Daily Development for
Tuesday, October 29, 1998

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

EASEMENTS; SCOPE. A grantee of an easement may not restricted to uses which were current at the time of the grant of the easement, even if such uses are described specifically in the grant, but may reasonably change the use over time so long as the burden on the servient estate is not increased.

Kell v. Oppenlander, 961 P.2d 861 (Or. App. 1998).

This quiet title action centered on the interpretation of an express easement "for the maintenance and use of the existing structure over the Easterly 5 feet of lot 15." The easement further provided that "[t]his easement shall become void and of no further consequence upon removal of the encroaching garage."

The servient owner later transferred the property to a third party.

The defendant later did some construction work on the structure to change its use from a garage to a storage room, although the structure looked essentially the same, was located in the same place and burdened the plaintiff's use of his property to the same extent as it had before the work. The plaintiff claimed that the change in use of the structure terminated the easement.

The Oregon Court of Appeals affirmed the trial court holding that the change in use of the structure did not terminate the easement because the operative language of the easement was for the "maintenance and use of the existing structure," and the later reference to the garage use, in the view of the court, was simply a shorthand reference to the structure. Further, the construction work done to the building was no more than the "maintenance" permitted under the easement, where the ultimate size, shape and impact of the structure remained unchanged.

The court went further, however, and issued some legal doctrine concerning interpretation of easements generally. It stated that a grantee is allowed to change the use of an easement over time so long as the burden on the servient estate is not substantially increased. The Court determined that the defendant's change in the use did not alter the size or shape of the structure or increase the burden on plaintiff's estate, and found the current use of the structure to be similar to its previous use. Accordingly, the court held that "the use of the structure as a storage room rather than garage is within the scope of uses permitted by the easement."

Comment 1: It is important to note the limitation that the court imposes on the operation of the doctrine set forth in the second holding described above. It cites from a 1959 Oregon Supreme Court case that indicates that reasonable changes are permitted only where the intent of the parties is ambiguous:

"Where the language is equivocal and there is no evidence or only scant evidence of what the parties intended, as is true here, the Supreme Court gives an easement its ordinary scope, permitting the use reasonably to change with changing needs."

This statement articulates a well established interpretive precept, but it is important to note the limitation - the parties to an easement can expressly limit the uses to identified purposes, and expansion or alteration thereafter can and should be severely limited. In the particular case, the editor is comfortable with the court's first interpretive approach - that the parties likely did not intend to provide an easement for only a garage. But it they did, the editor would have expected the court to prohibit the conversion of the structure to something other than a garage. If the expanded use has value, the servient owner is entitled to be paid for the increased value that the dominant owner intends.

Comment 2: In the editor's experience, easements are the most underwritten of property agreements. Because they involve less than transfer of complete ownership or possession, lawyers are tempted to follow their client's instincts to "keep it simple." But simplicity only delivers the client into the hands of a court's third party judgment of reasonableness when disputes arise. And, in the case of permanent easements, it is inevitable that disputes eventually will arise, because the relative use patterns of the two parcels involved almost certainly will evolve. Both dominant and servient interests are best served by at least some effort at detail in the description of the intended use. In many cases, it indeed would be best to describe the use in terms of impact and area rather than express purpose, but the dominant tenant should expect to pay more for such flexibility.

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