Daily Development for Thursday, February 21, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

EASEMENTS; SCOPE; SPEED LIMITS: The 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. Lowe v. Double L Properties, Inc., 20 P.3d 500 (Wash. App. 2000).

The Lowes (the dominant estate) acquired an easement by necessity through foreclosure over the Double L Properties (the servient estate). The trial court allowed the servient estate to increase the number of gates and to alter certain gates across the easement in order to control its livestock, and ordered the dominant estate to obey the speed restrictions set by the servient estate and to obtain the servient estate's permission for conducting significant maintenance on the easement. On appeal, the court held that the use of a gate was a necessary type of limit on the easement and, therefore, was properly allowed in order to control livestock. The appeals court ruled, however, the trial court erred both in requiring the dominant estate to obtain the servient estate's permission before conducting "significant maintenance" and in imposing a speed limit on the dominant estate over the easement. Both of these holdings were improper limitations on the dominant estate's rights.

The court noted, preliminarily , that this was an easement by necessity resulting from a bankruptcy sale, and that consequently there was no "prior intent" that could be gleaned regarding the purpose of the parties in creating this easement. Consequently, the court could look only to the interest of the dominant tenant that the easement was supposed to fulfill.

This interest was access.

As to the gates, the court concluded that it was appropriate for the servient tenant to construct gates to control livestock, although the gates had to be readily amenable to the control of the dominant tenant. the court noted that some authority elsewhere had concluded that cattle guards are a less restrictive alternative to gates, and that servient tenants may be required to limit their development of an easement to cattle guards where appropriate. But it refused to overrule the trial court in its conclusions here.

As to the maintenance, the court concluded that it was appropriate that the servient notify the dominant before maintaining the easement, but that there was no basis to require the servient to get permission to perform maintenance on a commonly used road.

As to the speed limit, the court concluded that very little evidence was adduced to show any grounds for concluding that limiting the speed on the road was necessary or appropriate

Comment 1: This case is based entirely on the adequacy of the evidence below, and must be taken in that context. If the fundamental purpose of the easement were affected by the nature of the servient tenant's use, then one would assume that the servient tenant's use would have to give way. The court did not conclude that the record supported the conclusion that the speed of traffic on the roadway unduly interfered with the fundamental purpose of the easement for the dominant tenant.

Comment 2: In Scruby v. Vintage Grapevine, Inc., 43 Cal. Rptr. 2d 810 (Cal. App. 1995), the DIRT DD for 10/19/95), a servient tenant was permitted to place obstacles (boxes and equipment) within a non- exclusive easement area where these did not interfere in any practical way with the dominant use. Further, the dominant was not permitted to pave the easement area where, under the circumstances, this would lead to the loss of critical public access rights for the servient under a land use agreement. The dominant even had to remove existing paving.

In Montana v. Blount, 504 SE2d 547 (Ga. App. 1998), the DIRT DD for 10/27/98, the court acknowledged that a dominant owner has right to make use of entire width of right of way easement, but the servient tenement may be able object to the dominant owner removing trees from easement by showing that such removal is not necessary to complete enjoyment of the easement.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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 six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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