§ 4.8 Location, Relocation, And Dimensions Of A Servitude - Uniform Law … of easeme… · ·...

Restatement (Third) of Property (Servitudes) § 4.8 (2000) Restatement of the Law — Property

Restatement (Third) of Property: Servitudes Current through June 2010

Copyright © 2000-2011 by the American Law Institute

Chapter 4. Interpretation Of Servitudes

§ 4.8 Location, Relocation, And Dimensions Of A Servitude

Except where the location and dimensions are determined by the instrument or circumstances surrounding creation of a servitude, they are determined as follows:

(1) The owner of the servient estate has the right within a reasonable time to specify a location that is reasonably suited to carry out the purpose of the servitude.

(2) The dimensions are those reasonably necessary for enjoyment of the servitude.

(3) Unless expressly denied by the terms of an easement, as defined in § 1.2, the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner’s expense, to permit normal use or development of the servient estate, but only if the changes do 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.

Cross-References:

Section 4.9, Servient Owner’s Right to Use Estate Burdened by a Servitude; § 4.10, Use Rights Conferred by a Servitude; § 4.11, Use of Appurtenant Easement or Profit to Serve Property Other Than Dominant Estate; § 4.12, Rights of Holders of Separate Servitudes in Same Property; § 7.10, Modification or Termination of a Servitude Because of Changed Conditions; § 8.3, Availability and Selection of Remedies for Enforcement of Servitudes.

Comment:

a. Application. The rules stated in this section apply only as an aid to determining the intent or expectations of the parties under the rules stated in § 4.1, and to supply terms omitted by the parties in creating a servitude. Subject to the limits stated in Chapter 3, Validity of Servitude Arrangements, the parties are free to determine the location and dimensions of a servitude. If their intent to do so is ascertained, it should be given effect.

b. Location of a servitude, subsection (1). The servient owner is given the power to locate a servitude in the first instance because the servient owner is better able to determine the location that will minimize the servitude’s interference with current value and future development of the servient estate. The owner of the servitude is protected by the requirement that the location be reasonably suited for the purpose. The primary application of this rule is to easements, but it will also apply when the language or circumstances establish that a profit or other servitude is intended to burden only part of the servient estate and the location is not specified.

If the servient owner fails to designate a suitable location within a reasonable time after requested to do so, the owner of the servitude may proceed to locate it. A location is suitable if it reasonably allows the purpose for which the servitude was acquired to be carried out while inflicting the minimum amount of damage on the servient estate. If necessary, the parties

may resort to legal proceedings in which a location should be selected that strikes a balance between minimizing the damage to the servient estate and maximizing the utility to the owner of the servitude.

c. Practical location of a servitude. When improvements are constructed or installed on the servient estate for the enjoyment of a servitude without objection from the servient owner, the parties have given a practical construction to the instrument or agreement that created the servitude. Even if the instrument specifies a different location, the location is fixed by the placement of the improvements unless the language or circumstances lead to the conclusion that the initial location is temporary.

Illustration:

1. O, the owner of Blackacre, granted an easement over the northerly five feet of Blackacre to Power Company for installation and maintenance of an electric transmission line to provide electrical service to Blackacre and an adjacent property. Power Company installed the transmission line over the southerly five feet of Blackacre without objection from O. The location of the easement is established over the southerly five feet of Blackacre.

d. Dimensions of a servitude, subsection (2). Under the rule stated in this subsection, the dimensions of an easement or other servitude are those reasonably necessary for the enjoyment of the servitude. However, this is a default rule that yields to a contrary intent of the parties. Specification of the width or other dimensions in the instrument creating the servitude is ordinarily construed to place an outside limit on the dimensions, but, under appropriate circumstances, might be interpreted to establish the initial dimensions only. If the parties intend that the servitude be capable of adapting to changing uses and technologies under the principles stated in § 4.10, they may also intend that the dimensions change over time to provide the space reasonably necessary for enjoyment of the servitude. By contrast, if the specified dimensions are construed as establishing the maximum size, the dimensions cannot be enlarged by the servitude owner unilaterally, even though they turn out to be inadequate for the purpose intended. If the servitude owner uses an area larger than that granted, however, additional rights may be obtained by prescription under the rules stated in §§ 2.16 and 2.17.

If the dimensions are not specified, the owner of the servitude may use so much of the servient estate as reasonably necessary to carry out the intended purpose. The dimensions of the servitude may change over time as reasonably needed to accommodate changing needs of the servitude owner and changes in technology, limited by the proviso, however, that changes that would unreasonably increase the burden on the servient estate are not permitted. See Comment f to § 4.10 for a discussion of changes in use that may be permitted.

e. Prescriptive easements. Easements acquired by prescription are generally less capable of expansion to meet changing needs and technologies than express or implied easements. However, they are not immutably fixed by the dimensions of the property used during the prescriptive period. Courts generally permit changes necessary to maintain the utility of the easement, if the change does not significantly increase the burden on the servient estate. Changes in height and depth are more readily permitted than changes in width, because generally less burdensome to the servient estate. Changes in width may be permitted, however, if necessary for safety and if the burden on the servient estate is not thereby unreasonably increased. The dimensions of prescriptive easements for roads, particularly public roads, may extend beyond the traveled way to include ditches, shoulders, and passing areas reasonably necessary to use of the road. The underlying rationale is that the owner of the servient estate should have anticipated that allowing use as a public roadway would result in establishment of rights to create the normal incidents of a roadway in addition to rights to continue use of the traveled way.

Illustrations:

2. O, the owner of Blackacre, acquired a prescriptive way across Whiteacre for access to a public road by use during a period of time when the speed limit on the public road was 35 m.p.h. The road has recently been improved and the speed limit raised to 55 m.p.h. Gaining access to and from the old way has become dangerous because it is too narrow at the point of intersection to allow sufficient view of the traffic or sufficient space for acceleration. Because the change is necessary for safety, O may expand the size of the easement to flare the entrance to the public road if the change will not substantially increase the burden on the servient estate. 3. O, the owner of Blackacre, acquired a prescriptive easement by use of a one-lane country road across Whiteacre for the prescriptive period. O now plans to subdivide Blackacre and wants to widen the road to two lanes with shoulders and drainage ditches on either side. Because these changes would probably increase the burden on the servient estate substantially, it would be reasonable to conclude that O is not entitled to expand the size of the easement. Even if safety

required expansion of the roadway, the proposed expansion would not be within the scope of the easement because the increase in width and traffic would unreasonably increase the burden on the servient estate.

f. Servient owner’s right to change location or dimensions of an easement, subsection (3). The rule stated in this section grants the servient owner the right to change the location or dimensions of an easement, at the servient owner’s expense, if the changes do not significantly lessen the utility of the easement, increase the burdens on the holder of the easement benefit, or frustrate the purpose for which the easement was created. This rule is limited in its application to easements as defined in § 1.2, which include affirmative rights to enter and use land possessed by another, but do not include negative use rights (negative easements or restrictive covenants). This rule applies unless expressly negated by the easement instrument. If the purchaser of an easement wishes to retain control over any change in location, the instrument should be drafted to accomplish that result.

This rule is designed to permit development of the servient estate to the extent it can be accomplished without unduly interfering with the legitimate interests of the easement holder. It complements the rule that the easement holder may increase use of the easement to permit normal development of the dominant estate, if the increase does not unduly burden the servient estate. See § 4.9. This rule is not reciprocal. It permits unilateral relocation only by the owner of the servient estate; it does not entitle the owner of the easement to relocate the easement. The reasons for the rule are that it will increase overall utility because it will increase the value of the servient estate without diminishing the value of the dominant estate and it will encourage the use of easements and lower their price by decreasing the risk the easements will unduly restrict future development of the servient estate. In addition, permitting the servient owner to change the location under the enumerated circumstances provides a fair trade-off for the vulnerability of the servient estate to increased use of the easement to accommodate changes in technology and development of the dominant estate.

This subsection adopts the civil-law rule that is in effect in Louisiana and a few other states. It rejects the rule espoused by the weight of authority in the United States--that the servient owner may not unilaterally relocate an easement. That rule resulted from applying the rule that the easement owner (the owner of the dominant estate) cannot unilaterally change the location of an easement to cases involving attempts by the servient owner to change the location. The reasons traditionally given for denying the easement owner the right to make unilateral changes in location are that treating the location as variable would depreciate the value of the servient estate, discourage its improvement, and incite litigation. Although only one of these reasons--that recognizing the right to relocate would incite litigation--applies to recognizing the servient owner’s right to relocate, many courts applied the rule to deny the servient owner the right to relocate. That they did so without appreciating the differences between the two situations can be seen from the cases reciting the same three reasons as the basis for the rule.

In one recent case a court did address the reasons why the rule denying a right to relocate should be applied to a servient owner. It concluded that allowing the servient owner to relocate would render the easement owner vulnerable to harassment by the servient owner, confer a windfall on the servient owner (whose purchase price reflected the existence of the easement), and interfere with the settled expectations of the easement owner. Although exposure of the easement owner to harassment or frustration of expectations are valid concerns, the safeguards contained in the rule stated in subsection (3) will protect the easement owner’s legitimate interests. As stated, the rule permits the servient owner to relocate only if the change does not significantly lessen the utility of the easement, increase the burdens on the easement owner, or frustrate the purpose for which the easement was created. That recognizing a right to relocate a servitude might confer a windfall on the servient owner is not a sufficient reason to reject the rule adopted in subsection (3). The primary purpose of the rule is to increase the value of the servient estate by limiting the easement’s potential to prevent development even when a relocated easement would equally well serve the interests of the easement holder. With the safeguards provided, this rule will increase the value of the servient estate without any significant decrease in the value of the dominant estate.

