by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

EASEMENTS; SCOPE: Easement granted for use as power line, along with right of ingress and egress to and from easement, allows use of existing road on adjacent parcel owned by easement grantor to access right-of-way where repair work on easement itself would place electrical crew and equipment in danger. Burgess v. Alabama Power Company, 658 So.2d 435 (Ala. 1995). The language of the easement documents here granted utility "all rights and privileges necessary or convenient for full enjoyment or use of easement, including right of ingress and egress to and from easement strip." But note that the easement was itself a fifty foot wide strip and, in addition,the parcel covered by the easement was a portion of Section 13. Regular access to its mountaintop transmission station proved hazardous, so it sought to use the easement grantor's road. The road the utility sought to use was on Section 8, but apparently had been owned continuously by the easement grantor from the time of the grant of the Section 13 easement. Held: Easement grant implicitly carried with it the right to use the road where safety considerations were compelling.

Comment: Although there was an express grant of access in the easement in this case, wouldn't a court normally infer from the grant of an easement as to which access is required that there is an implied right of access? Whether one regards such an access right as an "easement by necessity" or simply a restatement of the scope of the easement, it would seem necessary to carry out the probable intent of the parties.

Of course, it is one thing to say that implication of access rights is possible. It is quite another to conclude that the right ought to be available in a particular case. Courts should consider such issues as the proper and expected use of the servient tenant's property, the availability of alternative means of access to carry out the necessary servicing, and any special language in the conveying documents or circumstances arising at conveyance that suggest a narrower or broader interpretation of the parties' intent.

Further, what makes this case particularly interesting is the implied right across an adjacent parcel. What would happen if the grantor of the easement conveyed this parcel to a third party? Would the grant of an easement across another parcel be constructive notice of the implied rights the court finds to exist here? (Editor: probably not - unless a known or apparent pattern of use by that time gave rise to inquiry.)

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. Contact Shawn Kaminsky at the ABA. (312) 988 5260.

Items reported here and in the ABA publications 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. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.