Daily Development for Tuesday, February 25, 2003

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; ENFORCEMENT; MODIFICATION: An easement can be temporarily relocated on equitable grounds, or an injunction may be denied, but this does not mean that the easement is, or can be, permanently extinguished if, once the basis for such equitable judgments no longer exists, the original easement can again be recognized in its original location.

Bubis v. Kassin, 353 N.J. Super. 415, 803 A.2d 146 (App. Div. 2002).

This is an important case because it arises in the context of a developing dispute about the appropriateness of the position of the new Restatement on Servitudes that courts can relocate easements. This case cites the Restatement, but only for another point - that refusal to grant an injunction enforcing an easement does not result in its termination. Nevertheless, in context, the court appears to be rejecting the notion that permanent relocation is available.

In an earlier visit to the Appellate Division, that Court had concluded that various individual owners of inland lots had implied private easements across a former street that ran through the middle of a particular owner's property. The case was reported as the DIRT DD for 2/15/00 (on the DIRT Website http://www.umkc.edu/dirt) The easement gave access to the beach and ocean. The public street had been closed more than thirty years before, and the owner of the alleged servient property had constructed a beach club, with the old street/easement running through the center of the property. There was disagreement as to whether and under what circumstances the owner had permitted the neighbors to cross over the beach club property during that period. Apparently the owner had permitted some access in non-peak use periods, and the gate was loose enough that neighbors often crossed over simply by "squeezing through.

In the earlier decision, the appeals court found that an easement right did exist. There is no discussion in this case as to the basis for that finding, or of why the easement had not been viewed as terminated or modified by prescription. But clearly prescription did not play a role in the final result. On remand, the lower court observed that the servient owner had offered to construct a paved and lighted access way along the edge of the property, to replace the easement that passed through the center of the property. It noted that if the easement were moved to the edge of the encumbered landowner's property, the longest additional distance a neighbor would have to walk to get access the beach was 300 feet. Most neighbors would not be affected at all. On the other hand, recognizing an easement through the center of the property would significantly impede the usefulness of the property and reduce the market value. Further, there was the fact that the neighbors had tolerated considerable interference with the easement over the prior thirty years, and the new owners had acquired the property in the belief that the easement would not be opened up.

The trial court, stating that it was balancing equities, determined that it would be equitable to move the easement to the extreme edge of the encumbered property from about the middle of the property where it had originally been designated. It commented: "This court is quite satisfied that this is a situation where the granting of the maximum relief sought by plaintiff would lead to an inequitable decree... . [D]espite the fact that they have an established implied easement in the location in question, as the Appellate Division has determined, they were also required to demonstrate their hardship, if equitable relief is not awarded, is not merely a matter of inconvenience but of sufficient magnitude as to call for the application of the strong arm of the court of equity. This [the neighbors] have failed to do."

The lower court concluded that the neighbor's interest in the access easement "could be adequately vindicated by relocation of the easement to the southern boundary of the [encumbered] property, which [was] approximately 300 feet from [its original location]."

The matter then returned to the Appellate Division which upheld the lower court's decision, but reinterpreted it. It agreed that its remand had been broad enough to permit the lower court to make findings and facts and conclusions of law with respect to the relief to be granted. A court of equity "ordinarily has broad discretion in determining whether to grant injunctive relief." In doing so, it is required to consider the relative hardships to the parties as well as other equitable circumstances. Consequently, it was clear that the lower court had the authority to withhold the equitable relief sought by the neighbors.

On the other hand, the Appellate Division did not believe that such rationale supported extinguishment of the easement. In the Court's view, the hardship would continue to exist only so long as the encumbered property was held in unitary ownership. "If the property is subdivided, it may be appropriate to enforce the easement along [the originally designated street] at that time." The Appellate Division recognized that the lower court's judgment did not expressly state that the easement over the former street had been extinguished, "but the use of the term 'relocate' could be construed to have that effect." Therefore, it remanded the matter for entry of an amended judgment to state that the denial of the injunction enforcing the easement across the abandoned street did not extinguish the easement.

Comment 1: In effect, the court recognized the special equities of the situation and "conditionally denied" the granting of an easement. The condition, of course, is that the current owner, while using the property in a unitary format, will provide the stipulated alternative access along the edge of the property.

Comment 2: What the editor finds helpful in this opinion is the appeals courts careful rearticulation of the lower court's order to uphold the notion that an easement is a property right that cannot be modified or terminated by a court when convenient or even when "equitable." Instead, the court recognized the ancient concept that equity courts will withhold equitable relief when the party against which the relief would operate would suffer a significant equitable injury and this is not balanced by the harm to the plaintiffs by refusing the relief. This concept has always been a part of the law, and even is available in many jurisdictions to deny injunction relief recognizing ownership claims (such as in the case of good faith mistaken improvement.)

Comment 3: Note further that the appeals court, unlike the lower court, emphasized the fact that there was a "positive equity" favoring the alleged servient landowner, in that it had acquired the property in the belief that any prior easement rights had been terminated due to the long interruption in use that the neighbors apparently had lived with. As another court emphasized recently in connection with land use covenants, it should not be enough for the opponents to enforcement to show that they will suffer a hardship. They also must show that there is some affirmative equitable ground supporting their position. If, for instance, they deliberately "buy in" to a position that is inconsistent with the property rights of others, or if they knowingly violate covenants or easements, then they have little equitable position now to raise the claim that the situation they have created causes them hardship. Consequently, those seeking enforcement can stand on their rights without showing some special equitable justification for their position. See Chestnut Real Estate Partnership v. Huber, 811 A. 2d 389 (Md. 2002) ( "Irreparable harm" standard need not be satisfied to enforce land use covenant, at least where parties subject to covenant bought in with knowledge of its impact.)

Comment 4: Here, although the plaintiffs did not get an injunction, and in fact have had their rights altered based upon the present equities, they have the right to full recognition of their rights in the future. In addition, one would assume that even as to the temporary interference with their rights they ought to be entitled to any provable damages. But, of course, one reason that they didn't get the injunction was that the impact on them was slight enough that it is unlikely that they can prove damages. At least they will have to do no more "squeezing in."