Daily Development for
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
dirt@umkc.edu
EASEMENTS; SCOPE; ACCESS: An easement
grant conveying "a
25 foot access and utility easement"
may be used not only to serve the
water tower on adjacent property that was
the original intent of the
parties, but also for general access to such
adjacent property, including access
to a cellular tower later constructed there. Bishop v. City of
it granted "the right of way and
easement to construct, lay, remove, relay, enlarge and operate a water and/or sewer pipeline or
lines, manholes, driveway and
appurtenances thereto. The deed described the easement as "a permanent easement of 25 feet in width for the
purposes of laying a water line
and an access driveway. . . " and described the
specific metes and bounds.
In the habendum clause, the deed stated that the
right would last so long as the
"pipe line or lines, manholes, driveway and or appurtenances, thereto shall be maintained" for
the purpose of "inspecting,
maintaining and repairing said lines, manholes, driveway and appurtenance of Grantee . . . and the removal,
renewal and
enlargement of such at will. . . ."
Subsequently, the city leased to Alltel
the right to attach a cellular
transmission facility to the water tower,
and Alltel used the easement to access
the tower for three years. During this three
years, Coveys
transferred the servient
estate to plaintiffs.
After Plaintiffs obtained title, the city
transferred to another cell company the right to build a new cell tower on the city water tower parcel.
Plaintiffs sued to establish that the use of
the easement to provide access to
the cell tower was a surcharge of the easement. They lost.
The appeals court ruled that the deed was
unambiguous in creating a
straight right of access to the City owned
property, and that the right of access
was not limited to utility use. The fact that the deed also created a
utility easement did not mean that this
purpose modified the uses that could
be made of the road. The court commented that the language in
the deed suggesting that the parties could
come on the land for the "enlargement"
of the "lines drivew
and appurtenance of Grantee"
indicated that the parties foresaw that the
use of the right of way might intensify
over time.
The court had other evidence that a broad
construction of the right of
way was what the parties intended, both in
the implementing of a broader use
by Alltel and its continuation through the time of transfer to plaintiffs, and in the testimony of Dr. Covey, who
indicate that he
intended a broad access right.
Comment 1: Congratulations to
the
Comment 2: The editor does
have a cavil, however, with the court's
suggestion that the language in the habendum clause indicating that the
easement could be used for
"enlargement" might mean that the roadway
could be enlarged. Other parts of the
deed unambiguously set forth the
precise dimensions of the roadway, and the
"enlargement" language
should not be read as a license to exceed
those dimensions, since it can also
be read to permit enlargement of the pipelines and other utility facilities, which don't have precise dimensions.
Comment 3: As the editor has commented in
the past, lawyers often are
careless in the drafting of easements,
generally not anticipating what will happen in the future. This is true both of lawyers drafting on
behalf of the benefitted parties and those working for the burdened
properties. Each side should
think into the future as to what value is really being transferred and what is being retained.
Representing the burdened party, lawyers
should think of the easement as a right
to use the property for an identified use
and only that use. The unique location and other characteristics of the property might make it
valuable for other uses that
might come along in the future. Since we can't put a price on that value today, we shouldn’t be selling it for pottage due to an overly broad description of permitted uses.
Representing the benefitted
party, lawyers should try to get things as broad and loose as they can, of course. But if there is on the
other side a savvy negotiator, who is trying to limit the uses, then the
responsibility ought to be to identify all potential future applications of the
easement that the client ought now to be able to foresee and conclude are worth
purchasing.
Where these other uses are not
particularly harmful to the burdened parcel, and we're buying something today,
many of these uses can be acquired more cheaply now than when they are truly
valuable later. Cellular telecommunications access, of course, is exhibit
A.