Daily Development for Monday, March 29, 1999

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

EASEMENTS; REMEDIES; LACHES: A delay of nine months to raise a claim of encroachment by a building upon an easement does not give rise to a defense of laches, even if the encroacher undertakes substantial new construction during that period.

Vossen v. Forrester, 963 P.2d 157 (Or. 1998).

Owner acquired property for purposes of building a home in a scenic coastal area. The deed showed no easements, but the title report showed several easements across the property. When owner applied for a building permit to build a house, a group called "Friends of the 804 Trail" commenced litigation objecting that the lot was too small to accomodate a house. The court does not indicate that the "804 Trail" was in fact on one of the easements, and the editor assumes that it was not. The planning agency granted the building permit, and the Friends commenced an appeal.

While the appeal was pending, Owner commenced development of the lot. Owner first located boulders and landscaping on a portion of the property. These activities encroached upon an easement serving the owners of four nearby lots (not the trail easement, although it provided access to "a public trail.") There was no visible evidence of the easement on the land, and Owner testified that it had done no survey and had no actual knowledge of the location of the easement, although it was shown on the title report.

The dominant owners of the encroached upon easement did not object and did not bring suit. They testified that they anticipated that Owner would be prohibited from building the house in any event as a consequence of the then pending appeal of the building permit. Later, Owner commenced building the house itself, and the construction encroached almost three feet onto the sixteen foot easement. Still, the dominant owners said nothing, as the appeal of the building permit matter apparently was still pending. Near the completion of construction, the dominant owners demanded the right to survey, and then promptly brought suit for an injunction ordering removal of the encroachment.

Owner defended the suit on the grounds of laches. The court here held that the laches period indeed did begin to run from the time the dominant owners first noticed that the boulders probably intruded upon their easement. The court also held that the excuse that the dominant owners expected the matter to be resolved by litigation was no excuse. The court acknowledged authority in which pending litigation did provide such an excuse, but observed that the litigation in this case addressed a quite distinct issue the legitimacy of building a house at all as opposed to the issue of the house's location.

Nevertheless, the court held that the laches doctrine did not bar the dominant owners, notwithstanding the nine month delay and the substantial construction. The court pointed out that Owner had the burden of proof to establish the laches claim. It noted that the adverse possession period for the encroachment was ten years. There was nothing to indicate to the dominant owners that Owner was unaware of the encroachment. Certainly they had done nothing to mislead him. Consequently, their bringing an action only nine months after commencent of the encroachment was not barred by laches.

Comment: In a part of the case reported under the heading "Easements; Remedies; Injunction," the court eventually denied the injunction and gave alternative equitable relief, but the holding on laches here is a significant one, since it emphasizes the burden on the encroacher and upholds the rights of the owners of the easement to take a measured pace in protecting their interests when they play no role in misleading the party who has invaded those interests.

EASEMENTS; REMEDIES; INJUNCTION: Court may balance equities and refuse to grant an injunction to remove an encroachment on an easement where the enroachment was made in good faith and the dominant owner can be provided an alternative route across the servient owner's land.

Vossen v. Forrester, 963 P.2d 157 (Or. 1998).

Owner constructed a house that encroached almost three feet onto a sixteen foot easement. The trial court concluded that Owner had "innocently encroached" in that Owner had no actual knowledge of the encroachment, although it had actual knowledge of the existence of the easement. The easement was not visible on the property at the time of construction.

Owner argued that the balance of equities favored the denial of the injunction to remove the encroachment, as the foundation of the house was "built to withstand tsunamis" and removal of the encroaching portion of the foundation would result effectively in the destruction of the entire house. It offered an alternative routing of the easement that apparently caused no inconvenience to the dominant owners.

Balancing the equities, the court denied the injunction on the condition that the alternative easement be provided.

Comment 1: This case is consistent with those cases in which courts exercise "Solomonic wisdom" to prevent injunctions that will result in undue hardship. Although the editor would not condone the refusal to enjoin an encroachment of this magnitude on the ownership rights of another, in this case rights encroached upon were simply rights of use, and their location was not a matter of high value to the dominant owners, who apparently were really interested in the removal of the house, rather than the protection of their use rights.

Comment 2: The appeals court did not inquire into the trial court's conclusion of good faith on the part of the Owner. But something is a bit fishy here. The owner had already undergone extensive litigation challenging the building permit for the house, and obviously was investing a considerable amount of money here, including the construction of a "tsunami resistant" foundation. With all of this investment, is it really that credible that the owner failed to survey the location of recorded easements of which the owner had actual knowledge before it commenced construction? If it did fail to do so, was it being "deliberately ignorant?"

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