Daily Development for Friday, October 27, 2006
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri firstname.lastname@example.org
EASEMENTS; CREATION; IMPLIED DEDICATION FROM PLAT: A depiction of an easement of access on a PUD plan is sufficient to establish dedication of the easement under the “implied dedication from plat” doctrine, and such easement may benefit owners of land adjacent to the land depicted on the plan, who were “strangers to the grant” in that they were unrelated to the developers or purchasers of the property subject to the plan.
Barry Simon Developments, Inc., v. Hale, Cas No. ED87452 (Mo. App. 10/24/06)
Developers carried out the development of a residential subdivision. Developers obtained an ordinance from the local city creating a device known locally as a Planned Environmental Unit plan (PEU), described by the court as a procedure that “permits flexibility by adjusting development regulations to particular site conditions.” (Sounds very much like what is generally known as PUD.)
The PEU plan showed common areas as part of the subdivision, and across one portion of the common area there was depicted a fifty foot easement terminating in undeveloped land to the south of the subdivision. This easement apparently was accessed from Eagle Bluff Court - a road depicted on the PEU plan and later developed. An attachment to the PEU plan indicated that Eagle Bluff Court would terminate in a “permanent cul-de-sac on this site.”
The proposed subdivision was carried out. Homeowners bought lots along the cul-de-sac and established homes. Presumably Eagle Bluff Court became a public street. Then Simon bought the 39 acre adjacent to the south of the subdivision, and announced plans for a new subdivision that would be access through the easement, and, of course, also through Eagle Bluff Court.
The horrified residents of Eagle Bluff Court and their association filed suit to block the easement, alleging: (1) the PEU was not a “plat,” and therefore the traditional “dedication by plat” concept was inapplicable. (2) In any event, it was unlawful to establish a public right of way across commonly owned property that is part of a residential subdivision; (3) Simon, a stranger to the prior transaction, has no right to claim the easement under the ancient rule prohibiting the “reservation of easements in strangers;” (4) the language of the PEU plan required that Eagle Bluff Court be a permanent cul-de-sac, and therefore there could not have been an intent to open up this easement opening onto Eagle Bluff Court.
In a brief opinion, the court shot down all the arguments.
The court ruled first that, in Missouri, a PEU plan serves a function similar to a plat when it has sufficient information indicating specific land uses and boundaries, and could be the basis for the implication of an easement. It then concluded that there was no authority prohibiting the creation of an easement across commonly owned property in the original plat, even though, after a subdivision is developed, it might be inappropriate for a homes association to create a new easement without the consent of the common owners. The doctrine of “no reservation in strangers” is generally in disfavor these days (indeed, the Restatement of Servitudes declares it to be dead) .
Finally, the court concluded that the statement that the Eagle Bluff Court would be a permanent cul-de-sac couldn’t possible mean what it said because in the same plan there was an express provision for an easement whose obvious purpose was to provide access to the landlocked 39 acre parcel that Simon now wished to develop. Consequently, this language could not express the city’s intent (the court’s language) as to the working out of the uses of the property.
Comment 1: Although, in some cases, these pronouncements were first impression statements of Missouri law, none of them were particularly surprising. Indeed, the doctrine against reservation in strangers gets batted down every time it is raised. And, since the easement by implied dedication doctrine deals with the probable intent of the grantor, there is no particular reason that the intent be drawn only from a traditional plat map. Also, of course there can be an easement across a common area if it is created in the same document creating the common area. The common owners simply take their interest subject to the easement.
But the editor is bemused by the court’s bluff and abrupt treatment of the “permanent cul-de-sac” language. Clearly the opening up of this easement terminates the “cul-de-sac,” and consequently there was an express contradiction on the face of the PEU. The court pretends that the language for the permanent cul-de-sac can be reconciled with the recognition of the easement, but how can this be? Perhaps there are other facts explaining this conclusion that the court didn’t feel it necessary to put in evidence. Perhaps the court is saying simply that, looked at as a whole, the document’s language protecting the permanency of the cul-de-sac was inherently suspect and anyone reading it should have known so.
Comment 2: Perhaps the homeowners should have directed their energy and their lawsuit money against their own developer, who most likely represented that the cul-de-sac would be permanent, and should have known better. This is not a “latent defect,” since one assumes the PEU plan was a matter of public record, but the editor suspects a court would find that a specific representation by the developer as to the meaning of the PEU likely would be actionable, since the developer certainly was aware of the reasons for the easement and the liklihood of its being opened up.
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