Illustrations:

4. An old roadway giving access to Whiteacre meanders through Blackacre, passing within 10 feet of the house located on Blackacre, before reaching a public road. An easement for use of the “existing roadway for a private way” was granted to the owner of Whiteacre by a 1910 deed. O, the owner of Blackacre, wants to replace the existing road with a new, straight road along the western boundary of Blackacre to reduce the noise and danger of traffic so close to the house and to increase the usability of the remainder of Blackacre. The new road would provide shorter, more direct access to Whiteacre and would enter Whiteacre at a point that could easily be connected to the existing road before reaching the house and garage on Whiteacre. Under the rule stated in this section, O is entitled to relocate the easement on Blackacre so long as O bears all the expenses, including the expense of relocating the portion of the road on Whiteacre to connect with the new entry point. 5. O, the owner of Blackacre, wants to relocate a roadway across Blackacre that gives access to Whiteacre from a public road. There is an express easement appurtenant to Whiteacre for use of the roadway. The new location is longer than the old and passes through swampy ground that is subject to flooding during the rainy season. Because the new location would lessen the utility of the easement to Whiteacre and increase the burdens on the dominant owner for maintenance and repair, O is not

entitled to relocate the roadway without the consent of the owner of Whiteacre.

REPORTER’S NOTE

See Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land § 7.02, Location and Dimensions (1988). Application, Comment a. The intent of the parties controls when ascertained. Bachman v. Hecht, 659 F.Supp. 308 (D.V.I.1986) (easement granted to subdivision purchasers to use beaches designated on the plan as plots no. 103, 127, and 186 implies that easement covered entire plots, and was not limited to beach areas of the particular plots). Location of easements, subsection (1), Comment b. The rule stated in this section is widely accepted: Carroll Elec. Co-op. Corp. v. Benson, 312 Ark. 183, 848 S.W.2d 413 (1993) (owner of servient estate has right in first instance to delimit easement; location must be convenient and accessible and reasonable to both dominant and servient estates considering condition of the place and purposes for which it was granted); Bradley v. Arkansas La. Gas Co., 280 Ark. 492, 659 S.W.2d 180 (1983) (owner of servient estate has right to locate easement, but on failure to do so, holder of dominant estate has the right, and location must be reasonable in either case); Arkansas Valley Elec. Co-op. Corp. v. Brinks, 240 Ark. 381, 400 S.W.2d 278 (1966). Ballard v. Titus, 157 Cal. 673, 110 P. 118 (1910). Florida Power Corp. v. Hicks, 156 So.2d 408 (Fla.Dist.Ct.App.1963) (servient owner having failed to designate location of easement, easement owner had right to select location; location must be reasonable as to both estates and not interfere unreasonably with enjoyment of servient estate). Bethel v. Van Stone, 120 Idaho 522, 817 P.2d 188 (Ct.App.1991) (servient owner has the right in first instance to locate the road to minimize the impact and prevent unreasonable interference with servient estate so long as the location is convenient and suitable way; if grantor fails to exercise the right, grantee may select the way; if parties cannot agree on reasonable location, court will select one). Daniel v. Clarkson, 338 S.W.2d 691 (Ky.1960). Cheever v. Graves, 32 Mass.App.Ct. 601, 592 N.E.2d 758 (1992) (servient owner to select reasonable and safe location for 10-foot right of way granted without specifying location). Bode v. Bode, 494 N.W.2d 301 (Minn.Ct.App.1992) (where holder of easement by necessity had used several routes and had refused several offers from servient owner to locate easement, servient owner retained right to specify location; route that allows servient owner to make best use of servient estate, that minimizes physical contact between parties, and is not inconvenient for dominant estate is reasonable selection). Broadhead v. Terpening, 611 So.2d 949 (Miss.1992) (easement by necessity should be located to be least onerous to owner of servient estate while at same time being a reasonable convenience to owner of dominant estate; chancellor’s rejection of established road as unnecessarily interfering with business located on servient estate and selecting different location after inspection of land not manifestly in error). Graves v. Gerber, 208 Neb. 209, 302 N.W.2d 717 (1981); Hengen v. Hengen, 211 Neb. 276, 318 N.W.2d 269 (1982). Mosher v. Hart, 157 A.D.2d 931, 550 N.Y.S.2d 187 (1990) (lower court’s designation of 25-foot right of way across path that interfered with farming during growing season erroneous even though shorter than other route; servient owner has right to designate route so long as reasonable and convenient; reasonable width held to be 20 feet). Abdalla v. State Highway Comm’n, 261 N.C. 114, 134 S.E.2d 81 (1964) (with respect to abutting owner’s easement of access to public highway, highway commission is in effect the servient owner and has right to locate access route with due regard for the rights of the easement owner). Smo v. Black, 93 Or.App. 234, 761 P.2d 1339 (1988) (implied easement for access to bridge over which express easement was granted located by court on shortest practical route to minimize burden on servient estate). Flaherty v. DeHaven, 302 Pa.Super. 412, 448 A.2d 1108 (1982) (situs of unspecified right of way determined by dominant owner’s use and servient owner’s acquiescence). McConnell v. Golden, 104 R.I. 657, 247 A.2d 909 (1968). McCammon v. Meredith, 830 S.W.2d 577 (Tenn.Ct.App.1991) (if servient owner does not locate easement, dominant owner may do so, having due regard to convenience of servient owner). Samuelson v. Alvarado, 847 S.W.2d 319 (Tex.Ct.App.1993); Patch v. Baird, 140 Vt. 60, 435 A.2d 690 (1981). Selection of the easement location may be accomplished through use, oral agreement, or a writing. Smith v. King, 27 Wash.App. 869, 620 P.2d 542 (1980) (quitclaim deed fixing location of easement pursuant to right reserved in conveyance creating easement effective even though not delivered or recorded; subsequent holder of dominant estate with notice could not change location). If the instrument grants the easement holder the right to locate the servitude, the holder may have the duty to notify the servient owner of the boundaries prior to construction or within a reasonable time after completion of construction. In McArthur v. East Tenn. Natural Gas Co., 813 S.W.2d 417 (Tenn. 1991), the utility company, the dominant owner, was expressly granted the right to locate the 50-foot-wide right of way for an interstate pipeline. In a later dispute over the location of the boundaries, the court held that the utility company had failed to overcome the presumption that the boundaries

are equidistant from the center of the pipeline as constructed. The court also established a new requirement that to overcome the presumption, the utility company must record written notice of the servitude’s location prior to, or within a reasonable time after, completion of pipeline construction. Public policy requires that pipeline locations and boundaries be made known as soon as possible to promote public safety by maintaining the integrity of the pipeline, and to avoid depreciating the value of the servient estate and discouraging its improvement. A few courts place the right to locate the easement with the grantee, perhaps following the rule that a deed will be construed in favor of the grantee. Hatfield v. Arkansas W. Gas Co., 5 Ark.App. 26, 632 S.W.2d 238 (1982) (if grantor fails to limit location of easement, grantee may select location that is reasonable and takes into account the interest and convenience of both parties; 15-foot right of way is reasonable for gas pipeline). Practical location of easements, Comment c. Bosley v. Cabot Oil & Gas Corp., 624 F.Supp. 1174 (S.D.W.Va.1986) (practical use of easement fixes location of easement granted without specification of location). Youngstown Steel Products. Co. v. City of Los Angeles, 38 Cal.2d 407, 240 P.2d 977 (1952) (where a right of way has been used at a particular location with acquiescence by the servient owner, the parties have, in effect, placed their own practical construction upon the grant, and the easement will be regarded as fixed at that place); Kytasty v. Godwin, 102 Cal.App.3d 762, 162 Cal.Rptr. 556 (1980) (extent of easement by implied grant is inferred from all circumstances of case including existing and reasonably expected uses); Horowitz v. Noble, 79 Cal.App.3d 120, 144 Cal.Rptr. 710 (1978) (extent of use of implied easement not necessarily limited to prior use made of the property by grantor; trial court may measure extent by future utilization and development of dominant tenement that might reasonably have been expected by the parties). Gendron v. Central Me. Power Co., 379 A.2d 1002 (Me. 1977) (unspecified width of power-line right of way established at 37.5 feet on either side of center line of poles by clearing of trees and overhanging branches since 1927). Amabile v. Winkles, 276 Md. 234, 347 A.2d 212 (1975) (where intent of original parties to create easement is clear but exact location of easement is not, location may be fixed by acquiescence of servient estate holders in actual use of easement by dominant estate). Platt v. Ingham County Rd. Comm’n, 40 Mich.App. 438, 198 N.W.2d 893 (1972) (when easement for public highway is acquired, statutory presumption arises that right of way is 4 rods in width; if presumption is rebutted, width of the easement is limited to area actually appropriated and used for road purposes when right of way was established). Edward Runge Land Co. v. Busch, 594 S.W.2d 647 (Mo.App.1980) (if an easement in land is created in general terms but without giving a definite location and description, a selection may be inferred within boundaries of land over which right of way is granted by proof of use of a particular course or way on part of grantee or owner of dominant estate along with the acquiescence of grantor or owner of servient estate). Graves v. Gerber, 208 Neb. 209, 302 N.W.2d 717 (1981) (where easement is granted without fixing location, location may be fixed by express agreement between parties or by implied agreement arising out of use of particular way). Williams v. Skinner, 93 N.C.App. 665, 379 S.E.2d 59 (1989), cert. denied, 384 S.E.2d 532 (N.C.1989) (latent ambiguity in deed describing location of easement cured by subsequent location and use of road). Umberger v. State ex rel. Dept. of Game, Fish and Parks, 248 N.W.2d 395 (S.D.1976) (easement acquired by grant becomes fixed in location either by specific designation from mutual agreement or by usage and acquiescence). Pioneer Natural Gas Co. v. Russell, 453 S.W.2d 882 (Tex.Ct.Civ.App. 1970) (installation of 8-inch pipeline in 1928 fixed size of easement granting right “to maintain parallel pipe lines” and installation of parallel 10-inch pipeline in 1968 constituted trespass where easement did not expressly authorize laying of additional lines in the future). Waskey v. Lewis, 224 Va. 206, 294 S.E.2d 879 (1982) (where right of way passed over farm road which existed across land of common grantor before 1919 partition deed, width of 1919 farm road determined width of right of way).

