Easements Flashcards
Moonlight Graham owns a farm, Dreamfield Acres. He grants an easement to the local utility company to install, maintain, and replace underground pipes in a 10-foot-wide strip of land across the farm. The utility promptly records the deed creating the easement, and installs the pipes. Five years later, Moonlight sells the land to Kevin via a deed that doesn’t mention the easement. The utility company doesn’t come back for ten years after Kevin moves in, during which time Kevin, responding to a vision, clears some of the land and builds a fully equipped baseball diamond, complete with bleachers, lights, electronic scoreboard, and a refreshment stand. Unfortunately, the easement passes smack dab through what has become the infield. Shortly after Kevin builds the diamond, the utility decides to replace corroding pipes under the infield. Although it replaces the pipes in a way that does as little damage to the field as possible, the pitcher’s mound is destroyed, and will cost $3,000 to rebuild. Can Kevin require the utility to pay for the rebuilding?
No. Unless otherwise agreed at the time the easement is created, the beneficiary of an easement has the right and duty to maintain and repair the easement. The easement is said to include a “secondary easement” to do anything reasonably necessary to enjoy the benefits of the “main” easement. As long the easement holder doesn’t exceed the scope of the easement in doing the repairs, and doesn’t cause unnecessary damage to the servient estate, the easement holder is not required to pay for damage caused by the repairs, or to restore the property to its pre-repair purpose. See Rest. 3d (Prop.—Servitudes), §4.13(1)(a) (beneficiary has duty to the servient holder to repair and maintain “to the extent necessary to (a) prevent UNREASONABLE INTERFERENCE with the enjoyment of the estate”; therefore, by negative implication, beneficiary does not have the duty to avoid “reasonable” interference with the servient holder’s enjoyment).
NOTE: Say the utility caused more damage than reasonably necessary in replacing the pipes, or alternatively, unreasonably let the pipes fall into disrepair so they burst and flooded the farmhouse. Either of these behaviors would be held to have caused an unreasonable interference with Kevin’s enjoyment of the servient estate, for which the utility would be liable for damages.
RELATED ISSUE: Note that Kevin took the farm subject to the easement because at the time he bought, he had record notice of the easement’s existence (because the deed by which his grantor, Graham, conveyed the easement was properly recorded).
The Wizard of Oz has a right-of-way in the form of a dirt path over the Emerald Acres to Munchkinland. The owner of Emerald Acres, Tin Man, and his friends frequently use the path, and Tin Man wants to pave it with yellow bricks. The bricks will not significantly interfere with the Wizard’s ability to use the right-of-way. May Tin Man do the paving over the Wizard’s objection?
Yes, because his use and intended changes do not interfere with the Wizard’s use of his right-of-way. See Rest. 3d (Prop.—Servitudes), §4.9, stating that unless the document or circumstances indicate a contrary intent, “[T]he holder of the servient estate is entitled to make any use of the servient estate that does not unreasonably interfere with enjoyment of the servitude.” Because there is no indication on these facts that Tin Man and Wizard agreed otherwise, Tin Man may use and improve the path and permit others to do so, as long as his improvements do not unreasonably interfere with Wizard’s use of the right of way (which the facts tell us they don’t).
Ray owns West Fork and Bobby owns the adjacent East Fork. The two properties were previously under common ownership. While the properties were under common ownership, their owner occasionally used a dirt road over East Fork to get his jeeps and tractors from West Fork to the public road. Assume that when the parcels were severed, West Fork became the beneficiary of an easement implied from prior use regarding the dirt road. At the time of severance, East Fork contained, and still contains, a house (now lived in by Bobby and his family) 20 feet from the dirt road. West Fork, which had been a cornfield up until recently, has now been converted by Ray into a ranch, on which Ray is raising 200 head of cattle. Ray uses the path over Bobby’s land to take the herd out for its daily exercise. That use causes considerably more noise and disruption to Bobby and his family than the passage of jeeps and tractors ever did. Can Bobby obtain an injunction prohibiting Ray from using the dirt road in this way?
Yes. Unless the relevant documents or circumstances indicate otherwise, an easement may normally be used only for the purposes for which it was originally created. However, “[t]he MANNER, FREQUENCY, and INTENSITY of the use may CHANGE over time to . . . accommodate normal development of the dominant estate[.]” Rest. 3d (Prop.—Servitudes), §4.10. But ordinarily, the holder of the dominant estate “is not entitled to cause unreasonable damage to the servient estate or INTERFERE UNREASONABLY with its enjoyment.” Id. When, as here, the easement is implied from prior use (as opposed to, for instance, being created by express grant), the use is defined quite NARROWLY, “so that only the use that created the easement and CLOSELY RELATED ANCILLARY USES are included within the purpose.” Id. at Comment d.
