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The Many Uses of a Road
Slade Smith
   

Courts usually follow the plain meaning of the language in land title documents. But courts routinely award rights of use to easement holders that are clearly not within the plain meaning of the allowed uses described by the easement.

When there is a dispute involving conflicting interpretations of the language in an easement, courts often apply a set of general principles to help them resolve the conflict and decide who wins and who loses. One common principle is that the language in the easement is interpreted in the way that favors the grantee, and against the grantor. The reason for doing this is straightforward: the grantor is the one who signed the document, not the grantee; the grantor therefore had an opportunity to review the document and insist that the language be just like she wanted it before he signed it. The grantee had no such opportunity. So according to the reasoning, if there is any ambiguity, it should be resolved in favor of the grantee.

This reasoning breaks down a bit in some cases such as mortgages, where the mortgagee is typically presenting the mortgagor with its pre-printed, form-based mortgage document, but for language that is drafted into an easement, if there is a genuinely ambiguous term in the easement, and the grantor and the grantee have a conflict because they have conflicting but reasonable interpretations of what kind of use of the land that the easement allows, the grantee is usually going to win.

Even after the grantor of the easement sells the property subject to the easement, and the new owner had nothing to do with creating any ambiguous language in the easement document, the easement language will be generally construed against him. The reasoning here could simply be thought of this way—the kinds of use of the land that an easement allows should remain constant when a property is conveyed to a new owner, which means that an easement shouldn’t be interpreted any differently just because there’ a new owner of the land.

But there’s limits to the extent that the grantee is favored when easements are interpreted. For example, if there really isn’t two reasonable interpretations of the language, but rather the easement pretty clearly means what the grantor is claiming it means, and the grantee’s interpretation of the language is a bit of a stretch, then a court may decide that the grantor should win because the easement plainly means what the grantor says it does.

Particularly in right-of-way easements, however, a court will ignore the plain meaning of an easement, and give the easement holder rights of use that are clearly not in the easement. Often this occurs when transport technology advances, and old modes of transportation described in an easement become obsolete; a court will allow use of the easement by the current equivalent mode of transport. So, easement language allowing use of a right of way by horse and buggy will typically now be interpreted to allow cars to use the right of way.

But easement language is often interpreted much more broadly than that. For example, the language involved in a Florida right of way easement dispute read as follows:

[The grantor] does hereby give and grant to the [grantee] a right-of-way for public road purposes and full authority to enter upon, construct and operate a road over and upon the following described lands…

A dispute occurred when the easement holder got permit to build utility poles and power lines on the easement, and then built the power lines. The land owner sued to get the utility poles torn down, arguing that the easement said nothing about allowing utility poles.

In its ruling on the case, the court admitted that a straightforward reading of the easement would confer the easement holder a right to construct and use a road on the easement and nothing else. But the court chose not to interpret the easement by the plain meaning of the words in it. Instead, the court allowed the utility poles to remain. The court explained:

The reasoning underlying this position is that electric, and telephone, lines supply communications and power which were in an earlier age provided through messengers and freight wagons traveling on public highways. So long as the lines are compatible with road traffic they are viewed simply as adaptations of traditional highway uses made because of changing technology. The easement [for a road therefore] includes every reasonable means for the transmission of intelligence, the conveyance of persons, and the transportation of commodities which the advance of civilization may render suitable for a highway.

It should also be noted that courts often interpret roadway easements to allow utility poles when the easement does not provide for them, even when the easement was created recently enough that utility poles were around. It has simply become customary in most jurisdictions to allow right of way easements to be used for power lines, communication lines, even water and sewer lines—pretty much anything that is convenient for the easement holder to connect with modern infrastructure that doesn’t interfere too much with the landowner’s use of the land.

Therefore, if a landowner is granting an easement for a right of way, and specifically doesn't want the easement to be used for power lines or other types of uses, they should make sure that the attorney drafting the deed explicitly prohibits those uses.



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Interesting Post Mr. Smith...

It probably should be recognized that the Courts are literally only used in these situations when the principals involved, the principals being the holders of the interests in either the dominant or servient tenements, are in dispute, wherein lies the REAL problem.

As far as the Florida Court ruling you cite, don't know how recent it was but I was actually taught that same sort of interpretation back in the late 1970's in California relative to upgrades on public roads, private Rights of Way, Railroad Rights of way dating back to the creation of the railroads themselves, and the use of easements for all sorts of Public  and quasi-public Utilities.

What I was told was that no matter how anybody looks at it, with the exception of it being an easement for purely permanent physical encroachment of some sort, that ALL of it had to do with some form or mode of "Transportation". Doesn't matter whether what is being transported is inside an unseen pipeline, moving by the flow of electrons through a wire, or involving the use of a goat cart on the surface with some person out in front leading the goats, the effect on the servient tenement is exactly the same. Absent the permission of the holder of the "owner" of the  servient tenement the party exercising their "right" to use of the easement is at least theoretically depriving the  owner of the servient tenement  of their right to use their property (or even easement) to the fullest potential they might be able to use it for should they choose to do so.

On a far more basic level, there are many things some of us are subjected to daily that are in fact issues relative to the imposition  of "claimed" easements but we like to consider them as something else entirely. For instance, the "conveyance" across property boundary lines of uninvited noise, smoke from Industrial processes (the actual cause of the very first "environmental" law suit in England way back at the beginning of the Industrial Revolution by a landholding Nobleman against an adjacent Factory), or the " legal consent" a dominent tenement holder (for their purposes relative to their property) signs when buying a home next to Farmland, a Golf Course, or even a Park, relative to the possibility of migration of pesticides, wildlife,  or even errant golf balls at times causing either health concerns or property damage. 

As far as an Attorney explicitly prohibiting particular types of uses, it would seem to me that might protect the Attorney for leaving a possible different interpretation available to the Courts, but with respect to the actual overburdening of the easement. at least in the eyes of the client, the Attorney is still on the hook anyway.

A great many of the cases I've seen over the years relative to the "implied" use of easements actually didn't have much to do with that defined subject at all. Boiled down to basics, some people find a line of poles with wires suspended between them to be aesthetically abhorrent, or at least that's what they claim. Then it becomes a question of 1.) whether the pole line could be put somewhere else instead, and/or 2.) whether or not it might be feasable to bury them so as to not damage the landscape view, instead. Most of the time what I've seen is that it turns out the landowner isn't exactly against the use of a pole line, they're against the neighbor doing anything on THEIR property which would require the USE of a pole line, which is another matter entirely..

 

 

 

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