Maps, Plats, and Photographs May Establish Location

The location, width, and dimensions of servitudes may be established by reference to maps, plats, aerial photographs, or similar sources: Posey v. Cumens, 564 So.2d 864 (Ala.1990) (location of easement determined with reference to permanent survey markers corroborated by neighbors’ testimony, where state statute required location of boundary by reference to permanent landmark). Klar Crest Realty, Inc. v. Rajon Realty Corp., 190 Conn. 163, 459 A.2d 1021 (1983) (location and width of easement determined by reference to photographs and aerial map). Peckheiser v. Tarone, 186 Conn. 53, 438 A.2d 1192 (1982) (easement not limited to paved portion of road, but extends across marshy area to the river as shown on subdivision map; purpose is to allow subdivision lot owners access to the river). Watson v. Scott, 349 So.2d 982 (La.App.1977) (easement location and width determined from aerial photographs and government quadrangle map). Area Real Estate Assocs., Inc. v. City of Raymore, 699 S.W.2d 461 (Mo.App.1985) (location and extent of broad general easement for city sewer line determined by actual use and by reference to city-supplied map showing single sewer line in specific location). Bouchard v. Abbott, 110 A.D.2d 985, 488 N.Y.S.2d 275 (1985) (appeals court accepted plaintiff’s description of an easement

for beach access despite trial court’s rejection based on defendant’s sketch not drawn to scale; higher court noted sketch was not a survey map but it roughly corroborated plaintiff’s position); O’Hara v. Wallace, 52 A.D.2d 622, 382 N.Y.S.2d 350 (1976) (plaintiffs, in suit for prescriptive easement, found entitled to use public right of way over a 25-foot-wide roadway shown on a filed map, rather than 4-foot-wide pedestrian path sued for). Hann v. Saylor, 386 Pa.Super. 248, 562 A.2d 891 (1989) (width of road easement established by reference to engineer’s drawing); Scoppa v. Myers, 341 Pa.Super. 61, 491 A.2d 148 (1985) (width of easement by implication determined from subdivision plan). Fairbrother v. Adams, 135 Vt. 428, 378 A.2d 102 (1977) (hunting and fishing profit located by reference to deed to which the grant referred). Rouse v. Munroe, 658 P.2d 74 (Wyo.1983) (ambiguous grant of easement for reservoir interpreted in light of stock-watering reservoir application and map that were used in negotiating easement and incorporated in easement agreement). Dimensions of servitudes, subsection (2), Comment d. The width, length, and dimensions are those reasonably necessary for the intended purpose: Columbia Gas Transmission Corp. v. Burke, 768 F.Supp. 1167 (N.D.W.Va.1990) (50-foot width established on basis of evidence that 25 feet of unrestricted access on each side of pipeline was necessary for safe operation and maintenance). Snider v. Alabama Power Co., 346 So.2d 946 (Ala.1977) (width of easement actually described incorrectly in deed is determined as that which would be reasonable, convenient, and accessible). Wessells v. State Department of Highways, 562 P.2d 1042 (Alaska 1977). Reeder & GMC v. Arkansas Louisiana Gas Co., 644 S.W.2d 291, 6 Ark.App. 385 (1982) (reasonable scope of the easement determined by intent of the parties and present use). Rogers v. Pedro, 642 P.2d 549, 3 Haw.App. 136 (1982). Continental Illinois National Bank & Trust Co. v. Village of Mundelein, 85 Ill.App.3d 700, 407 N.E.2d 1052 (1980) (expansion of sewer-line easement from 27-inch to 48-inch reasonably necessary for improvement); Vallas v. Johnson, 72 Ill.App.3d 281, 390 N.E.2d 939 (1979). Rees v. Panhandle Eastern Pipe Line Co., 176 Ind.App. 597, 377 N.E.2d 640 (1978) (expansion of easement reasonably necessary to prevent certain harm in case of malfunctioning pipeline). Di Pasco v. Prosser, 364 Mo. 1193, 274 S.W.2d 279 (Mo. 1954) (evidence that public alleys in vicinity were 15 feet wide used to establish reasonable width for easement created by implication and estoppel); State ex rel. Hillhouse v. Hunter Raffety Elevator, Inc., 636 S.W.2d 400 (Mo.App.1982) (rights of grantor significant factor in determining that reasonable location of easement was north of prior location). Barton’s Motel, Inc. v. Saymore Trophy Co., 113 N.H. 333, 306 A.2d 774 (1973) (reasonably convenient and suitable way across servient land presumed where language of deed is ambiguous). Sanders v. Lutz, 109 N.M. 193, 784 P.2d 12 (1989) (roadway easement unsuitable for its purpose because of square corners was increased by adding rounded corners). Town of Ulster v. Massa, 535 N.Y.S.2d 460, 144 A.D.2d 726 (1988) (where express grant conveying an easement failed to specify extent of easement, court construed extent to be that which is necessary to fulfill the purpose of easement); Le Sawyer v. Squillace, 29 Misc.2d 24, 220 N.Y.S.2d 944 (Sup.Ct.1961) (width of easement for access to alley established at 12 feet based on practical construction of parties, amount necessary for enjoyment, and location, size, and situation of lands affected). Giles v. Parker, 304 S.C. 69, 403 S.E.2d 130 (S.C.1991) (where plat map did not show width of road, determining width is matter of construction to determine intent of the parties; strong consideration must be given to what was reasonable, convenient, and necessary to accomplish the purpose of person conveying the property; evidence supported finding that original road was 20 feet wide). Pena v. Salinas, 734 S.W.2d 400 (Tex.App.1987). Easter v. Mullins, 169 W.Va. 648, 289 S.E.2d 462 (1982) (lot owner had no right to use entire extent of right of way privately dedicated by reservation on subdivision plat where evidence showed that a 12-foot-wide right of way had been in use for 30 years and was sufficient to provide for complete enjoyment of the owner’s lot).

Effect of Specifying Location or Dimensions

When the location or dimensions of an easement are specified in the creating instrument, the specificity of the location or dimensions may indicate the parties’ intent that no deviation be permitted, even if the location or dimensions eventually prove excessive or inadequate for the intended purpose. Squaw Peak Community Covenant Church v. Anozira Dev., Inc., 149 Ariz. 409, 719 P.2d 295 (1986) (grant of easement 40 feet wide lying 20 feet on either side of described centerline creates easement 40 feet in width and is not cut down by subsequent construction and use of 28-foot-wide paved roadway; easement holder entitled to prevent construction of curbs or other permanent obstructions that would prevent free passage over any part of 40-foot strip). Pickens v. Kemper, 847 P.2d 648 (Colo.Ct.App.1993) (servient owner not entitled to construct fence along length of eastern line of actual roadway where easement is described by metes and bounds and as having a specified width, and roadway does

