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

EASEMENTS; SCOPE; EASEMENTS IN GROSS; ASSIGNMENT AND DIVISION: An exclusive easement in gross for pipeline purposes may be partially alienated (and thus partially retained) by the easement holder so long as the resulting use does not burden the affected land beyond that contemplated in the original grant.

Orange County v. Citgo Pipeline Co., 934 S.W.2d 472 (Tex. App.--Beaumont 1996, writ denied)

In the instant case, the appellate court found that, not only was there no additional burden, but also the original grant's provision for payments for additional lines could work an advantage to the owner of the burdened land.

Although Texas law was far from certain on the question of the assignment and division of easements in gross, the court distinguished a large number of Texas cases in its effort to clarify the law and come up with a clear rule. Interestingly, as part of its analysis, the court concluded that the grantor of an exclusive easement surrenders all rights to conduct the activities set forth in the easement. Although this is probably a pretty good conclusion with regard to pipeline easements, other courts might quarrel with this degree of exclusivity as to easements of a more general character, such as access easements. See, e.g. Walton v. Capital Land, Inc., 477 S.E. 2d 499 (Va. 1996) ( DD for September 3.)

Another interesting feature of the case is the court's interpretation of the pipeline easement as exclusive in the first instance. There was no statement in the granting instruments that the rights conferred were exclusive, but the court nevertheless concluded that they were, based upon more general language that arguably would not compel the same construction in a different context:

"Both of the easement grants in this case contain language that retains in the grantor the full use and enjoyment of the premises, "except for the purposes hereinbefore granted to the said Grantee ..." Because [grantor]did not retain the use of the premises for pipeline purposes, we conclude that the easement in question is an exclusive easement."

On the basis of this reading, the court proceeded to the conclusion that the easement owner, with exclusive rights, had the right to apportion those rights among others. Interestingly, however, the court stressed the fact that the easement in this case provided for additional compensation to the servient owner for additional pipelines.

"Under this exclusive easement,[grantor] receives payment for every additional pipeline. Consequently, the increase in use is advantageous to it. Therefore, as previously noted, there is a strong inference that the easement was intended in its creation to be apportionable. Id. We find this authority from the Restatement of Property to be consistent with the principles of law as previously set forth in this opinion."

The court also distinguished other troubleseome Texas cases on the grounds that they did not involve such compensation rights. It remains unclear, following this opinion, whether an exclusive commercial easement that does not involve a separate payment per unit of use would be viewed as divisible as well as assignable.

Comment: The editor believes that easements should be freely assignable and divisible unless the instruments limit those characteristics in a reasonable fashion. Such rights are consistent with the concept of free alienability. The ultimate test should be: what has the grantor surrendered? If the burden on the grantor is no greater as a consequence of the transfer, and the instruments seem clear that the character of the use is that to which grantor has consented, there would seem to be no further basis to assume a bar to assignability or division when the parties have not written one into the instruments.

When the easement is in gross, the identity of the servient property does not provide as easy a guide to the expectations of the grantor, but courts nevertheless should (and in most cases do) look to the circumstances and reasonable expectations at the time of the grant to identify the scope.

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