Daily Development for
Wednesday, September 3, 1997

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

EASEMENTS; SCOPE; RIGHTS OF SERVIENT OWNER: Although an "exclusive right of use" that encompasses all uses is the equivalent of a fee, and precludes any use by the servient owner, an "exclusive right of access" does not preclude use by the servient owner that is not inconsistent with the dominant right.

Walton v. Capital Land, Inc., 477 S.E. 2d 499 (Va. 1996)

The Virginia Supreme Court, in what it characterized as a decision of first impression in Virginia, reversed the trial court's conclusion that the granting of an exclusive right precluded the grantor from making any use of the property. The court upheld the trial court's determination that the dominant owner had the exclusive right to license uses of the right of way to parties other than the servient owner.

Comment 1: The case is consistent with established doctrine, and indeed cites the old Restatement and the new Thomas Edition of Thompson on Real Property as authority. There is still the bedeviling question of what constitutes the "servient owner's use." Presumably invitees of the servient owner can use the easement to reach the servient owner's place of business. And presumably the servient owner can cross over the easement to access neighboring properties. But can the servient owner license invitees to acess neighboring properties? For instance, if the neighboring property is a public lake, does the servient owner share the right to sell access over his property to that lake, or is the exclusive licensing right held by the dominant owner?

Presumably the answer is that the dominant owner holds the exclusive right. This certainly would be the view of the Old Restatement. But it could be tricky to identify when the servient owner is licensing rather than inviting. Note, however, that in any event the servient owner's activities cannot impede the dominant's use of the easement for the dominant's authorized purposes.

Comment 2: There are circumstances in which an easement holder wants to have sole physical access to the area covered by the easement, such as where the easement is for high voltage power lines or high pressure gas pipes. Some courts have relied upon context and inference to conclude that the servient owner would have no shared use rights in such cases. See, e.g. Orange County v. Citgo Pipeline Co., 934 S.W.2d 472 (Tex. App.--Beaumont 1996, writ denied). (Gas pipeline - no "exclusive" language). It certainly would be wiser for the parties drafting such agreements to make their intent clear, and not to rely simply on the term "exclusive."

Comment 3: The court's comment that a general exclusive right of use is effectively a grant in fee is only dicta here, and is probably correct so far as it goes, but raises some interesting questions for the future. For instance, some parties interested in dodging CERCLA liability may attempt to obtain a general exclusive surface use but leave subsurface rights to the grantor. Is this a transfer of an absolute ownership interest in the survace with a "carve out" of subsurface rights, and not an easement? CERCLA mavens would like to know. If it is treated as a fee, we'll start to see general exclusive rights to surface use for all purpose but one or two incidential ones, trying to preserve the easement "character" of the grant.

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