Daily Development for
Monday, July 28, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

EASEMENTS; SCOPE; RELOCATION: While prescriptive easement may not be restricted unreasonably by owner of servient estate, servient owner is not prohibited from relocating the easement, as long as relocation is minor, safe, and does not unreasonably interfere with easement holder's use and enjoyment.

Soderberg v. Weisel, 687 A.2d 839 (Pa.Super. 1997).

Court allowed the easement to be relocated by servient landowner, since points of ingress and egress did not change, the original location of the easement posed a danger to children of servient landowner, and no evidence showed that dominant estate owner would incur hardship in using the relocated easement.

The court relies upon two lower appellate court precedents in which judges stated in dicta that a court had the power to modify an easement but refused to do so because the relocation would have been less convenient or more dangerous for the dominant owner.

Here the court does relocate the easement over the dominant owner's objections. It carefully differentiates the case of a prescriptive easement where, it maintains, the original dimensions are not set, from the case of an express easement with set dimensions, where the court suggests that no change would be permitted.

Comment 1: The editor regards this little case as a remarkable break with precedent and a dangerous intrusion into property rights. It is noteworthy that a different Pennsylvania Superior Court panel has recently stated that lower appeals courts should not undertake excursions to reshape the law into what they think it will someday become, but to leave that chore to the State's highest appellate court the legislature.

See Stonehenge Square Ltd. v. Movie Merchants, Inc., 685 A.2d 1019 (Pa.Super. 1996), (refusing to impose mitigation duty on commercial landlords), the DD for April 14, 1997, where the court, quoting Learned Hand, stated:""[I]t is not 'desirable for a lower court to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time but whose birth is distant.'"

Comment 2: The proposed new Restatement of Servitudes follows, in Section 4.8(f), the reasoning adopted here with regard to all easements, express, prescriptive, or implied. The Restatement Reporter, however, candidly concedes that "[t]he weight of authority in the United States takes the position that neither dominant nor servient owner may relocate an easement unilaterally."

The Reporter's notes do include a few cases that support the Restatement's proposed change. A sampling indicates that a number of the cases are Louisiana cases, where civil law equitable concepts may justify a different result than common law rules; cases involving special equitable circumstances or unusual situations such as undefined "free pass" easements to cemeteries, or cases involving special language of creation that could support the servient's right to change. In short, this lower Pennsylvania Superior Court panel is definitely "out on a limb."

Comment 3: On the question of whether there is authority on the narrow point of whether to differentiate prescriptive easements, see Thomason v. Kern & Co., 876 S.E.2d 872 (Ga. 1989), where the court (according to the Restatement report of the case) reasoned that because prescriptive user cannot acquire an easement if the path has been shifted during the prescriptive period, once acquired, the servient owner may not alter the path.

Comment 4: Having said all the above about whether there is precedent for the decision, the editor has thought about whether, given the right court, this would be a good course of action. The editor concurs that the rationale for permitting judicial modification of prescriptive easements is a stronger one than for permitting judicial modification of express easements of identified width and location. The easement for prescription is actually an easement to impose a certain burden on the servient property. In most cases, it is the burden, and not its location, that gives rise to the prescription. And the basis of the easement is public policy, not agreement (although some states still track the "lost grant theory," most ignore it). In the editor's view, there is an argument that the policy basis for permitting an easement by prescription would be equally well satisfied by recognizing an easement that could be relocated when a court concludes that the dominant tenant would suffer no harm.

In general, however, the editor dislikes departure from established rules of property. More to the point, recognizing a rule here permitting courts to change prescriptive easements starts us down the "slippery slope" (already greased by the Restatement) toward permitting general revision of express easements by courts. The editor views it as inappropriate for courts to be permitted to substitute their judgment of what's reasonable for the judgment of the parties and the marketplace. In most cases, if the location of an express easement causes trouble, and the servient owner would like to move it, the dominant owner will permit it to be moved at some cost. The fact that the servient owner doesn't wish to pay the price doesn't make the dominant's owner's position "unreasonable," just inconvenient. It's always inconvenient when you would like to have ownership and control of something but you don't. But the consequence of our private property system is that you can't just run to the courts every time to demand that someone else give to you from their property so that you can reach your objectives with your own. You're supposed to bargain and buy. If an easement is to have meaning as a "property right," and the editor thinks it should, that's where the issue should remain.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Walter at the ABA. (312) 988 5260 or stacywalter@staff.abanet.org

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