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)

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