not occupy entire easement area). Mackin v. Mackin, 186 Conn. 185, 439 A.2d 1086 (1982) (holders of 3 expressly created easements giving access to public highway are entitled to use all 3). Diefenderfer v. Forest Park Springs, 599 So.2d 1309 (Fla.Dist.Ct.App.1992) (servient owner not entitled to build wall jogging into 50-foot right-of-way easement up to 20 feet in places even though drive currently in use occupied only 12 feet of right of way and wall would not interfere; plat maps and other evidence established that parties intended to burden entire 50 feet with road easement, rather than to create roadway easement to be located somewhere within the described 50 feet). Aladdin Petroleum Corp. v. Gold Crown Properties, Inc., 221 Kan. 579, 561 P.2d 818 (1977) (servient owner ordered to remove carports from 60-foot-wide easement; owner of easement of specified width and definite boundaries is entitled to undisturbed use of entire area, not just to reasonable width; trial court’s determination of area reasonably necessary for purpose is inconsistent with specific grant). Onorati v. O’Connell, 3 Mass.App.Ct. 739, 326 N.E.2d 367 (1975) (trial court erred in restricting width of right of way to less than the 20 feet granted in unambiguous deed that established right of way, set its dimensions, and located it by reference to land-court plan). Osburn v. Supreme Express and Transfer Co., 590 S.W.2d 360 (Mo.App.1979) (road considered a private way found to have been properly installed as a public way and, although only a 20-foot-wide strip was in use, the remainder of the 30-foot-wide easement was not abandoned; failure to use a county road does not constitute abandonment). Thomas v. Weller, 204 Neb. 298, 281 N.W.2d 790 (1979) (where dimensions of easement to hunt ducks on portion of river bottom were specified in grant as those determined by survey describing servient estate by metes and bounds, court could not alter dimensions of easement to whatever was reasonably necessary and convenient to accomplish purpose of easement). Mylott v. Sisca, 564 N.Y.S.2d 523 (App.Div.1990) (where easement for exclusive parking rights for two cars included metes-and-bounds description, easement covered entire area; deck built by servient owner into the space encroached on easement even though remaining space was arguably sufficient to park 2 cars). Lindhorst v. Wright, 616 P.2d 450 (Okla.Ct.App.1980) (perpetual right of ingress and egress “on and across the easterly 40 feet” of described land is not ambiguous; 40-foot-wide easement is meant, rather than easement to be located within the 40-foot strip; and planting of trees and crops and stacking of brush in strip are inconsistent with easement even though they do not interfere with current 20-foot-wide traveled way). Xanadu Horizontal Prop. Regime v. Ocean Walk Horizontal Prop. Regime, 306 S.C. 170, 410 S.E.2d 580 (Ct.App.1991) (easement of ingress and egress located on property “shown and described on” attached plat was specifically described and could not be narrowed to restrict vehicular use to less than full amount of land described). Travis v. Madden, 493 N.W.2d 717 (S.D.1992) (easement “over the North ... 58 feet of lot 19 ... for ingress and egress ... over and upon the roadway presently existing and situated on the North 58 feet of said Lot 19” is limited to roadway existing at time of grant; the North 58 feet merely describes the parcel on which the easement is located, not the easement itself). Phillips Pipe Line Co. v. Clear Creek Properties, Inc., 553 S.W.2d 389 (Tex.Ct.Civ.App.1977) (where pipeline easement specified a precisely described 20-foot strip, easement holder had no right to use area outside of described strip during construction of additional line even though easement area was too narrow for the purpose). Semler v. Hartley, 184 W.Va. 24, 399 S.E.2d 54 (1990) (where grant of easement was unambiguous regarding location or dimensions of the easement, trial court erred in admitting extrinsic evidence according to which it reduced the width of the roadway). When it can be ascertained, the intent of the parties determines the dimensions and locations of servitudes: Pacific Gas and Elec. Co. v. Hacienda Mobile Home Park., 45 Cal.App.3d 519, 119 Cal.Rptr. 559 (1975) (instrument conveying utility easement stating that neither grantor nor his successors could build any structure within 15 feet of any pole or line means that mobile homes cannot be installed within 15 feet of either side of the line traced by the poles, not that buildings can be placed outside the circumference of a 15-foot circle around each pole and more than 15 feet vertically below the powerline). Toms v. Settipane, 30 Conn.Sup. 374, 317 A.2d 467 (1973) (easement for access to beach over 18-inch-wide pathway was intended to give access to the entire beach, not just to an 18-inch swath from foot of path to the ocean). First Nat’l Bank of Boston v. Konner, 373 Mass. 463, 367 N.E.2d 1174 (1977) (where profit to take sand from adjoining property for sanding of cranberry bog was not limited geographically, the court declined to set limits on exercise of profit, aside from affirming servient owner’s right to make any use of the burdened property not inconsistent with the profit). Sievers v. Zenoff, 94 Nev. 53, 573 P.2d 1190 (1978) (trial court was justified in concluding that nonexclusive easements granted for ingress and egress “over and across” a certain subdivision lot without specifying exact width of the easement were intended to include all of the specified lot based on evidence of representations made to dominant tenants at time of purchase and their understanding of easement’s extent at time of conveyance). Clark v. Neergaard, 121 N.H. 632, 434 A.2d 599 (1981) (length of easement for right of way determined by parol evidence as to actual termination of county road used as reference in 1932 grant; actual end of road as it existed in 1932 determined length of easement, rather than official termination shown on county map). Holbrook v. Robert Dow, Inc., 116 N.H. 701, 366 A.2d 476 (1976) (275-foot-long easement to begin at “northerly sideline” of public road adjoining servient estate held to begin at edge of highway easement rather than at edge of paved portion of

road). Hensley v. Ramsey, 283 N.C. 714, 199 S.E.2d 1 (1973) (claimant of easement entitled to new trial where trial court wrongly viewed the easement as an undefined strip passing over a third party’s land, rather than the specific right of way described in the deed creating the easement). Rikkers v. Ryan, 76 Wis.2d 185, 251 N.W.2d 25 (1977) (where warranty deed unambiguously stated that the easement extended 400 feet south from the northern line of lot 1, which is bordered by Illinois Avenue, the court held that the easement began at the lot line on the edge of the street and not at the centerline of the street despite the fact that the owner of lot 1 had legal title to the center of the street). Tatum v. R & R Cable, Inc., 30 Wash.App. 580, 636 P.2d 508 (Wash.Ct.App.1981) (deviation from width and location of utility easement is trespass, and easement holder is liable for treble damages for removal of trees and shrubs outside of easement).

Water Boundaries

Where an easement is located on property bounded by water, the easement may be subject to relocation as the land-water boundary moves. Bess v. County of Humboldt, 5 Cal.Rptr.2d 399 (Cal.Ct.App.1992) (public rights in road were not extinguished by changes in river’s course; law of accretion applies to easements; easement giving access to river moves with river). Matcha v. Mattox, 711 S.W.2d 95 (Tex.Ct.App.1986), cert. denied, 481 U.S. 1024 (1987) (landowner not entitled to rebuild in same location after hurricane moved line of vegetation; public’s right in beach acquired by custom follows beach as it moves landward and seaward with the natural movements of the line of mean low tide and the natural line of vegetation). Prescriptive easements, Comment e. Restatement of Property § 477 provided that “the extent of an easement created by prescription is fixed by the use through which it was created.” Comment b pointed out that “no use can be justified under a prescriptive easement unless it can fairly be regarded as within the range of the privileges asserted by the adverse user and acquiesced in by the owner of the servient tenement. Yet no use can ever be exactly duplicated. If any practically useful easement is ever to arise by prescription, the use permitted under it must vary in some degree from the use by which it was created. Hence, the use under which a prescriptive interest arises determines the general outlines rather than the minute details of the interest.” Fogerty v. State, 187 Cal.App.3d 224, 231 Cal.Rptr. 810 (1986), cert. denied, 484 U.S. 821 (1987) (state acquired rights to high-water level of Lake Tahoe by prescription; level acquired is that established by highest actual level of water during 5-year period, not level shown on maps). Thompson v. Dypvik, 220 Cal.Rptr. 46 (1985) (extent of easement rights acquired by prescription not affected by color of title). In re Onarga, Douglas & Danforth Drainage Dist., 179 Ill.App.3d 493, 128 Ill.Dec. 206, 534 N.E.2d 226 (1989) (dimensions of prescriptive easement obtained by maintenance of 10-inch drain tile cannot be expanded to accommodate 24-inch drain tile). Ellison v. Fellows, 121 N.H. 978, 437 A.2d 278 (1981) (servient owner’s protest prevented relocation of prescriptive way by use of new route and bridge when original way continued to be useable). Danial v. Town of Delhi, 586 N.Y.S.2d 359 (App.Div.1992) (public road acquired by public use for 10 years is limited to actual extent of use despite statutory requirement that streets be 3 rods wide). Petersen v. Port of Seattle, 94 Wash.2d 479, 618 P.2d 67 (1980) (change from use of airspace by prop jets to jets and increasingly noisy jets over claimed prescriptive period would not have established prescriptive right to more than least intensive use during the period). Krencicki v. Petersen, 22 Ariz.App. 1, 522 P.2d 762 (1974). Applegate v. Ota, 146 Cal.App.3d 702, 194 Cal.Rptr. 331 (1983) (width of prescriptive easement established by actual use beyond borders of paved road). Board of County Comm’rs of the County of Delta v. Ogburn, 38 Colo.App. 212, 554 P.2d 700 (1976). Kuras v. Kope, 205 Conn. 332, 533 A.2d 1202 (1987) (width of easement obtained by prescription could be expanded to include grading “slopes” on the area along the right of way). Aztec Limited, Inc. v. Creekside Investment Co., 100 Idaho 566, 602 P.2d 64 (1979) (holder of prescriptive easement acquired by use of 20-foot way not entitled to widen road). D.L. & L. Corp. v. Leonard, 435 A.2d 743 (Me.1981). Mahoney v. Devonshire, Inc., 86 Md.App. 624, 587 A.2d 1146 (1991) (holder of prescriptive easement allowed to use and maintain road to full 16-foot width established during the prescriptive period, including paving the original dirt road). Stucchi v. Colonna, 9 Mass.App.Ct. 851, 400 N.E.2d 1272 (1980). Huter v. Birk, 510 S.W.2d 177 (Mo.1974) (location of road sufficiently definite where determined by reference to clearly defined existing road whose location has been unchanged over a long period of time); Parker v. Rogers, 698 S.W.2d 617 (Mo.Ct.App.1985) (prescriptive easement was properly found to be 20 feet wide where road during prescriptive period was originally 20 feet but had subsequently been narrowed).

