Daily Development for
Tuesday, October 27, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

EASEMENTS; SCOPE: Dominant owner has right to make use of entire width of right of way easement, but servient tenement may be able object to dominant owner removing trees from easement on grounds by showing that such removal is not necessary to complete enjoyment of the easement.

Montana v. Blount, 1998 WL 293737 (Gt. Ct. App. 6/4/98).

Blount, a grantor/dominant tenant, had reserved an easement over lots that he subdivided from his retained parcel. The easement, shown on the subdivision plat, described a 50 foot wide roadway access beneifitting his retained property and the other subdivided lots. Thereafter, Blount had driven to and from the highway across an area on and off the 50 foot wide area, driving around trees that were located within it. At a later, time, Blount determined to cut down all of the trees within the easement area. Montana, a remote grantee of one of the servient lots, sought to enjoin removal of trees, arguing that the trees did not block reasonable access across the easement.

The trial court refused the injunction, holding that Blount had the right of access across every foot of the fifty foot wide easement, and could remove such trees as it chose.

On appeal: held: Affirmed. The Georgia Court of Appeals first seemed to say that the question whether Blount had a reasonable need to "clear cut" the easement in order to use it was of no consequence. Later, however, it backed off this conclusion a bit.

First, the court stated:

"Where . . . the grantor creates easements [by subdivision plat], such easement rights include full enjoyment of the easement created, and the subsequent grantee was not conveyed the right to require the easement holder to show the "reasonable necessity" for the use of such easment previously expressly granted, because such easements are corporeal hereditaments appurtenant to such subsequently acquired lots."

Later, however, the court seemed to suggest that the question was merely one of burden of proof, and that the servient tenant could have won had it shown affirmatively that the dominant tenant's use would not have been affected:

"[T]he recorded subdivision plat and deeds to the subdivision lots, as the intent of the grantor, create a legal rebuttable presumption that "reasonably necessary use," "fair," or "reasonable enjoyment" of the easement requires the full use of the right of way or street as platted and dedicated. In this case, Montana's evidence failed to rebut the legal presumption that easement holders did not have a "reasonable necessity" or need for full "reasonable enjoyment of the easement" that encompassed the entire easement right of way, and he failed to show grounds to enjoin the clear cutting of the right of way within the sound discretion of the trial court."

Comment: The difference between the two positions stated by the court in this brief opinion is profound. It deals with the question, raised recently in another DIRT DD, of whether an easement is indeed a property right, or, perhaps better stated, what are the limits on the property rights conveyed in an easement.

Unlike an interest in fee, an easement is the creation of a shared interest in the same physical space. Although the use rights of the dominant tenant have priority, the servient tenant still has all residual rights not conveyed. Thus, if the dominant tenant has an actual need to use every square foot of the right of way, the servient tenant should not be able to require the dominant tenant to another area outside of the easement, even if the alternate area is, objectively, a "reasonable alternative." The dominant owner's right to carry out his uses within the easement is paramount to any right of the servient owner to object.

But the servient owner should be permitted such uses of the easement area as are not inconsistent with the rights conveyed to the dominant owner. Thus where the dominant owner reasonably can carry out all the intended uses on the easement notwithstanding the servient's activities on the easement, the dominant should have no objection to the servient's activities.

Here, the maintenance of the trees was arguably a reasonable use by the servient tenant so long as there was no unreasonable interference with the dominant owner's activities. The editor has no objection, however, that the servient tenant should have the burden of proof in demonstrating this fact to the court. Thus, the editor agrees with the second statement made by the court above that the servient tenant has the burden of proof that his activities do not interfere with the "reasonable" use by the dominant tenant, but if the servient can show this, the servient can conduct such activities in the easement area notwithstanding the dominant's objection.

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 16, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.