Daily Development for

Thursday, December 4, 1997

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

EASEMENTS; CREATION; DEDICATION: Mere circumstantial evidence that a lot was intended as a roadway is not sufficient to dedicate lot for that use, without more explicit evidence.

Tungsten Holdings, Inc. v. Parker, 938 P.2d 641 (Mont. 1997).

Parker owned an oddly shaped lot, serpentine in proportion. It was 40 feet wide and 2700 feet long. A notation on the tax deed for the lot in question contained the word "road" in the property description. The district court held that the lot was not a roadway despite the lot's configuration and that neighboring parcels would be landlocked if the lot was not deemed a roadway. The Supreme Court of Montana upheld the lower court's decision and ruled that there was no direct evidence converting the lot into a dedicated roadway. The mere fact that the lot was long, had a narrow configuration, and gave the appearance of roadway, and that the lot's developers may have intended it as a roadway, were not sufficient to convert the lot into a dedicated roadway. Therefore, the plaintiff owned the lot free and clear of any easement rights in others, and neither the configuration nor the intent of the developer changed that understanding or to created an easement for a dedicated roadway.

Comment 1: This case, as well as Neighbors and Friends of Viretta Park v. Miller, discussed under the same heading, demonstrate that some courts will be very cautious in going beyond the express language of grant to define the intent of the grantor. Uniform adherence to this practice might well drive parties to real estate agreements to be more careful in demanding proper documentation, thus leading to greater clarity. In fact, however, courts in many instances do infer the existence of rights or limitations on rights based upon the expectations of third parties or the probable intent of the grantor.

Comment 2: There was no easement by implication in this case because, until long after the parcels were severed, no one was using this "roadway" - actually a creek bed - for access to their lots. There wouldn't necessarily be an easement by necessity over this lot - as opposed to other property owned by the original grantor - but in any event the court doesn't discuss the easement by necessity issue at all so we lack the necessary facts.

Comment 3: Note that in this case the court acknowledged that there was no question that when the developer platted this lot he intended to create a road. (This appears to have been after the developer had transferred the lots to the plaintiffs here.) There is also no question that the grantee had knowledge of the probable intent - since the grantee's deed said road right on it. Normally this might put one on inquiry notice, especially given the unique configuration of the parcel. But folks don't see it that way up in Montana.

Comment 4: For a different view about what's required for an implied dedication, see St. Charles Parish School Board v. P & L Investment Corporation, 674 So.2d 218 (La. 1996) (Public may acquire interest in land on which road is built through "tacit dedication," where landowner is aware that public is making permanent improvements in roadway and public uses the roadway for three years.) This case was the DD for November 15, 1996.

EASEMENTS; CREATION; DEDICATION: Although party dedicating public way may have intended to limit use to pedestrians only, court will not honor dedicator's intent unless dedicator used language clearly indicating the restriction.

Neighbors and Friends of Viretta Park v. Miller, 940 P.2d 286 (Wash. App. Div. 1, 1997).

Neighbors living adjacent to Viretta Park sued the City of Seattle and certain neighbors who used right-of-way through the park to gain access to their property. The association brought a wide assortment of claims, arguing that the original intent of the dedicators of the park did not intend to allow vehicular access to the park. However, the Washington Court of Appeals held that the fact that the original plat appeared to contemplate a pedestrian way did not, in the absence of explicit prohibitions contained within the plat, prohibit the City from modifying the plat to allow vehicular access through the right-of-way. Based upon this concept, the City had the right to widen the right-of-way to facilitate vehicular access. For a case involving obverse issues, holding that an attempted dedication was not effective because the dedicator did not clearly express his intent to dedicate, see Tungsten Holdings, Inc. v. Parker, 938 P.2d 641 (Mont. 1997), reported under this heading.

Comment: There is an interesting subtext in this opinion: a couple building an extensive new home adjacent to a park area opposed by existing homeowners in the area, set against the eighty year history of the park and its pathways. The city, perhaps underestimating the opposition, lost on summary judgment below, and came back "big time," winning on virtually every argument as well as every issue, at the appellate level.

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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