Smith v. Bixby, 196 Neb. 235, 242 N.W.2d 115 (1976) (where public has acquired right to highway by prescription, width of easement not limited to actual beaten path but extends to width reasonably necessary for public travel); Fischer v. Grinsbergs, 198 Neb. 329, 252 N.W.2d 619 (1977) (width of prescriptive easement for private driveway limited to that necessary to provide access). Maloney v. Wreyford, 111 N.M. 221, 804 P.2d 412 (N.M.Ct.App.1990) (width of prescriptive easement restricted to 16-foot width of gate placed across easement by user, rather than 50-foot width indicated by deed discrepancy). Reiss v. Maynard, 170 A.D.2d 992, 566 N.Y.S.2d 808 (A.D. 4 Dept. 1991) (prescriptive easement properly limited to 12 feet where 50-foot right of way was admitted on stipulation but evidence supported actual use of 12-foot strip). Keidel v. Rask, 290 N.W.2d 255 (N.D.1980) (where easement acquired by prescription for public highway, width determined by that necessary for maintenance of the highway, including ditches, shoulders, and slopes, as well as actual width of travelled surface). Arrien v. Levanger, 263 Or. 363, 502 P.2d 573 (1972) (where property owner builds a dam which causes variable, periodic inundation of neighbor’s land over a 22-year period, the dam owner acquires prescriptive easement to maximum acreage inundated). Hash v. Sofinowski, 337 Pa.Super. 451, 487 A.2d 32 (1985) (appeals court held that width of easement obtained by prescription was limited to width in use during prescriptive period, overruling trial-court judgment that use of easement for modern farm equipment was consistent with use established during prescriptive period and that, therefore, right of way might be extended to 18 feet in width). Allen v. Keeling, 613 S.W.2d 253 (1981) (width of public road established by prescription not limited to beaten path used, but includes sufficient land, where reasonably available, for drainage ditches, repairs, and convenience of the travelling public). Clemson University v. First Provident Corp., 260 S.C. 640, 197 S.E.2d 914 (1973) (holder of prescriptive easement for drainage not entitled to enlarge ditches to accommodate runoff from subdivision of dominant estate; there is no right to enlarge or vary prescriptive servitude beyond conditions of exercise during prescriptive period). Willis v. Magette, 491 S.E.2d 735 (Va.1997) (width of prescriptive easement is limited to area used during prescriptive period; trial court erred in establishing 30-foot easement where evidence showed use of no more than 20-foot width during prescriptive period). Servient owner’s right to change location or dimensions, subsection (3), Comment f. The rule stated in this section adopts the civil-law rule on relocation of servitudes, which is in effect in Louisiana. Article 748 of the Louisiana Civil Code Ann. (West 1980) provides: “The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude. If the original location has become more burdensome for the owner of the servient estate, or if it prevents him from making useful improvements on his estate, he may provide another equally convenient location for the exercise of the servitude which the owner of the dominant estate is bound to accept. All expenses of relocation are borne by the owner of the servient estate.” The same right is extended to the owner of land burdened by an easement of necessity, denominated a servitude of passage, by Article 695, which provides: “The owner of the servient estate has the right to demand relocation of the servitude to a more convenient place at his own expense, provided that it affords the same facility to the owner of the enclosed estate.” Ogden v. Bankston, 398 So.2d 1037 (La.1981) (servient owner entitled to relocation of easement by necessity where original location prevented most advantageous subdivision of servient estate and would reduce value of 10 lots in proposed subdivision; relocation of easement to residential street within subdivision for a short distance will provide dominant owner with equally convenient access road). Fuselier v. Hebert, 526 So.2d 1169 (La.Ct.App.1988) (servient owner failed to carry burden of proof under Art. 695 to show that judicially established easement of necessity is inconvenient to him or that proposed alternative provides an equal facility to dominant owner where alternative is 2 feet narrower and follows a different route). The New York Court of Appeal adopted and applied the rule of subsection (3) in Lewis v. Young, 705 N.E.2d 649 (N.Y.1998) (in the absence of demonstrated intent to provide otherwise, servient owner, consonant with the beneficial use and development of its property, can move right of way for ingress and egress so long as servient owner bears the expense and so long as the change does not frustrate the parties’ intent or object in creating the right of way, does not increase the burden on the easement holder, and does not significantly lessen the utility of the right of way). A few earlier cases in common-law states either support the rule adopted in subsection (3) or reach results that might be expected under the rule: Mackin v. Mackin, 186 Conn. 185, 439 A.2d 1086 (1982) (easement holder entitled to nominal damages only for relocation of way where resulting inconvenience was minimal). Enos v. Casey Mountain, Inc., 532 So.2d 703 (Fla.Dist.Ct.App.1988) (servient owners entitled to have easement location changed to avoid having to destroy valuable improvements made during period when dominant owner used area outside of platted, but unopened way). But see White Sands, Inc. v. Sea Club V Condominium Assoc., Inc., 581 So.2d 589 (Fla.Dist.Ct.App.1990) (rule of Enos is limited to easements implied from conveyance in reference to a plat). Stewart v. Compton, 549 S.W.2d 832 (Ky.1977) (owner of servient estate may change location of free passway easement so long as beginning and end are not changed and no material inconvenience to rights of easement holders results).

Lowell v. Piper, 31 Mass.App.Ct. 225, 575 N.E.2d 1159 (1991) (servient estate should not be burdened further than necessary to give full effect to easement; public policy requires that owner of real estate be allowed to make all improvements that can be made consistently with just rights of others; servient owner may relocate electric lines subject to easement underground where change benefits easement holder; servient owner may be able to relocate penstock to accommodate development of servient estate if relocation will not disrupt or interfere with easement holder’s right to substantially unrestricted flow of water necessary to cultivation of cranberry bog; language granting easements to use penstock and power lines “at their present locations” does not require easement holder’s consent to change location because parties knew that servient estate would be developed at some future time). Texon, Inc. v. Holyoke Machine Co., 8 Mass.App.Ct. 363, 394 N.E.2d 976 (1979) (because servient owner’s proposed demolition of building would materially interfere with dominant owner’s use of easement, servient owner must bear expense of relocating steam and electrical conduits so that dominant owner’s benefits from easement will be unaltered by the change). Quinta Doroteia, Ltd. v. Wagner, 141 A.D.2d 711, 529 N.Y.S.2d 581 (1988) (servient owner entitled to construct new road for easement where agreement did not specify location of “permanent” easement, language suggested that contemplated route would not necessarily duplicate existing right of way, and there was no evidence that proposed route would adversely affect dominant owner). Van Laak v. Malone, 92 A.D.2d 964, 460 N.Y.S.2d 654 (1983) (servient owner entitled to relocate easement without giving reason so long as new location provides reasonably necessary and convenient access under language granting easement “over a route now used ... or one hereafter designated” and new route may be on land or right of way acquired subsequent to grant of easement). Vossen v. Forrester, 963 P.2d 157 (Or.1998) (injunction requiring removal of 3-foot encroachment on 16-foot easement denied on balance of equity grounds on condition that servient owner provide alternate route for easement). Although not expressly recognizing the right of the servient owner to change the location, some cases express the limits on that right as recognized by the rule stated in subsection (3): Horton v. Kroner, 575 So.2d 1026 (Ala.1990) (easement holder not entitled to damages for servient owner’s refusal to permit burial of telephone cable where existing service was provided by single pole and servient owner objected to possible erosion). Nopolous v. McCullough, 95 Ill.App.3d 852, 420 N.E.2d 734 (1981) (easement must be returned to original path to avoid deprivation of access where relocation goes through more swampy ground and includes locked gate). O’Brien v. Richter, 455 S.W.2d 473 (Mo.1970) (when servient owner unilaterally relocated easement of unspecified location or dimensions created in 1867, dominant owner was entitled to width reasonably necessary, which in view of subdivision regulations would be 50 feet, even though old road had been only 20 feet wide). Palmer v. Soloe, 601 A.2d 1250 (Pa.Super.Ct.1992) (servient owner cannot unilaterally relocate easement to route that provides a worse view of traffic and is more difficult to negotiate because of a sharper turn); Flaherty v. DeHaven, 302 Pa.Super. 412, 448 A.2d 1108 (1982) (servient owner not entitled to close off most convenient looped roadway where parties intended that easement be located on looped road and steepness of terrain caused vehicles to bottom out on alternative access road). Marlow v. Marlow, 325 S.E.2d 703 (S.C.App.1984) (servient owner acted reasonably in locating easement road to allow maximum use of servient estate where new location is 400 feet shorter than old and is not flood-prone; 20-foot width is reasonable despite county’s requirement of 40-foot width for county maintenance because deed specifies that road is not for public use). Cozby v. Armstrong, 205 S.W.2d 403 (Tex.Ct.Civ.App.1947) (where small change in road removed it from servient owner’s front yard to fence line, and jury found that new location was as suitable and convenient as old, and old location had deprived servient owner of practical and reasonable use of her land, dominant owner was not entitled to reopening of old road; case distinguished from those involved with relocation to complete new right of way with changed termini which cannot be done without consent of dominant owner). Coleman Co., Inc. v. Southwest Field Irrigation Co., 584 P.2d 883 (Utah 1978) (although easement owner had statutory duty to maintain the ditch, it would not be required to bear additional maintenance costs caused by servient owner’s unilateral relocation of ditch). Conrad v. Strickler, 215 Va. 454, 211 S.E.2d 248 (1975) (servient owner may reroute as long as no additional burden is created for dominant owner). When an easement provides for relocation without specifying how the costs of relocation are to be allocated, costs will be equitably distributed among the parties based on the projected use of the relocated easement and the benefit of the relocation. Drolsum v. Luzuriaga, 93 Md.App. 1, 611 A.2d 116 (Ct.Spec.App.1992). Statutes permitting replatting of subdivisions may include the right to change the location of streets shown on the plat in which lot owners hold implied easements. See, e.g. Clagg v. Baycliffs Corp., 695 N.E.2d 728 (Ohio 1998), cert. denied, 525 U.S. 1177, 119 S.Ct. 1112 (1999) (road in which lot owners had implied easements could be relocated by servient owner under replat statute without consent of those who were not injuriously affected). The weight of authority in the United States supports the rule that the servient-estate owner is not entitled to change the location of the servitude:

