “burdened parcel,” since the whole case makes no sense if that were literally true.
But making due allowances for these issues, the editor still believes that the decision is wrong. First, it is wrong in the fundamental premise that a the dominant owner of an easement must limit its activities to only those minimally necessary to achieve its purposes and, even then must alter its behavior so as not to interfere with the servient tenant’s interests. This is not how the balance generally is perceived. An easement is a grant of use rights, and the dominant tenant has a reasonable right to carry out those rights. If these activities restrict the usability of the parcel for the servient tenant - normally that’s not considered particularly significant. Perhaps nuisance standards apply, and if that’s all the court means by “reasonably” limiting the dominant activity, that would be all right. But the whole sense of the court is that an easement usage must be as minimal as possible to protect the expectations of the servient owner. This is not the editor’s view of
the balance struck in other cases.
Comment 2: An example of that approach is the court’s insistence that even an access road reconnecting the parcel that was once adjacent to the old road is not part of the relocation of the road. That strikes the editor as excessively narrow. In this case, the City was grudgingly going along with Kingsley’s case, but clearly, at least based upon the testimony analyzed by the court, the city did not go overboard embracing Kingsley’s purposes as congruent with public policy.
Justice Kelly’s dissenting opinion is worth reading. Not only do her views correspond to those of the editor (always a good start), they stress that the whole easement area was acquired in perpetuity by the city - much more than that necessary, and consequently, Justice Kelly argues, the parties must have anticipated that something would happen on the rest of the property, and not just within the roadbed.
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