Daily Development for Wednesday, April 24, 2002

Daily Development for Monday, April 8, 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; MODIFICATION. A servient tenant may not, without a declaratory order from a court, relocate a drainage ditch once located; and to so relocate the ditch is a trespass upon the dominant owner's rights; but if the servient tenant has so relocated the ditch, a court may refuse to order restoration to the original location where the equities are appropriate, so long as the relocation has led to no diminution in the benefit of the easement to the dominant owner.

Roaring Fork Club L.P. v. St. Jude's Company, 36 P.3d 1229 (Colo. 2001).

The water ditch had for many years served two adjacent parcels for agricultural purposes. The lower parcel had an easement across the upper parcel for the existence ditch and, implicitly, for purposes of maintenance and repair to the ditch. Although the original easement, apparently had not fixed a location for the ditch, the parties had done so through its original construction.

The upper landowner elected to develop its property into a recreational development, including a golf course, and significantly altered the ditch and, at least during construction polluted and blocked it at times.

Further, the improvements of the gold course, the dominant owner argued, interfered with its ability to maintain the ditch. It sued the servient owner for damages and demanded a restoration of the ditch to its original conformation.

The trial court granted damages and alternative injunctive relief: either the servient owner would be required to restore the ditch or to undertake, at its own expense, all costs of maintaining the ditch at its present location and guarantee the delivery of water at the level the dominant owner had earlier enjoyed from the original location. The Court of Appeals reversed the granting of the "maintenance" option, since the servient owner had altered the ditch in deliberate repudiation of the dominant's rights.

The Colorado Supreme Court, noting that the authorities on the points involved were unclear in Colorado, reversed part of the Court of Appeals order and remanded for further proceedings. It noted the majority rule that easements, once located, cannot be changed by either the dominant or servient owner. It also noted, however, that Colorado had modified this rule somewhat in cases involving ditches, where it had refused to grant injunctive relief to restore ditches, even after they had been relocated deliberately by the servient owner, where the dominant owner continued to receive the same benefit from the ditch in its new location and where the dominant owner would suffer great injury. The classic case involved a homeowner concerned about the safety of a minor child with regard to an irrigation ditch located immediately adjacent to the home. The homeowner relocated the ditch and the court refused an injunction to restore it upon a showing that the dominant owner's benefits in terms of water delivery remained unaffected. The court here characterized this approach as the "accommodation doctrine" and the new Restatement of Servitudes as authority for this approach and cases in New York, Idaho and Maryland. It also noted that a number of jurisdictions have rejected the approach, citing Arizona and Maine cases.

The court then adopted a provision of the Restatement permitting unilateral relocation of easements by the servient owner where there is no "significant" negative impact on the dominant owner and a where such relocation is done for the purpose of permitting "normal use or development of the servient estate." But the Colorado court holds that the servient owner will be liable for trespass if it undertakes such relocation without a declaratory judgment from a court authorizing such relocation.

Here, since the court acknowledged that the option of seeking declaratory relief had not been available under the Colorado cases prior to this point, the court refused to affirm the "maintenance option" injunction, but rather remanded for a determination whether, as relocated, the ditch in fact significantly adversely affects the servient owner. If it does, the ditch must be restored. If not, the ditch may remain. "Significantly affect," apparently, would include access for maintenance purposes. Note that the court left undisturbed the damages findings as to interference with the ditch during construction.

Comment 1: In the editor's view, an easement is an interest in land that can be modified by agreement, but not by theft. Where there is a good faith error on the part of a servient owner, and the easement is altered through mistake or accident, there is no reason for a court to order restoration where the equitable balance favors leaving the easement where it is. But where the servient owner deliberately alters the property rights held by another, the servient has lost the equitable high ground and restoration is the appropriate remedy. It is unclear just where the Colorado court comes out here, but it seems to be saying that, in the future, deliberate inilateral relocation of an easement will not be tolerated. It makes an exception here because of what it regarded as uncertainty in the law.

Comment 2: What about granting the courts equitable discretion to modify easements. If courts of equity were always right about what's "reasonable" and what's "significant," and if dominant owners were always wrong, then the editor would be inclined to agree with the Restatement approach. But the editor lacks that confidence.

The number of cases where modification is necessary is small. Within that universe, the number in which the market will not resolve the problem, given time and backed by the certainty that the courts will not provide an "easy out" if bargaining fails, is even smaller. Are the interests served by judicial meddling in these cases when the cost is uncertainty of legal rights which will lead to increased litigation and fewer bargained-out disputes throughout the marketplace?

As the editor lacks the confidence that the Restatement authors have that equity courts really "do equity," the editor would prefer to preserve property rights and leave the issue with the market. Where really significant public interests are at stake, we have the eminent domain option. Otherwise, the "equity" that's being doled out is making one party richer and one party poorer.

Comment 3: If someone is the outright owner of a parcel of property, and another wishes to use all or a portion of that property for a very profitable use, the court will not intervene and permit that use when the owner refuses to permit it, even if the owner would suffer no significant loss. That's today's law. It's called the principle of "private property." At least until the next Restatement is written(?)

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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