Daily Development for Thursday, September 9, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu
EASEMENTS; RIGHTS OF SERVIENT OWNERS; SPEED BUMPS: Where servient estate owner
constructs speed bumps upon ingress and egress easement shared by dominant and
servient estate owners, the speed bumps do not substantially interfere with the
dominant estate owner’s use of the easement and the dominant estate owner is
enjoined from removing the speed bumps.
VanCleve v. Sparks, 132 S.W.3d 902 (Mo.App. S.D. 2004).
Defendant owned an ingress and egress easement that provided the only access to
a public road abutting plaintiff’s property. Plaintiff also used the easement
for access, and had concerns about safety due to defendant driving at excessive
speed over the easement. As a result, plaintiff constructed two speed bumps on
the easement, the first bump being one-and-a-half inches tall and the second
being two-and-a-half inches tall, in order to slow defendant’s rate of speed.
Defendant drove large “Snap-On Tools” trucks on the easement. Upset by
plaintiff’s construction of the speed bumps, defendant began a concerted effort
to flatten the bumps by stopping their large trucks on top of them. This
compressed the bumps and eventually, plaintiff had to reconstruct them, this
time constructing one at a height of three-and-a-half inches and the other at
four-and-a-half inches. Thereafter defendant used a tractor blade to remove both
speed bumps, claiming they were damaging the trucks. Plaintiff then filed an
action for declaratory judgment to allow its to install, and enjoin removal of,
the speed bumps.
The trial court granted the petition. On appeal, defendant claimed that the
ruling was contrary to established law in that the owners of a servient estate
are prohibited from making an easement less useful or convenient for the holders
of the dominant estate. The Court of Appeals disagreed with defendant and held
that where an easement is for ingress and egress, the servient estate owner may
erect structures on the easement as long as they do not interfere with the
dominant estate owner’s reasonable enjoyment of the easement. Weighing the
plaintiff’s legitimate safety concerns against the minimal interference to
defendant, the Court found that the speed bumps only served to slow defendant’s
rate of speed and thus the speed bumps did not interfere with defendant’s
reasonable enjoyment of the easement.
Compare: Lowe v. Double L Properties, Inc., 20 P.3d 500 (Wash. App. 2000).
(Dominant estate holder may increase an existing intended use, but may not
compel a change in use on the servient estate, just as the servient estate
cannot interfere with an increase in use but can resist a change in use by the
dominant estate. Consequently, the dominant owner may not establish a speed
limit on the easement binding on the servient owner.)
Comment: Obviously, even in the most generous jurisdictions, the question is one
of reasonableness. Normally, one has no right to restrict the use of a right of
way easement by impeding travel, and clearly one could not install speed bumps
based only on the apprehension of unsafe driving. But if there has been a clear
record of unsafe driving, and the servient tenant’s use of the easement is thus
made more dangerous, probably most courts would permit this practice. But a
safer course would be to seek injunctive relief.
One interesting case held that a shopping center landlord, owner of a servient
estate, could not construct barriers and traffic control devices on its parking
area that would alter the tenant’s access easements, even where the tenant’s
then existing usage of the easement could still be accomplished. Louis W.
Epstein Family P’ship v. Kmart Corp., 13 F.3d 762 (3d Cir. 1994)
Readers are encouraged to respond to or criticize this posting.
Items reported on DIRT and in the ABA publications related to it are for general
information purposes only and should not be relied upon in the course of
representation or in the forming of decisions in legal matters. The same is true
of all commentary provided by contributors to the DIRT list. Accuracy of data
provided and opinions expressed by the DIRT editor the sole responsibility of
the DIRT editor and are in no sense the publication of the ABA.
Parties posting messages to DIRT are posting to a source that is readily
accessible by members of the general public, and should take that fact into
account in evaluating confidentiality issues.
ABOUT DIRT:
DIRT is an internet discussion group for serious real estate professionals.
Message volume varies, but commonly runs 5 - 15 messages per work day.
Daily Developments are posted every work day. To subscribe, send the message
subscribe Dirt [your name]
to
listserv@listserv.umkc.edu
To cancel your subscription, send the message signoff DIRT to the address:
listserv@listserv.umkc.edu
for information on other commands, send the message Help to the listserv
address.
DIRT has an alternate, more extensive coverage that includes not only commercial
and general real estate matters but also focuses upon residential real estate
matters. Because real estate brokers generally find this service more valuable,
it is named “BrokerDIRT.” But residential specialist attorneys, title insurers,
lenders and others interested in the residential market will want to subscribe
to this alternative list. If you subscribe to BrokerDIRT, it is not necessary
also to subscribe to DIRT, as BrokerDIRT carries all DIRT traffic in addition to
the residential discussions.
To subscribe to BrokerDIRT, send the message
subscribe BrokerDIRT [your name]
to
listserv@listserv.umkc.edu
To cancel your subscription to BrokerDIRT, send the message signoff BrokerDIRT
to the address:
listserv@listserv.umkc.edu
DIRT is a service of the American Bar Association Section on Real Property,
Probate & Trust Law and the University of Missouri, Kansas City, School of Law.
Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of
Law, UMKC School of Law, but Professor Randolph grants permission for copying or
distribution of Daily Developments for educational purposes, including
professional continuing education, provided that no charge is imposed for such
distribution and that appropriate credit is given to Professor Randolph, DIRT,
and its sponsors.
DIRT has a WebPage at:
http://www.umkc.edu/dirt/
Members of the ABA Section on Real Property, Probate and Trust Law or of the
National Association of Realtors can subscribe to a quarterly hardcopy report
that includes all DIRT Daily Developments, many other cases, and periodic
reviews of real estate oriented literature and state legislation by contacting
Antonette Smith at (312) 988 5260 or asmith4@staff.abanet.org
-----
To be removed from this mailing list, send an email message to
listserv@listserv.umkc.edu with the text SIGNOFF BROKERDIRT.
Please email manager@listserv.umkc.edu if you run into any problems.
See <http://www.umkc.edu/is/cs/listserv/unsubscribing.htm> for more information.