Daily Development for Monday, December 13, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

EASEMENTS; TERMINATION; ABANDONMENT: A dominant tenant can be viewed as abandoning an easement by grant when the tenant blocks his own use of the easement by construction of a fence and fails to use the easement, even when the tenant's actions are motivated by the fact that the dominant tenant mistakenly believes that the easement is located elsewhere on the servient property and regularly makes use of the alternative location.

Mueller v. Bohannon, 589 N.W.2d 852 (Neb. 1999)

This case had already made one trip to the appeals court and, apparently, will be making another before too long.

A developer built a roadway providing access to certain subdivision lots and then sold those lots. The developer included a written easement in which the developer intended to cover the roadway he built, but through a mistake the easement did not describe that roadway, but other, adjacent property that the developer owned.

Subsequently, third parties bought both the dominant and servient parcels. The owner of the dominant parcel did not use the road that the developer had built very often, but did use it occasionally. Ultimately, however, a dispute developed. At that time, the parties discovered that the road was not built where the easement was described. The alleged dominant tenant claimed that he had a prescriptive right to use the road at the location where it was built, but the alleged servient tenant claimed that any such use was sporadic and permissive. That case has not yet been resolved.

While the adverse possession case was pending, the court heard another case, this one involving the servient tenant's claim that the original written permanent easement was abandoned. The court clarified earlier rulings concerning the abandonment of easements by grant, holding that mere nonuse, no matter how long continued, will in and of itself be deemed to be abandonment. The party claiming abandonment still must introduce evidence of actions manifesting an intent to abandon.

In this case, however, the dominant tenant actually built a fence in the right of way of the written easement, for stock control purposes. The court found that this act, coupled with the lengthy period of nonuse of the easement (in fact it was never used due to the location of the adjacent "road" demonstrated an intent to abandon.

The dominant tenant argued that there can be no intent to abndon when the party alleged to be abandoning the easement believes that it has a different location and is using that location. The court found this argument unpersuasive. It commented that "equity aids the diligent and not the negligent."

Comment 1: That's a pretty aphorism for the court to cite, but what does equity have to do with this case? We have a granted easement alleged to have been abandoned, and prior case law that states that abandonment is a question of intent. If the dominant holder's actions can be explained in a way to negate an intent to abandon, then how can there be abandonment?

Comment 2: Granted, there may be an equitable basis to find some estoppel or laches on the part of the dominant tenant, if the servient tenant is injured by the carelessness in failing to identify the proper easement area. But the court's ruling applies regardless of the equitable position of the servient tenant. That's just wrong.

Comment 3: In a similar case that is an old chestnut in Property I casebooks, a court refused to find abandonment but then refused to order an injunction to enforce the alternative easement area if the servient tenant offered an easement over the area that the alleged dominant tenant had been using for many years (but not for the prescriptive period). That's the way to handle this case as well. The court must have used a different Property I casebook, as did the lawyers. Too bad. Ironically, a Michigan law professor compiled it.

EASEMENTS; TERMINATION; ABANDONMENT: A presumption of abandonment arises when a dominant owner of a prescriptive or implied easement fails to use the easement for the prescriptive period, but the same presumption does not arise when the easement is an easement by grant. Mueller v. Bohannon, 589 N.W.2d 852 (Neb. 1999), discussed further in another entry under this heading.

In order for a court to find abandonment of an easement by grant, the court holds, the servient tenant must show some affirmative act of the dominant tenant indicating an intent to abandon.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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