Daily Development for Friday, May 3, 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; RELOCATION: Washington court rejects Restatement, holds that easements cannot be modified without mutual consent.

MacMeekin v. Low Income Housing Institute, Inc., 2002 Wash. App.

Lexis 612 (4/15/2002)

About fifty years ago, a landowner constructed two residences on her property and sold them to two different individuals. The seller constructed a driveway system that ran partly through her retained land, and the rest over one of the parcels sold, that provided access to both the parcels. Most of the driveway was in use prior to the time that the parcels were sold in order to provide access to one of the houses, which was operated as a rental for some time before being sold to the tenant.

The driveway was extended across the rental parcel to accommodate another house the landowner built next store, and which the landowner sold to a third party before selling the rental property to its tenant.

At the time that the landowner sold the rental parcel to its tenant, the landowner deeded to tenant an alternate access route. But that route led nowhere at the time. It was designed to connect ultimately to a planned cul de sac that the landowner intended to construct. In fact, this cul de sac was not constructed until 45 years later, long after landowner's death.

Recently, a nonprofit corporation that develops facilities to house the homeless acquired an unplatted property adjacent to one of the lots described above. That property included a significant portion of the driveway. When the nonprofit acquired the parcel, it intended to build its facility near the back of the property, which would not have interfered with continued use of the driveway. Through a misunderstanding of the zoning laws (which the court suggests was due to the fault of the zoning authorities, and not the nonprofit), the nonprofit believed that its plans comported with applicable land use restrictions. When it discovered that it was wrong, it attempted to obtain a variance, but was denied. It ultimately concluded that the only way to salvage its situation was to build a facility near the front of the property. If it were not able to intrude upon the driveway, it would be unable to construct the number of units necessary to preserve public and private funding commitments to build the facility. The nonprofit tendered an alternate route to the owner of the former rental property, the neighbor. (The other property owner who acquired a house and easement fifty years before, on the other side of the rental property, is not involved in the case, and the house was torn down some years before. It appears that property had a deeded easement in any event.)

The neighbor sued to quiet title to the easement on the grounds that it was an easement by implication from preexisting use and that, in any event, it was an easement by prescription. The nonprofit responded that, under the minority rule espoused by the Restatement of Servitudes, courts could modify easements in appropriate cases, and this was one such case. It also argued that a number of courts permitted modification at least of easements by prescription, and that this easement fit that description. It contended that the easement was not one by implication because, at the time of the transfer to the former tenant, the landowner provided an alternative access, and that the parties' probable intent was that the original driveway was intended to be used until the alternative access became workable, simply as a "neighborly accommodation."

The court concluded that the "neighborly accommodation" argument didn't work, for reasons not relevant to the main point here, and that the easement by implication was well established. Then it addressed the issue of whether Washington law did or should permit the judicial relocation of an easement when the dominant party objected.

The court reviewed Washington law and found only dicta relevant to either side of the question. It reviewed all the cases supporting relocation set forth in the notes to the Restatement and in the law review authorities. It also reviewed all law review authorities cited by the Restatement at the time it was published. It concluded that Washington would and should continue to follow the majority view - that an easement is a form of property that courts must recognize as such.

Here is the relevant language:

"Clearly, the debate between those who would adhere to the traditional rule and those who favor the reform approach involves serious questions of competing policy. The traditional approach favors uniformity, stability, predictability and property rights. The Restatement (Third) approach favors flexibility, and the development potential of the servient estate. Under the traditional approach, the holder of the servient estate must purchase the right to relocate the easement if he is to have it at all. Under the Restatement (Third) approach, relocation may be forced upon the holder of the dominant estate against his will. To use the example suggested by this case, under Restatement (Third) a court might order relocation of an easement based on its determination that (1) a zig-zag course through the parking lot of an adjacent apartment complex is not significantly different from a straight driveway that has existed for half a century, because both eventually arrive at the same public street, and, therefore, such relocation will not significantly lessen the utility of the easement; even though such relocation might make it difficult for visitors, delivery people, postal authorities, firefighters, bus drivers or others to locate the street address of the dominant estate, this is merely an inconvenience that does not sufficiently increase the burdens on the owner of the easement in its use and enjoyment to justify denial of relocation; and (3) because the easement was created for the purpose of providing ingress, egress and utilities, all of which can still be provided, though perhaps not as conveniently as before, there has been no frustration of purpose.