Here, the prior use that caused the implied easement to arise was occasional use for access to the road by the common owner’s jeeps and trailers. It is very unlikely that the two-ways daily crossing of 200 head of cattle over a dirt road would be considered to be an ancillary use “closely related” to this original use. That’s especially true given the significant (and unreasonable) interference that the cattle crossings are causing to Bobby’s family’s use and enjoyment of East Fork (the servient estate)
It’s the year 2050. George Jetson and Stanley Sprocket are adjacent neighbors in suburbia. Jetson has an express right-of-way, dating to 1950, to use a path over Sprocket’s property “for ingress and egress to and from Route 123,” a public highway that’s adjacent to Sprocket’s property on the other side from Jetson. Although the 200-foot path has always been used for cars, Jetson buys himself a rocket-powered jetmobile, a new technology that has achieved a 30% penetration of the suburban-commuter market over the last ten years. The jet lets Jetson fly to work in 45 seconds; Jetson uses the path as a runway. On take-off, this use requires the jet to accelerate to 300 mph while it’s still on the runway, and makes noise equal to that of ten cars; the jet is in the air by the time it gets to the highway. When Sprocket complains about danger from the extra speed and extra noise, Jetson claims that his new use is permissible, since he’s simply using an appropriate, modern method of getting to and from his property via the path. Is Jetson’s new use proper?
No, probably. The Third Restatement, in its provisions on servitudes, probably represents the consensus on the relevant points. The Restatement says that some change in how the easement is used is permissible where the change is “REASONABLY NECESSARY for the convenient enjoyment of the [easement].” Rest. 3d (Prop.—Servitudes), §4.10. So that clause obviously helps Jetson. And Jetson could point to a further sentence in the same Restatement provision, stating that “The MANNER, FREQUENCY, and INTENSITY of the use may CHANGE over time to take advantage of DEVELOPMENTS IN TECHNOLOGY and to accommodate normal development of the dominant estate or enterprise benefited by the servitude.” Id. But Sprocket can point to still another sentence in the same Restatement provision, saying that where the document creating the easement does not expressly provide otherwise, “the holder [of the easement] is NOT ENTITLED to cause UNREASONABLE DAMAGE to the servient estate or INTERFERE UNREASONABLY with its enjoyment.” Id.
Sprocket would probably be successful in arguing that speeds of 300 mph on a suburban driveway, and noise equal to that of ten cars, together are so much more dangerous and unpleasant than the single-car use contemplated by a suburban right-of-way in 1950 that the present use “interferes unreasonably” with Sprocket’s enjoyment of his property. And if the court agrees, the fact that the new use is “tak[ing] advantage of developments in technology” would be overridden by the “no unreasonable interference” provision. Also, Sprocket can make the powerful argument that the new use is not fulfilling the easement’s stated purpose of allowing Jetson get “to and from Route 123,” since the jet is airborne before it ever touches the highway.
Angelina lives directly west of Jennifer. Angelina has an express easement allowing her to walk along a well-worn dirt footpath running east-west along the middle (“middle” meaning in terms of the north-to-south axis) of Jennifer’s land. Taking this path lets Angelina get to Smith Avenue, the public road that runs north-south along the eastern edge of Jennifer’s property. Angelina takes this route twice a day, going to and returning from work. Famous film star Brad (who at the time is Jennifer’s boyfriend) moves in directly south of Jennifer. From then on, for her daily commute Angelina continues to go east-west along the first part of the footpath, but then leaves the path by turning sharply right for 30 feet, which brings her to a point from which she can see Brad’s backyard and (she hopes) Brad himself. After getting her view, she then turns left, heading easterly along a new pathway she cuts along the southern border of Jennifer’s property, until she gets to Smith Avenue. Because Jennifer’s property is mostly scrubland, the new route does not cause a significant burden on Jennifer’s use or enjoyment of her own land. Jennifer seeks to enjoin Angelina’s use of the new shortcut. Is she entitled to the injunction?
Yes. The traditional rule is that where an easement has a SPECIFIC LOCATION (whether fixed through a writing [as here], implied from prior use, or created by means of a prescriptive easement over a particular route), THE EASEMENT CANNOT BE UNILATERALLY RELOCATED BY EITHER PARTY. Therefore, the easement can be relocated only via MUTUAL AGREEMENT of the dominant (Angelina) and servient (Jennifer) tenement holders, according to the traditional rule. SW §8.7. So under the traditional rule, Jennifer is entitled to enjoin Angelina from using the new route, even though the use doesn’t meaningfully burden Jennifer (except perhaps emotionally).
