PAYMENT FOR AND EXTINGUISHMENT OF EASEMENTS: SPECIAL ISSUES UTAH STATE BAR SUMMER CONVENTION Snowmass, Colorado Friday, July 18, 2014 11:30 a.m. RUSSELL A. CLINE Presenter CRIPPEN & CLINE, P.C. 10 South 100 West, Suite 425 Salt Lake City, UT 84101 rc@cc-law.com
EXPRESS EASEMENTS 1. Written easements are interpreted based on the ordinary rules of contract construction. Under Utah law, [w]here the parties to a deed use broad language that admits of no qualification, courts should honor that choice and hold them to it. Stern v. Metro. Water Dist. of Salt Lake & Sandy, 2012 UT 16, 59, 274 P.3d 935 (finding that scope of canal purposes was broad enough to include culinary water and to refer to an enclosed pipeline); [d]eeds are construed according to ordinary rules of contract construction. If contract terms are clear and unambiguous, we normally interpret them according to their plain and ordinary meaning without resorting to extrinsic evidence. ) Homer v. Smith, 866 P.2d 622, 629 (Utah Ct. App. 1993) (citing Hartman v. Potter, 596 P.2d 653, 656 (Utah 1979); Equitable Life & Cas. Ins. Co. v. Ross, 849 P.2d 1187, 1192 (Utah Ct. App. 1993)). 2. Where the description of the easement is plain and unambiguous parole evidence is inadmissible. It is the court's duty to construe instruments as written and deeds are to be construed like other written instruments. When a deed is plain and unambiguous, parole evidence is not admissible to vary its terms. Gillmor v. Cummings, 904 P.2d 703, 706 (Utah Ct. App. 1995) (quoting Hartman, 596 P.2d at 656). 3. A written easement may be limited by historical use. In Wood v. Ashby, 253 P.2d 351, 354 (Utah 1952), the original deed from grantor to grantee reserved to the grantor a right of way for road purposes across the above described premises. Id. at 352. Although the two parcels were adjacent at the time of the conveyance, there was a 2
fence and a gate through which vehicle access occurred. Id. at 352-53. The court found that reservation of a right of way for road access purposes was a restricted reservation rather than a general reservation, and limited to access through the gate. Id. at 353. [W]here the provisions of a deed are doubtful the court may also look to the practical construction placed upon the instrument by the parties. Wood, 253 P.2d at 354; Stern, 2012 UT 16, 60 n.31 (quoting 4-34 Powell on Real Property 34.12 (Michael A. Wolf ed., 2012) ( When a conveyance is unclear as to the scope of the intended easement, the subsequent behavior of the parties can constitute a practical construction furnishing the missing details. )). In interpreting the scope of the easement, the Wood court found that the construction of the fence and the gate allowing ingress and egress was a construction of the deed by the parties and established the location of the right of way. 253 P.2d at 354. 4. Written easements need not be limited by historical use. See 4-34 Powell on Real Property 34.12 (Michael A. Wolf ed., 2012) (citing, among others, Lynam v. Clayville, 128 A.2d 316, 318 (Del. 1957) (finding that unlimited grant of easement permitting access to retained land was not limited to its original use for farming purposes); Cooper v. Sawyer, 405 P.2d 394, 401 (Haw. 1965) ( Under an unrestricted grant of a right of way by easement, the possessor of the dominant tenement may use the right of way in a manner which allows the fullest possible development of the dominant estate within the limits of reasonable enjoyment... Such a way is not limited to the purposes for which the dominant estate was used at the time the way was created. (quoting Mahon v. Tully, 139 N.E. 797, 799 (Mass. 1923)). 3
5. An express easement is generally not extinguished by subdivision, even where the subdivided parcel does not abut the way, as long as the same access is used. An express easement is generally not extinguished by subdivision where a parcel is subdivided: An easement is not extinguished by a division of the estate to which it is appurtenant, but the owner or assignee of any portion of that estate may claim the right, so far as it is applicable to his part of the property, provided the right can be enjoyed, as to the respective parcels, without any additional burden upon the servient estate; accordingly, a right of way, which is appurtenant to an estate, is appurtenant to every part of it, no matter into how many parts it may be subdivided, and it inures to the benefit of the owners of all subdivisions so situated that it can be used. Rollo v. Nelson, 96 P. 263, 265 (Utah 1908) (quotation omitted). In Bradbury v. Valencia, 2004 WL 1946135, 2004 UT App 289, at *3-4 (unpublished opinion) which involved an express easement, the court stated: although the dominant estate (now the Bradburys parcel) has been divided and no longer abuts the servient estate (now the Valencia s parcel), no evidenced has been presented to suggest that this property division has increased the burden of use of the right-of-way by the dominant estate. (emphasis added) (affirming summary judgment in favor of Bradburys and finding that easement was not extinguished even though it did not abut the way following partition of the dominant estate). See also Wood v. Ashby, 253 P.2d 351, 354 (Utah 1952) ( The question raised by this assignment, it should be noted, is not whether Christensen, should he secure access thereto, may use the decreed restricted way for ingress and egress. Indeed, plaintiff indicates in his brief that he would have no objection to his doing so. ) 4