Under the Restatement (Third) approach, one who purchases property in reliance on an existing easement, however created--by express grant, by implication or by prescription--must bargain for a clause prohibiting relocation of the easement, or accept the possibility that the easement may be relocated for purposes that benefit the servient estate, at some time in the future. Restatement (Third) 4.8(3). . .

We decline to adopt the Restatement (Third) approach. We also decline LIHI's invitation to rule that trial courts have the authority to order relocation of easements created by prescription, if none other, based on equitable principles. Although our Supreme Court has never directly addressed the issue of court-ordered relocation of easements, and we can only be guided by its pronouncements of dicta, the dictum contains every indication that Washington adheres to the traditional rule that easements, however created, are property rights, and as such are not subject to relocation absent the consent of both parties. We so hold."

Comment 1: After the Washington Supreme Court delivered to us the notorious Kim case last fall (which the court recently refused to rehear), the editor is somewhat wary of any legal developments in Washington.

Obviously the nonprofit here has some muscle behind it, and the editor suspects we'll see this case tendered to the next level. Hold your breath!!

Comment 2: As anyone reading these items will know, this case, in the editor's view, is the absolute soul of rationality. Of course an easement is property, and that is anyone's intention. Going forward, of course, wise lawyers ought to include language indicating that they do not intend to authorize any modification or amendment without the dominant owner's consent, but that would not have helped the tenant here, since the easement arose by implication.

As indicated in his comments critical of the recent Colorado case permitting what the court here expressly rejects, the editor is of the view that the majority of the cases in which easements need to be relocated will be settled by economic compromise. In other cases, of course, equitable factors, such as laches or estoppel, might apply. Or, in the case of a good faith mistaken intrusion onto an easement, a court might refuse injunctive relief where the equities are appropriate. The Washington court, by distinguishing other cases involving these facts, indicates that it is not precluding adjustments to easements based upon such special considerations. But those types of situations do not challenge the basic premise that an easement is property, as they might occur even when the involved property is a fee ownership.

It cannot be gainsaid that there will still be a few remaining cases where real hardship will exist, albeit hardship invited onto itself by the servient owner. The editor sees no reason to invite the uncertain judgment of a trial court into the mix here. As indicated in his prior comments, a property interest is not just a collection of present rights, it is also the ownership of the future potential of the area in which the rights exist.

Such potential may be now unrealized, and the benefits may now be unknown, but the whole premise of our private property system is that that future potential belongs to the owner, not to the whim of a trial court.

In this case, if there is a strong public policy supporting the location of a homeless facility, that policy could be expressed through condemnation of this parcel or some other policy, or revision of the funding or planning blocks of which the nonprofit complains. Clearly the public need is not so strong as it contends, or it wouldn't be in this pickle!

Comment 3: The editor does quibble with one part of the court's characterization of the Restatement position. Clearly, in the "zig zag"

hypothetical the court describes, the authors of the Restatement are likely to conclude that a court should not order a relocation. Under its rubric, the servient owner should be entitled to the reasonable equivalent of its easement rights - not to a strained rearticulation of them. But the court's point is nevertheless valid. Even if the court believes that it is preserving the expectations of the dominant owner today, how can it be sure that it is preserving that expectation as to developments in the future? If the servient owner wants the dominant to surrender the potential that exists in this particular location on the earth's surface, let him place a price on that potential. At some price, the dominant will sell. That's how the system works, and how it should work.

Comment 4: Apparently the parties did not cite to the court the (probably as yet undecided) decision of the Colorado Supreme Court that the editor has criticized, Roaring Fork Club L.P. v. St. Jude's Company, 36 P.3d

1229 (Colo.2001). (The DD for 4/8/02). But the court did cite and reject a "ditch relocation" case that the Colorado court used as its text.

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

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