The Third Restatement rule, which is gaining adherents, changes this “mutual relocation only” limitation. The Restatement grants the SERVIENT OWNER the right to change the location at his expense if the change does not “(a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.” Rest. 3d (Prop.—Servitudes), §4.8. But this newer rule wouldn’t help Angelina, since it lets ONLY THE SERVIENT OWNER, not the dominant one, make the unilateral change in some circumstances. Cf. Id. at Comment f.
RELATED ISSUE: If the location is NOT specified when the easement is created, the servient holder may choose any reasonable, convenient location for it, but once chosen, under the traditional rule the location cannot be changed.
Paul Pennyfeather owns Llanabba Castle. His next-door neighbor to the northwest is Fagan. Pennyfeather signs a document (executed with the formalities needed for a deed) that grants “an easement to Fagan to use the gravel pathway running west-to-east on my property so that he can easily pass on foot from his property to the beach immediately east of my property.” Some time thereafter, Fagan stops visiting the beach. He therefore gives his friend Captain Grimes, who lives immediately south of Fagan (and also directly southwest of Llanabba Castle), a deed properly executed by Fagan that says, “I hereby convey to you my easement to cross the Llanabba Castle grounds to get to the beach.” Under authority of this document, Grimes begins to use the gravel pathway. Can Pennyfeather get an injunction against Grimes’ use of the easement?
Yes, Pennyfeather can enjoin Grimes’ use of the shortcut. To solve this problem, we first have to decide what type of easement (appurtenant vs. in gross) Fagan has across Llanabba. It’s an appurtenant easement: the character of the easement (appurtenant vs. in gross) is not specified, and a conclusion that the easement is appurtenant (i.e., an easement whose benefit is specific to ownership in a particular parcel) is preferred over a conclusion that the easement is in gross. (Also, the wording of the easement, “so that [Fagan] can easily pass on foot from his property . . .” implies that the easement was granted in conjunction with Fagan’s ownership of that particular property.)
The rule is that the benefits of an appurtenant easement MAY NOT BE SEVERED FROM THE BENEFITTED PARCEL AND SEPARATELY TRANSFERRED . See, e.g., Rest. 3d (Prop.—Servitudes), §5.6: Except in circumstances not involved here, “an appurtenant benefit MAY NOT BE SEVERED FROM THE BENEFITTED PARCEL AND SEPARATELY from all or part of the benefitted property.” In other words, an appurtenant easement is part and parcel of the dominant (benefitted) estate, and cannot become annexed to another parcel of property.
Alice Nelson, housekeeper for the Brady Bunch, buys a house that is immediately southwest of the Bradys’ business (which is a non–alcohol-serving teen dance club). Alice grants the Bradys an easement in the form of a right-of-way over the back of her property, so that customers of the club can more easily get from the public road to the club. The Bradys subsequently find that the dance club isn’t generating as much cash as they’d hoped. The Bradys then buy the larger lot behind their original lot; Alice’s house is to the northwest of this new lot. The Bradys close the dance club and demolish the building it was in; they then build an outdoor concert arena extending over both lots. The new business is much more profitable. The customer traffic over Alice’s property is the same, even though it’s now serving both the Bradys’ old and new lots. Alice seeks to either (a) enjoin the Bradys from using the easement; or (b) collect damages from them. Will Alice get either form of relief, and if so, which relief is more likely?
Alice will certainly get one of the two forms of relief; probably the court will award her damages.
Under these facts, the Bradys have an express easement appurtenant over Alice’s land to serve their original parcel. An easement appurtenant can be used only to benefit the dominant tenement, and no other. See, e.g., Rest. 3d (Prop.—Servitudes), §4.11: Unless the relevant documents provide otherwise, “An appurtenant easement . . . may not be used for the benefit of property OTHER THAN THE DOMINANT ESTATE.” This means that only the Bradys’ FIRST lot can benefit from the easement, not the second one. If there was a way to restrict the use to the first lot, Alice could obtain an injunction restricting use to the first lot. Under facts like these, however—one building over two lots—this wouldn’t seem possible. On the other hand, the burden on Alice’s lot is no greater than it was under the original arrangement. In this situation, a court is likely to give Alice monetary damages instead of injunctive relief (though these damages are likely to be small or nominal, since we’re told that the burden on Alice is no greater than it was under the original dance-club arrangement). See, e.g., Brown v. Voss, 715 P.2d 514 (Wash. 1986) (where the Defendants’ use of easement to serve a non-dominant parcel caused no meaningful hardship to Plaintiff, and denial of that use would be a great hardship to the Ds, trial court properly awarded P only $1 in nominal damages and properly denied P an injunction)
Cindy Lou Hoo owns Hoovilla. She takes no action (for more than the statutory period on ejectment actions) while schoolchildren almost daily cross over a corner of the property to get to school. This uses therefore ripens into a prescriptive easement in favor of the public to use the path, which has become a worn dirt path. Cindy then sells Hoovilla to the Grinch, who at the time he takes has no personal knowledge of the easement. Do the schoolchildren still have the right to use the footpath?