Edgell v. Divver, 402 A.2d 395 (Del.Ch.1979) (servient owner not entitled to relocate easement even though land had been rezoned commercial and existing location had become inconvenient to servient estate; once an easement has been located, it cannot be relocated without consent of the dominant estate, regardless of the inconvenience to the servient estate). White Sands, Inc. v. Sea Club V Condominium Assoc., Inc., 581 So.2d 589 (Fla.Dist.Ct.App.1990) (judgment extinguishing expressly granted easement and creating alternative easement reversed; location of easement created by grant cannot be changed once it has been fixed); Fields v. Nichols, 482 So.2d 410 (Fla.Dist.Ct.App.1985) (easements, once granted and fixed, are not subject to the whims of either dominant or servient owners and can only be changed by consent of the parties); Florida Power Corp. v. Hicks, 156 So.2d 408 (Fla.Dist.Ct.App.1963) (change in use of servient estate from residential to commercial does not entitle servient owner to relocate easement even though easement substantially interferes with proposed use; easements once granted are not subject to whims of either party; reason for the rule is that treating location as variable would incite litigation, depreciate the value of the land, and discourage improvement of servient estate; law of change applies equally to both dominant and servient owners). Northpark Assoc. No. 2, Ltd. v. Homart Dev. Co., 262 Ga. 138, 414 S.E.2d 214 (1992) (developer-purchaser of two subdivision lots had implied easement rights in roads shown on plat that were not terminated by county’s abandonment and could not be relocated by redeveloper of balance of subdivision as commercial property even though it was in public interest to relocate the roads, and access to the two lots was not impeded); Thomason v. Kern & Co., Inc., 259 Ga. 119, 376 S.E.2d 872 (1989) (owner of servient estate not entitled to relocate prescriptive easement for driveway to accommodate commercial development; court reasoned that because prescriptive user cannot acquire easement if path has been shifted during prescriptive period, once acquired, servient owner may not alter path). LeClerq v. Zaia, 28 Ill.App.3d 738, 328 N.E.2d 910 (1975) (parol agreement to permit servient owner to relocate easement to facilitate construction of house did not authorize second relocation; punitive damages properly awarded where servient owner relocated road in undesirable location primarily on dominant estate). The only case that addresses the question whether the rule that the dominant owner cannot unilaterally change the location of an easement is appropriately applied to the servient owner is Davis v. Bruk, 411 A.2d 660 (Me.1980) (once easement has been located, servient owner cannot unilaterally change location regardless of damage to the servient estate and lack of cost to dominant estate; rationale for rule is that unilateral relocation right would introduce uncertainty into land ownership, proliferate litigation, leave dominant owner vulnerable to harassment by servient owner’s attempts to relocate to suit own convenience, confer a windfall on servient owner who purchased at price reflecting existence of easement, and interfere with settled expectations of dominant owner). Bode v. Bode, 494 N.W.2d 301 (Minn.Ct.App.1992) (once located by agreement or acquiescence in use, easement by necessity’s location cannot be changed except by agreement). Sussex Rural Elec. Coop. v. Township of Wantage, 217 N.J.Super. 481, 526 A.2d 259 (1987) (servient owner could not unilaterally change location of utility company’s general servitude to place poles and lines once fixed by installation even though easement did not specify location). Dowd v. Ahr, 577 N.Y.S.2d 198 (N.Y.1991) (location of dock could not be changed without consent of dominant owner once location became fixed and certain). Hollosy v. Gershkowitz, 88 Ohio App. 198, 98 N.E.2d 314 (1950) (servient owner not entitled to relocate 3-foot walkway to equally convenient location regardless of loss to servient estate; rationale for rule prohibiting unilateral change of easement location is that treating location as variable would incite litigation, depreciate the value of land, and discourage its improvement). Samuelson v. Alvarado, 847 S.W.2d 319 (Tex.Ct.App.1993) (once established, location cannot be changed without consent of both even though use of the easement where located becomes detrimental to use of servient estate; servient owner could not unilaterally change easement by necessity to location less convenient to dominant owner). Umberger v. State ex rel. Dep’t of Game, Fish & Parks, 248 N.W.2d 395 (1976) (route fixed by usage and acquiescence of servient owner could not be changed unilaterally by servient owner where easement provided that any changes in the actual route must be mutually agreed upon; however, court indicates that general rule is that location of easement may not be substantially changed by one party without consent of the other). Moore v. Center, 124 Vt. 277, 204 A.2d 164 (1964) (mutual agreement required to modify easement). The rule in this section does not give the dominant-estate owner, or servitude owner, the right to relocate the servitude unless contemplated by the parties. This is the generally accepted rule. Bradley v. Arkansas Louisiana Gas Co., 280 Ark. 492, 659 S.W.2d 180 (1983) (holder of pipeline easement located by construction of line in 1960 not entitled to relocate line 100 feet south of existing right of way 20 years later). Villager Condominium Ass’n, Inc. v. Idaho Power Corp., 121 Idaho 986, 829 P.2d 1335 (1992) (relocation of transformers to concrete pads above ground was unauthorized expansion of easements delineated on plat maps for underground cable and transformers). Jones v. Edwards, 219 Or. 429, 347 P.2d 846 (1959) (dominant owner not entitled to use new road constructed by servient owner except where new road was superimposed on old where easement was granted over road as “now established and traveled”). Shrewsbury v. Humphrey, 183 W.Va. 291, 395 S.E.2d 535 (1990) (dominant owner of prescriptive easement has no right to

remove fence maintained by servient owner during prescriptive period to create new access to roadway subject to prescriptive easement). The servitude owner is entitled to change location when the change is within the scope of the contemplated servitude or made necessary by action of the servient owner. In addition, the holder of an easement may be entitled to make minor changes, particularly shifting from underground to above-ground or vice versa, where necessary to carry out the purpose of the servitude: Wingo v. Georgia Power Co., 236 Ga. 646, 225 S.E.2d 37 (1976) (holder of easement abutting public road may change access route to go directly from public road rather than through other part of servient estate). Rudd v. Faircrest 14 Maintenance Corp., 362 So.2d 285 (Fla.Dist.Ct.App.1978) (holder of easement to operate, maintain, repair, and alter fresh-water sprinkler system entitled to convert from city water to canal water and install pumps above ground). Dixie Elec. Membership Corp. v. Jones, 360 So.2d 216 (La.Ct.App.1978) (power company entitled to relocate power line to go around instead of over house built by servient owner after installation of power line; setting additional pole for dog-leg was reasonable). Ericsson v. Braukman, 111 Or.App. 57, 824 P.2d 1174 (1992) (grading, ditching, and graveling unused road at considerable expense by dominant owner with knowledge of servient owner indicated implicit agreement to relocate easement). City Public Serv. Board v. Karp, 585 S.W.2d 838 (Tex.Ct.App.1979) (holder of transformer easement entitled to replace underground transformer with above-ground transformer to resolve maintenance problems due to seepage of water and mud). As a practical matter, the servient owner can relocate an easement by necessity by providing permanent access to the landlocked parcel in another location. The easement by necessity terminates when other permanent access becomes available. Hereford v. Gingo-Morgan Park, 551 So.2d 918 (Ala.1989). Criteria for location and relocation of statutory ways of necessity may be set by statute. DeWitt v. Stevens, 598 So.2d 849 (Ala.1992) (claimant of statutory way by necessity not entitled to route over existing drive where drive passed within 50 feet of servient owner’s personal residence and an alternative route would be shorter, although more expensive because claimant would have to construct new drive). Mitcham v. Birdsong, 573 So.2d 1294 (La.Ct.App.1991) (courts first locate right of way on estate offering shortest route then consider least injurious place within that estate unless exceptional conditions require location on estate with longer route); Anderton v. Akin, 493 So.2d 795 (La.Ct.App.1986), writ denied, 497 So.2d 1014 (La.1986) (passage over lots and street in residential subdivision for logging trucks denied due to probable damage even though shortest route); Morgan v. Culpepper, 324 So.2d 598 (La.Ct.App.1975) (passage granted over estate with longer route because shorter route was impassable due to flooding during part of year); Rieger v. Norwood, 401 So.2d 1272 (La.Ct.App.1981) (shortest distance measured from boundary of enclosed estate, not from house to be served by drive; easement narrowed to 15 feet from 30 feet by trial court to minimize inconvenience to servient estate); Young v. Manuel, 385 So.2d 544 (La.Ct.App.1980) (easement of necessity created by voluntary alienation that encloses estate under Civ. Code Art. 694 is located on parcel that formerly provided access rather than over parcel providing shortest route).

