by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

EASEMENTS; CREATION; GRANT: Language in deed of access rights to state department of transportation ("DOT") reserving limited and specified access to highway for grantor and "its successors and assigns" does not create a restrictive covenant running with land promising that department of transportation will never interfere with such access, but instead reserves easement appurtenant, which may be restricted at least according to ordinary rules of easements.

Universal Motor Fuels, Inc. v. Johnston, 917 P.2d 877 (Kan. 1996).

Plaintiff's predecessors had entered into a contract with DOT which stated that access would be transferred to DOT "except and reserving however, unto owners of abutting land, their successors or assigns, the right of access to said highway for the purpose of entrances over and across the following described courses . . ." The subsequent deed tracked this language.

The grantors later improved two of the access points in connection with the development of a roadside service station. Later, in connection with an improvement and widening project, the DOT closed the access points for a time. Later, it reopend one (larger than before) but closed the other improved access and restricted the use of the third identified access.

Plaintiffs brought a breach of contract suit against the DOT. They elected to try this route rather than an inverse condemnation suit because of important procedural advantages concerning jury issues and damages. Plaintiffs argued that DOT, by the above language, had made a contract that it would never restrict the landowner's (or its successors' or assigns') right to highway access.

The DOT argued that nothing more than an easement had been created, and that the easement could be restricted for police power considerations based upon safety. Plaintiffs responded that the contract commitment here reserving access to the landowners and their successors and assigns overrode whatever rights the State might ordinarily be able to exercise as part of its police power. It viewed the reservation as a pledge that the State would be liable if it ever reduced the access.

The Kansas Supreme Court held that the "successors or assigns" language in the contract between the parties was not a promise by DOT never to restrict access, but instead created an easement. The language referred to the legal concept that easements appurtenant pass to the assigns of the landowner. It thus affirmed the dismissal of the breach of contract claim.

The court did not reach the issue of whether the state could close the access easements for safety purposes without compensating the holders of those access rights. This was not raised on appeal, although the court acknowledged that the DOT took this position.

Comment 1: The language clearly creates an easement in the minds of most property practitioners. Easements can be limited in use to some extent in connection with the legitimate balance of uses intended by the parties. A temporary closure during construction activities might be seen as consistent with the reservation of an access right to a public highway. A permanent closure, however, clearly would not be consistent with the rights under the easement.

Comment 2: The State's argument that it had the police power to close access without compensation for "safety reasons" may be an attempt to invoke recent Supreme Court thinking stated in Lucas that traditional public health and safety considerations may support a 100% taking without compensation. The editor views such an argument as ill founded. In a case like closure of an access easement, the "health and safety" justification does not relate specifically to the property being taken, but to State activities that create a disonance between the rights taken and public safety concerns. The State could build its highway system in such a way as to protect the access rights it has granted, but it elects not to do so. If that is the case, then it is hard for the editor to imagine a court finding that it has no duty to compensate the access rights so taken because they are no longer "safe."

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