Yes. The easement here is an appurtenant easement by prescription. Appurtenant easements are deemed to RUN WITH THE LAND on the burden (as well as benefit) side—that is, they bind successors in interest to the burdened parcel. See Rest. 3d (Prop.—Servitudes), §5.2: With narrow exceptions, “an appurtenant benefit or burden runs to ALL SUBSEQUENT OWNERS AND POSSESSORS of the . . . benefitted or burdened property[.]” None of the narrow exceptions applies here. So the burden of the prescriptive easement on the servient estate (Hoovilla) became binding on Grinch when he took, even though he took without knowledge, and continued to the benefit of the public as holders of the easement.
It’s hard to feel too sorry for Grinch, because he was on INQUIRY notice of the easement’s existence—he could have discovered its probable existence by physically inspecting the property and seeing the dirt path. But even if the existence of the easement could NOT have easily been determined by him (e.g., it was unrecorded and not readily apparent from inspection because there was no indication of a worn footpath), he would STILL have been bound. And, by the way, the fact that the easement wasn’t (and probably couldn’t have been) recorded means that he won’t get the protection from whatever recording act the jurisdiction has, even if he was a BFP.
SW §§8.13 et seq.
Princess Leia owns a fabulous home with a well-equipped gym. She conveys to her friend Han Solo a signed document labeled an “easement,” which gives Solo permission enter her house at any time and use the gym and swimming pool. Han transfers the easement to Jabba the Hut, whom Leia despises. Does Jabba have an easement?
No.
TRADITIONAL RULE: A personal easement, or easement in gross, is NOT transferable under any circumstances (unlike an easement appurtenant—relating to the easement holder’s ownership of land—and a PROFIT IN GROSS, both of which ARE transferable).
MODERN RULE: Modern courts allow transfer of the benefit, even if it is a benefit in gross, as long as the benefit is NOT “PERSONAL.” But if the benefit IS “personal,” then it’s NOT transferable whether it’s IN GROSS OR APPURTENANT. Rest. 3d (Prop.—Servitudes), §4.6(2). So when is the benefit “personal”? The Third Restatement gives this definition: “A benefit is personal if the relationship of the parties, consideration paid, nature of the servitude [an easement is a type of servitude], or other circumstances indicate that the parties SHOULD NOT HAVE REASONABLY EXPECTED THAT THE SERVITUDE BENEFIT WOULD PASS TO A SUCCESSOR to the original beneficiary.” Id. By this standard, the easement here was clearly personal, as indicated by the friendship between the parties, the absence of any consideration, and the fact that use of the easement required entry into Leia’s home.
NOTE: Leia could (and if well-lawyered probably should) have granted Han Solo not an easement but a license under these facts—a personal, revocable, non-transferable right to use another’s property.
SW §8.2.
Nick Parker owns a vineyard on 100 acres he owns. He also owns an easement in the form of a footpath across some neighboring land that he uses daily to reach the southern 20 acres of his vineyard. After several years, Nick concludes that the southern portion of the vineyard is not being economically productive at current wine prices, so he stops cultivating that part, though he continues cultivating the non-southern acreage. He also stops using the footpath, because he is no longer visiting the southern portion. After one year of non-use of the path, can the neighboring landowner successfully claim that the easement has been terminated by abandonment?
No. It’s true that an easement can be extinguished by abandonment. As the Third Restatement puts it, “A servitude benefit [including the benefit of an easement] is extinguished by abandonment when the BENEFICIARY RELINQUISHES THE RIGHTS created by [the] servitude.” Rest. 3d (Prop.—Servitudes), §7.4. And abandonment can be (and usually is) proved by CIRCUMSTANTIAL EVIDENCE rather than by direct expressions of intent. Id., Comment a.
But the mere non-use of the easement, even for a sustained period, “is seldom sufficient to persuade a court that abandonment has occurred. Some ADDITIONAL ACTION on the part of the beneficiary inconsistent with continued existence of the servitude is normally required.” Id., Comment c. Here, the facts indicate that Nick’s non-use is directly attributable to currently weak wine prices. But since wine prices may well strengthen enough in the future that Nick will want to resume cultivating the southern acreage, and because he has taken no “additional action . . . inconsistent with continued existence of the servitude,” a court is very unlikely to find that he has met the hard-to-satisfy requirements for abandonment.
NOTE: But suppose that Nick sold the southern portion to a developer, who built apartments on it, and who put up a concrete wall where the footpath entered the southern portion. These actions by Nick’s successor would so unequivocally indicate an intent to abandon the easement that a court probably would be convinced that abandonment had occurred.
SW §8.12; E Ch.9-VI(H).
