Daily Development for Thursday, September 17, 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

Note that there are two discussions here of two different aspects of the same case.

EASEMENTS; RELOCATION; REQUIREMENT FOR UNITY OF TITLE: Where dominant owner contends that a granted easement was consensually relocated at a time when the dominant and servient estates were held under a single unity of title, the dominant owner must show complete unity of title to both the dominant and servient parcels, and ownership through a corporation or various cotenancies is insufficient.

Bassett v. Harrison, http://www.courts.state.md.us/opinions/cosa/2002/1633s01.pdfNo. 1633, (Md. 9/11/02)

Harrison's predecessor granted to Bassett's predecessor an easement across Harrison's land in 1913 in connection with Bassett's predecessor's acquisition of a 72 acre tract. This easement crossed over Harrison's Birch Farm. At some point prior to 1938, the location of a 600 foot segment of the right of way changed and a new segment was opened at about a thirty degree angle to the line of the original road. The original route was abandoned. The new route crossed from its location on Birch Farm and veered over certain property known as the "Evans Tract." Bassett's predecessor used the revised route from 1938 forward.

Bassetts cited cases in which a servient owner had voluntarily changed the location of an easement route, with the acquiesence of the servient owner, and was held to have legally altered the route, creating a new permanent easement in favor of the servient owner over the new route.

The court concluded that Bassetts had not satisfied their burden of proof in showing that, at the time of relocation, the two portions of the alleged servient estate - Birch Farm and the Evans Tract, were owned by the Harrisons. But Bassetts contended that even if there was not identity of ownership, there was "substantial identity," and that this was sufficient to determine that the easement had been voluntarily altered by the servient owners.

Bassetts argued that it was possible to find a valid relocation of the easement if the servient estate was owned by "substantially common ownership," if not absolute common ownership. They alleged that, at the time of the relocation, one of two ownership models existed. For part of the time before 1938, G. Hale Harrison, a predecessor in interest to the present Harrisons, was the owner of a two-thirds undivided interest in Birch Farm, the original servient estate, and also owned the Evans Lot in partnership with two brothers. After 1929, a corporation, Harrison Nurseries, Inc., had a one half interest in both the Evans Tract and Birch Farm. Harrison Nurseries apparently was owned by G. Hale Harrison.

Characterizing the Bassetts' argument as "no more rooted in logic than it is in law," the court rejected the theory of "substantially common ownership." It found that no Maryland authority had recognized this theory, although cases in other jurisdictions had recognized the possibility of the argument in eminent domain severance cases. It found that the inquiry necessary to find "substantially common ownership"

would replace "reasoned and predictable outcomes with arbitrary decisions" as to when the shifting ownership of two properties reaches a certain level of commonality. Moreover, the court declared categorically that ownership through a corporation could never be treated as functionally the same as individual ownership.

Bassetts argued, in the alternative, that the owners of the new servient estate, the Evans Tract, knew and acquiesced in the relocation of the easement onto their property. The court concluded that for there to be such acquiesence any change must be "slight" and "immaterial" as to location and use. This was not the case here.

Comment: The editor has done the best he can to analyze the court's discussion of the "consensual relocation" contentions. At one point, it states that as a prerequisite there must be "common ownership of the dominant and servient estates." But there never was any claim of such ownership here - only of common ownership of the servient estate.

Further, a complete merger of dominant and servient estates typically would destroy an easement. The editor supposes that the court meant to say that Bassetts were arguing that separate owners of the dominant and servient estates had agreed to a modification of the easement, but that Bassetts were unable to do so because the parties who owned the original servient estate were distinct from those who owned the new servient estate.

EASEMENTS; SCOPE; PRESCRIPTIVE EASEMENTS: Scope of prescriptive easement is cam be expanded by "reasonable increase"

according to "normal evolution," but movement from farm usage to hauling of sand and gravel does not satisfy this test, even if the servient owners had permitted others to use the easement for sand and gravel hauling.

Bassett v. Harrison, http://www.courts.state.md.us/opinions/cosa/2002/1633s01.pdf No.1633, (Md. 9/11/02) also discussed under the heading: "Easements; Relocation; Requirement for Unity of Title."

Although, in another part of the case, referenced above, the court concluded that the Bassetts had no established that the road in question had been relocated by acquiesence or consent, the court nevertheless found that an easement right had been established by prescription over the relocated 600 foot section.

But the court went on to conclude that this easement was limited in use. First, there was the problem that it attached to a granted easement section, and that granted easement was appurtenant to the original 72 acre tract granted to Bassetts' predecessors. Bassetts were now seeking to benefit other property in addition to that tract. They were denied the right to do so.

The court then analyzed whether, even as to this 72 acre tract, Bassetts had the right to expand their use of the granted segment from agricultural use to sand and gravel hauling. The court further held that the use of the road to haul sand and gravel from a borrow pit was not compatible and consistent with the use for which the granted easement had been created and constituted an increase in the burden on the servient estate. It makes this statement categorically, and without any analysis, although it points out that it took into account the fact that the servient owners were permitting other neighbors to use the road to haul sand and gravel.

In some jurisdictions, the standard for whether there can be an increase in scope of a prescriptive easement is much narrower than for granted access easements. Prescriptive rights are limited to the specific types of uses that gave rise to the prescription in the first place. But the court here stated that Maryland has embraced what it called the "enlightened approach" that "the normal evolution in the use of a dominant tenement" permits a reasonable increase in the burden on the servient tenement. But, again without analysis, the court concludes that the use for sand and gravel is not a "reasonable increase."

Comment: This is the highest court of Maryland, which has rendered thoughtful real estate opinions in the past. The editor finds the case significant enough to report, but admits to disappointment in the quality of the analysis.

The biggest problem is that the court twice refuses to conclude that the use of the easement for sand and gravel is a proper or reasonable expansion of use, without saying why. Since it is clear that others were using the road for the same purpose, it is difficult to know what there was about the Bassetts' use that made it so unusual and inconsistent with "normal growth." The court ought to do more than simply proclaim this conclusion.

Second, the court discusses the "enlightened approach" for analysis of the expansion in use of a prescriptive easement, but does not indicate why or how that approach differs from the test to be used to measure expansions in use of a granted easement. It appears to regard the questions as separate, but the statement of the "enlightened approach" sounds exactly like the test that most courts would apply to evaluate expansion claims for a granted right of way as to which no other limits had been established in the documents.

The editor's unhappiness as to the analysis of the relocation issue as well is noted in the related item cited above.

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

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