STATUTORY NOTE

(All statutory citations are to WESTLAW, as of April 1, 1999)

Alabama: Ala. Code § 18-3-1 (1990 Replacement Vol.) (owner of tract not contiguous to any public road may acquire convenient right of way not exceeding 30 feet in width) Pennsylvania: Pa. Stat. Ann. tit. 53, § 67307 (public road acquired by 21 years’ public use and repair and maintenance by township funds is 33 feet wide) Louisiana: La. Civ. Code Ann. art. 692 (passage generally shall be along shortest route from enclosed estate to public road at location least injurious to intervening lands)





§ 4.9 Servient Owner’s Right To Use Estate Burdened By A Servitude

Except as limited by the terms of the servitude determined under § 4.1, the 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.

Cross-References:

Section 4.8, Location, Relocation, and Dimensions of Servitudes; § 4.10, Use Rights Conferred by a Servitude; § 4.13, Duties of Repair and Maintenance.

Comment:

a. Application. The rules stated in this section apply only as an aid to determining the intent or expectations of the parties under the rules stated in § 4.1, and to supply terms omitted by the parties in creating a servitude. Subject to the limits stated in Chapter 3, Validity of Servitude Arrangements, the parties are free to determine the extent of the use rights retained by the owner of the servient estate. If their intent is ascertained, it should be given effect. In the absence of detailed arrangements between them, it is assumed that the owner of the servitude and the holder of the servient estate are intended to exercise their respective rights and privileges in a spirit of mutual accommodation.

b. Application of public policy favoring productive land use. In resolving conflicts among the parties to servitudes, the public policy favoring socially productive use of land generally leads to striking a balance that maximizes the aggregate utility of the servitude and the servient estate. Socially productive uses of land include maintaining stable neighborhoods, conserving agricultural lands and open space, and preservation of historic sites, as well as development for residential, commercial, recreational, and industrial uses. Aggregate utility is generally produced by interpreting an easement to strike a balance that maximizes its utility in serving the purpose intended while minimizing the impact on the servient estate. In the case of conservation, open space, and historic preservation servitudes, however, seeking to minimize the impact on the servient estate is not appropriate. Interpreting the servitude to maximize the effectiveness of the servitude in accomplishing its purpose may produce the greatest aggregate utility.

c. Use by holder of servient estate. The person who holds the land burdened by a servitude is entitled to make all uses of the land that are not prohibited by the servitude and that do not interfere unreasonably with the uses authorized by the easement or profit. An easement is a nonpossessory interest that carves out specific uses for the servitude beneficiary. All residual use rights remain in the possessory estate--the servient estate. The term “holder” is used interchangeably with “owner” to indicate that any possessor of an estate burdened by a servitude, whether the “owner” of a fee simple or a lesser estate, is entitled to use the servient estate in the manner specified. “Holder” is also used interchangeably with owner of the servitude in this section because any possessor of the dominant estate is entitled to use an appurtenant easement. Rules on allocating servitude benefits and burdens among successors are set forth in Chapter 5.

Because conflicts that call for application of the rule stated in this section generally arise with respect to easements, most of the discussion and Illustrations that follow involve easements. In an appropriate case, however, the rule may be applied to other types of servitudes. The owner of the servient estate is not entitled to interfere unreasonably with legitimate enjoyment of the servitude. (See §§ 4.10-4.12 for the extent of the use rights conferred by an easement or profit.) Actions that make it more difficult to use an easement, that interfere with the ability to maintain and repair improvements built for its enjoyment, or that increase the risks attendant on exercise of rights created by the easement are prohibited by the rule stated in this section, unless justified by needs of the servient estate. In determining whether the holder of the servient estate has unreasonably interfered with exercise of an easement, the interests of the parties must be balanced to strike a reasonable

accommodation that maximizes overall utility to the extent consistent with effectuating the purpose of the easement or profit, and subject to any different conclusion based on the intent or expectations of the parties determined under § 4.1.

Illustrations:

1. O, the owner of Blackacre, which is burdened by an easement for a high-voltage electric transmission line, regularly pastures livestock in an area that includes the easement area. In the absence of facts indicating that the livestock interfere with the easement owner’s ability to maintain the transmission line, O is entitled to use the easement area for pasture.

2. O, the owner of Blackacre, which is burdened with a driveway easement in favor of Whiteacre, regularly throws trash and nails on the drive and yells obscenities at the residents of Whiteacre as they use the drive. O is not entitled to use the servient estate in this manner because his actions unreasonably interfere with use of the easement.

3. O, the owner of Blackacre, which is subject to an easement for a high-pressure natural gas pipeline, poured a concrete slab and erected a hog barn across the easement. In the absence of other facts and circumstances, O is not entitled to use Blackacre in this manner because the slab and barn will unreasonably interfere with the easement by increasing the difficulty of maintaining and repairing the pipeline.

4. After repeated problems with vandalism, O, the owner of Blackacre, installed a locked gate at the entrance to the drive crossing Blackacre that leads from the public highway to Whiteacre. The drive is maintained pursuant to an easement appurtenant to Whiteacre. O furnished A, the owner of Whiteacre, with a key for the gate. Whiteacre is undeveloped property that A uses infrequently for recreational purposes. In the absence of other facts or circumstances, O is entitled to maintain the locked gate because the gate is needed for the security of Blackacre, and the lessened convenience to Whiteacre is not unreasonable.

Questions sometimes arise as to the ability of the servient owner to locate improvements within the boundaries of an easement when the improvement does not interfere with current uses of the easement. Whether the improvement is an unreasonable interference with the servitude depends on the character of the improvement and the likelihood that it will make future development of the easement difficult. If the improvement is temporary and easily removed, it is generally not unreasonable. The more expensive the improvement or the more difficult its removal is likely to be, the more likely is the conclusion that the improvement is an unreasonable interference with the easement or profit.

The question whether the servient owner’s use is an unreasonable interference with an easement or profit may be linked to the question whether the servitude beneficiary will lose rights authorized by the easement or profit if the servient-estate owner continues the use for the prescriptive period. Although the argument will often be circular--the beneficiary will lose rights by prescription if the use was an unreasonable interference by the servient owner, and will not lose rights if the use was not an unreasonable interference--any substantial risk that the servient owner’s use will give rise to a later claim for termination by prescription is a sufficient basis for concluding that the use is an unreasonable interference.

Illustrations:

5. O, the owner of Blackacre, conveyed to A, the owner of Whiteacre, a 60-foot-wide easement for a road to provide access to Whiteacre. There is currently a narrow dirt lane within the easement area. A has no current plans to improve the road, but plans to do so when Whiteacre is eventually subdivided. O is using the area up to the lane for pasture and has erected a temporary fence along the lane to keep the livestock from straying. In the absence of other facts or circumstances, O is entitled to maintain the fence within the easement area because the fence will be relatively easy to remove when A wants to widen the road. 6. Same facts as Illustration 5, except that O has constructed a concrete-block storage facility that extends 15 feet into the easement area. In the absence of other facts or circumstances, it would be reasonable to conclude that O is not entitled to maintain the structure in the easement area because it may be difficult or expensive to secure its removal when the owner of Whiteacre is ready to develop the easement, and it may give rise to a claim of prescriptive right on the part of the owner of Blackacre.

d. Use of improvements constructed for enjoyment of easement or profit. When improvements are constructed by the owner of an easement or profit for the enjoyment of the servitude, a question may arise whether the holder of the servient estate is entitled to use the improvements. The type of easement and the use made of the easement area before and after the creation of the servitude will often indicate whether the servient owner’s use of the improvements is reasonably within the uses contemplated by the parties. Roads and driveways are often intended to be shared by dominant and servient

owners; power poles are seldom intended to be shared; water and sewer lines fall somewhere in between. Whether an easement is for local utility service or long-distance transmission is another factor that may affect the question whether the servient owner is entitled to use the facility. If the easement holder simply improves or adds on to existing facilities, the holder of the servient estate is generally entitled to use the improved facilities, unless, of course, the intent or expectations of the parties, determined under § 4.1, are to the contrary.

