In 1948, grantor Club transferred a general unrestricted access right over a road on grantor's property and a right from that road to a river crossing grantor's property. This was part of an arrangement by which grantor's members also got the right to cross over grantee's property to get to Club land, and the parties arranged for maintenance of the road as well.
Grantee testified that the intent of the parties was to provide access over the road and to the river for grantee's agricultural activities, and that was the use grantee made of the easements for many years. Later, however, grantee sold its property to a third party, and that party, in a new era, commenced developing the land for recreational purposes and using both the road and the river access for purposes of its recrational development.
Club objected to the new uses. Third party brought suit for declaratory relief.
Held: Third party may use the easement for non-agricultural purposes. "Unlimited reasonable use" is permitted. A grant of an easement does not need to recite every conceivable use that is allowed. If the grant is general and unrestricted, no particular restrictions will be assumed, and evidence is not admissible to detract from the unconditional character of the deed.
Note: Although it is of course dangerous to read anything into this naked statement of facts, it should be noted that the Deschutes River is an extremely popular fishing river, and that it is quite likely that the Deschutes Club was formed for recreational fishing purposes. Further, it is quite likely that the third party's access to the river will facilitate uses of the river that will cause real or imagined interference with the fishing activities of club members. The river itself is probably a navigable waterway that the Club cannot restrict.
Comment 1: The issue of permitted future scope of easements is one of the most neglected areas of negotiation in the law of real estate. It is quite common, for instance, for parties to identify easements of access without even stipulating the boundaries of the area over which the easement will run. It is even more common for the parties to say nothing about the character of the intended use.
Very often, the grantor has in mind the uses of the property in its present condition and under present or immediately foreseeable dvelopment. But the easement, unless otherwise limited, will last forever. And much can change during forever. Most courts conclude that the parties anticipate reasonably foreseeable growth and development of the dominant use over time, thus permitting some pretty extensive changes in both character and intensity. Chances are that if the grantor thought through the implications of this possibility, grantor would work harder to set forth some limits on use at the outset.
From the grantor's standpoint, the question is not just one of increased impact. It may be that different uses of the easement area will result in greater value to the dominant tenant, and that the dominant tenant ought to pay a higher price to get those uses. For a wonderful (or terrible) example of this, see Henly v. Continental Cablevision, 692 S.W.2d 825 (Mo. App. 1985), which appears in some property casebooks. (1920's easement for power line wires and telephone line wires construed to be an exclusive easement for running wires of all kinds - therefore, in 1980, power company and telephone company can lease space in their easement to cable television operators.)
Comment 2: The rule is a bit different for prescriptive easements, which, generally speaking, are limited to the intensity of use that established the prescription. Nevertheless, the character of use of a prescriptive easement may change, even if the intensity of use may not.
Comment 3: This case is a reverse image of Steil v. Smith, 901 P.2d 395 (Wyo. 1995), discussed under the same heading.
EASEMENTS; SCOPE; INTENT: An easement granting a right-of-way for "agricultural related purposes" does not include the right to use the road for big game hunting. Steil v. Smith, 901 P.2d 395 (Wyo. 1995).
The Steils' predecessor-in-interest granted Smith "a permanent right of way over, across and through the lands. . .described for a means of ingress and egress to access [Smith's] lands located near or adjacent to the land of the [predecessors-in-title] for agricultural related purposes. . .." [emphasis added] Since this was an express grant and not an easement by prescription, the language of the grant controlled the scope of the easement. The appellate court found that the language was clear and unambiguous and that no extrinsic evidence--such as Smith's use before the grant--needed to be considered. Comment: This case is a reverse image of Criterion Interests, Inc. v. Deschutes Club, 136 Or. App. 239, 902 P.2d 110 (1995), discussed under the same heading.
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