6. A written easement may be extinguished as to a subdivided parcel that no longer abuts the way that results in an increased burden. In Wood v. Ashby, 253 P.2d 351 (Utah 1952) the original grantor had sold part of the original parcel to a third-party. Although the severed property was adjacent to the servient property, the severed parcel did not abut the way i.e., did not abut the point of access, but one had to cross the other part of the remaining original property to access the gate. The Wood court held that the easement did not grant the third party access to the part of the servient estate that was adjacent to the severed parcel: The partition of the document tenement cannot create a further or additional easement across a servient tenement, and an easement of way does not inure for the benefit of the owner of a parcel which after the division does not abut on the way and where the resulting use will increase the burden upon the servient estate, the right to the easement will be extinguished. Id. at 354. (Emphasis added.) 7. When is an Easement Overburdened? In considering whether an easement has been overburdened: Utah law looks to the language of the grant, the circumstances attending the transaction, the situation of the parties, the state of the thing granted, and the object to be obtained, construing the instrument most strongly against the grantor and most favorably to the grantee, to determine what use is permitted. An overburdening of an easement by the dominant estate may only occur if use of the easement substantially increases use of the servient estate beyond that contemplated by the parties at the time of the grant. Lutheran High Sch. Ass n v. Woodlands III Holdings, LLC, 2003 UT App 403, 15, 81 P.3d 792 (emphasis added). In addition, Utah recognizes the common law presumption that parties to an easement anticipate increased future use and reasonable technological 5
improvements. Stern, 2012 UT 16, 69 & n.39, 274 P.3d 935 (citing, among other authorities, Hubble v. Cache Cnty. Drainage Dist. No. 3, 259 P.2d 893, 896 (Utah 1953) ( [T]he law favors changes and improvements for the benefit of the dominant estate so long as the manifest intent of the parties does not disallow the changes and the burden on the servient tenement is not increased. ); Parris Props., L.L.C. v. Nichols, 700 S.E.2d 848, 854 (Ga. Ct. App. 2010) ( [A] change in the manner, frequency, and intensity of use of the easement within the physical boundaries of the existing easement is permitted without the consent of the other party, so long as the change is not so substantial as to cause unreasonable damage to the servient estate or unreasonably interfere with its enjoyment. )). A severed parcel is not entitled to additional separate access across the servient estate. Wood v. Ashby, 253 P.2d 351, 355 (Utah 1952). To grant additional separate access creates an additional burden. PRESCRIPTIVE EASEMENTS 8. Prescriptive Easement. To establish a claim for prescriptive easement, plaintiffs must prove that their use of defendant s property has been (1) open, (2) notorious, (3) adverse, and (4) continuous for at least 20 years. Van Denburgh v. Sweeney Land Co., 2013 UT App 265, 3, 315 P.3d 1058 (citing Marchant vs. Park City 788 P 2d 520, 524 (Utah 1990)). Plaintiffs have the burden of proving each element by clear and convincing evidence. Id. To be adverse, plaintiffs must prove that plaintiffs use of defendant s property was adverse to the owner of the servient tenement. Am. Jur. 2d Easements and Licenses 55. An acknowledgment within the prescriptive period of a superior right to another party by the person claiming a 6
prescriptive easement prevents the use from being deemed adverse. Id. Adverse use must be a trespassory use and must constitute an actual invasion or infringement of the owner s rights. Id. 56. The use must be against the owner as distinguished from under the owner. Jensen v. Brown, 639 P.2d 150, 152 (Utah 1981). 9. Where a prescriptive easement exists, severance of a parcel (from the dominant estate), that does not abut the servient estate, may extinguish the easement as to the servered parcel. In Alvey Development Corp. v. Mackelprang, 2002 UT App 220, 51 P.3d 45 (Utah Ct. App. 2002), the court held that where a prescriptive easement exists and the dominant estate had been severed and the severed parcel no longer abuts the servient estate, the easement is extinguished as to the severed parcel. Id. 14 ( [A]t the time of the 1987 transfer, Alvey s land did not abut on the way, therefore, Alvey s right to the easement... [was] extinguished. (quoting Wood, 253 P.2d at 354)). EASEMENTS BY IMPLICATION/EASEMENT BY NECESSITY 10. Easement by Implication. The elements necessary to constitute an easement by implication under Utah law are: (1) that unity of title was followed by severance; (2) that the servitude was apparent, obvious, and visible at the time of severance; (3) that the easement was reasonably necessary to the enjoyment of the dominant estate; and (4) that the use of the easement was continuous rather than sporadic. Butler v. Lee, 774 P.2d 1150, 1152 (Utah Ct. App. 1989). 11. Easement by necessity. Under Utah law, an easement by necessity arises where there is a conveyance of part of a tract of land which is so situated that either the 7
part conveyed or the part retained is surrounded with no access to a road to the outer world. Tschaggeny v. Union Pac. Land Resources Corp., 555 P.2d 277, 280 (Utah 1976). 12. Do you have to pay for the acquisition of an easement by necessity or an easement by implication? No (but you do pay for your proportionate share of maintenance costs). An easement by necessity has a right of access that is appurtenant to the dominant parcel and travels with the land, so long as the necessity exists. By acquiring the dominant estate, one has already paid for and procured the legal right of access to and from that parcel.... [I]f a landowner is entitled to an easement by necessity... compensation for the taking should be denied. Fike v. Shelton, 860 So. 2d 1227, 1233 34 (Miss. 2003) (internal quotation marks omitted) (emphasis added). The same is true for easements by implication: The finding of an easement implied from existing use is equivalent to a finding that such easement right was included in the grant of the dominant estate to defendants in 1982. Defendants cannot be forced to purchase, and cannot be held liable for using, that which they already own. Monte v. Di Marco, 596 A.D.2d 1111, 1113 (N.Y. App. Div. 1993). 8