Illustrations:

7. Pursuant to an easement, Power Company installs poles and electric-transmission lines across Blackacre. O, the owner of Blackacre, later grants permission to Cable TV Company to use the poles for installation of television cable. In the absence of other facts or circumstances, it would be reasonable to conclude that Cable TV Company did not acquire the right to use the poles because O has no right to use the poles. 8. O, the owner of Blackacre, granted an easement to A, the owner of Whiteacre, to construct a road across Blackacre for access to Whiteacre. A substantially improved an existing dirt lane on Whiteacre. In the absence of other facts or circumstances, it would be reasonable to conclude that O is entitled to use the improved lane so long as O’s use does not unreasonably interfere with A’s use.

e. Creation of additional servitudes. Under the rule stated in this section, the holder of the servient estate may create additional servitudes in land burdened by a servitude if the additional servitudes do not unreasonably interfere with the enjoyment of the prior servitude holders.

Illustrations:

9. Power Company has installed power poles and lines within a 10-foot-wide easement area it holds across the rear of Blackacre. O, the owner of Blackacre, subsequently granted an easement to Cable TV Company to install an underground conduit and television cable in the same 10-foot area. If installation and maintenance of the underground cable do not unreasonably interfere with the enjoyment of Power Company’s easement, O was entitled to create the additional easement. 10. O, the developer of a 10-lot subdivision near a lake, retained title to Blackacre, a lot fronting on the lake which included a beach. O granted an appurtenant easement for use of Blackacre for recreational purposes in the deeds conveying each of the 10 lots in the subdivision. Twenty years later, a successor in title to Blackacre granted an easement to the owner of Whiteacre, property outside the subdivision, for recreational purposes. Whiteacre is used as a campground and draws hundreds of visitors during the summer. In the absence of other facts or circumstances, the owner of Blackacre was not entitled to create the additional easement rights because the likely increased use will unreasonably interfere with enjoyment of the previously created easements.

REPORTER’S NOTE

The rule stated in this section is the same as that stated in Restatement of Property § 486, and is generally accepted. Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land § 7.06, Utilization (1988); G. Korngold, Private Land Use Arrangements, Chapter 4, Scope and Protection of Easements (1990). Application, Comment a. When the intent or reasonable expectations of the parties are ascertainable, the servitude should be interpreted to give effect to their intent or expectations: Alabama Power Co. v. Martin, 341 So.2d 695 (Ala.1977) (servient owner did not unreasonably interfere with easement for flooding land above 475-foot contour by filling lower land because easement holder was estopped by representations of its agent that easement permitted fill). When the parties have not spelled out the details of their arrangements, it is assumed that they intended a mutual accommodation of their interests. An interpretation that balances their interests is proper: United States v. O’Block, 788 F.2d 1433 (10th Cir.1986) (gateless fence between easement and dominant estate is unreasonable interference; whether fence with gates would be an unreasonable interference with use of an easement is a question of fact to be determined by weighing the merits of the fences and gates against their interference; rights of dominant and servient tenants must be balanced and accommodation of interests should occur). Wilson v. Brown, 897 S.W.2d 546 (Ark.1995) (in determining relations between dominant and servient owners, governing principle is that neither should unreasonably interfere with the rights of the other; servient owner may not erect barrier that unreasonably interferes with right of passage by easement owner). Bean v. Johnson, 279 Ark. 111, 649 S.W.2d 171 (1983) (as extent of easement becomes more difficult to discover, relations between dominant and servient holders become increasingly subject to principle that neither shall unreasonably interfere with the use of the other). Herndon v. McKinley, 586 S.W.2d 294 (Ky.Ct.App.1979) (rights of dominant and servient owners determined by doctrine of reasonableness and balancing of rights). Use by holder of servient estate, Comment c. The rule that the holder of the servient estate has a duty not to interfere

unreasonably with the use and enjoyment of the easement or profit is universally accepted. Litigation arises over the question whether a particular use is or is not an unreasonable interference. Mid-America Pipeline Co. v. Lario Enterprises, Inc., 942 F.2d 1519 (10th Cir.1991) (asphalt and increased cover over pipeline for racetrack materially interfered with normal operation and maintenance of pipeline by hampering aerial surveillance and by making excavation more difficult, time-consuming, and expensive). Columbia Gas Transmission Corp. v. Burke, 768 F.Supp. 1167 (N.D.W.Va.1990) (location of structure foundation within 25 feet of gas pipeline is unreasonable interference). Elk Mountain Safari, Inc. v. United States Dep’t of Interior and Bureau of Land Management, 645 F.Supp. 151 (D.Wyo.1986) (opening fire lookout station access road to public use would materially increase burden on servient estate). Alcazar Temple v. Courtesy Ford Sales, Inc., 442 So.2d 40 (Ala.1983) (construction of walls along length of strip subject to easement for ingress and egress “at such location or locations” as grantor may desire would unreasonably interfere with rights of dominant owner). Birmingham Trust Nat’l Bank v. Midfield Park, Inc., 295 Ala. 136, 325 So.2d 133 (1976) (construction of curb unreasonably interfered with use of easement contrary to terms of agreement providing specifically that areas subject to access easement should not be fenced or otherwise used to interfere with free flow of traffic in the shopping center). Craft v. Arkansas Louisiana Gas Co., 8 Ark.App. 169, 649 S.W.2d 409 (1983) (construction of building over active underground gas line is unreasonable interference with easement because itprevents access for maintenance and creates risk of explosion; easement holder is entitled to recover costs of relocating line). Bean v. Johnson, 279 Ark. 111, 649 S.W.2d 171 (1983) (chancellor unduly restricted use of easement by requiring social invitees of easement holders to report to servient owner and furnish written proof that they were social invitees when owners of dominant estate were not present; what constitutes unreasonable interference depends on consideration of relative advantage to servient owner and disadvantage to easement owner; disadvantage of requiring written permission outweighs advantage to servient owner in stopping and checking unaccompanied social invitees). Bijou Irr. Dist. v. Empire Club, 804 P.2d 175 (Colo.1991), cert. denied, 500 U.S. 918 (1991) (servient owners of land subject to easement for irrigation purposes not entitled to use water for recreational purposes because recreational use interferes with ability of irrigation company to maintain dams and change water levels as needed for irrigation purposes). Boydstun Beach Ass’n v. Allen, 111 Idaho 370, 723 P.2d 914 (Ct.App.1986) (servient owner ordered to remove obstructions to parking; whether retaining wall can remain depends on threat of erosion to servient estate and degree of interference with privileges granted by easement; absent language to the contrary, the uses made by servient and dominant owners may be adjusted consistent with the normal development of their respective lands). Mid-America Pipeline Co. v. Wietharn, 787 P.2d 716 (Kan.1990) (construction of concrete slab and buildings for hog operation interfered with normal operation and maintenance of high-pressure pipelines in violation of easement). Marsh v. Pullen, 50 Or.App. 405, 623 P.2d 1078 (1981) (10-inch speed bumps unreasonably interfere with access easement but 7-inch bumps do not; servient owner will not be ordered to remove cedar hedge that limits visibility because not located on easement area; parked cars that block access or interfere with passage are unreasonable interference). Healy v. Roberts, 109 Ill.App.3d 577, 440 N.E.2d 647 (1982) (servient owner properly enjoined to remove obstructions and restore alley to good usable condition after placing railroad ties across alley and removing gravel therefrom). Andrews v. North Coast Dev., Inc., 270 Or. 24, 526 P.2d 1009 (1974) (easements for unimpeded views obstructed by construction of new condominium building). Illustration 2 is based on Rupert v. Gunter, 31 Wash.App. 27, 640 P.2d 36 (1982) (owners of servient estate enjoined from harassing holder of easement by yelling, making threats, using profane language, standing in middle of lane, placing objects in lane, and digging holes in the surface, and enjoined to remove heavy gate placed at midpoint between county road and dominant estate just past their house). Whether gates unreasonably interfere with use of an easement is frequently litigated. The outcome depends entirely on the circumstances of the case: Hall v. Clayton, 270 Ark. 626, 606 S.W.2d 102 (Ct.App.1980) (locked gate would unreasonably interfere with rights of prescriptive easement holder, but unlocked gate would be permitted to prevent vandalism). Jordan v. Guinn, 253 Ark. 315, 485 S.W.2d 715 (1972) (whether gate constitutes an unreasonable interference with a right of way is a question of fact; gate must be for purpose appropriate to use of servient estate, not to annoy easement holder). Gamburg v. Cooper, 131 Ariz. 545, 642 P.2d 890 (Ct.App.1982) (servient owner may install and maintain gate on right of way if necessary for use of servient estate and not unreasonable interference with right of passage; unreasonable interference is question of fact). Tanaka v. Sheehan, 589 A.2d 391 (D.C.1991) (servient owner not necessarily prevented from installing gates and fences on easement; trial court must balance interests of both parties). Kanizer v. White Excavating, 444 N.E.2d 353 (Ind.Ct.App.1983) (servient owner may maintain gate across way unless open way is expressly granted, but may not lock the gate or interfere with easement holder’s reasonable use of way; existence of gate at time of grant supports application of general rule to the case). Schroeder v. Urban, 13 Kan.App.2d 164, 766 P.2d 188 (1988) (temporary fence with gate for period of 10 to 30 days while servient owner pastured land not an unreasonable interference with easement).

Herndon v. McKinley, 586 S.W.2d 294 (Ky.Ct.App.1979) (third gate in passway unreasonably interfered with easement holder’s use where servient owner did not prove that third gate was essential to use and enjoyment of servient estate). Hudson v. McAvoy, 380 So.2d 1248 (La.Ct.App.1980) (installation of 23-foot gate on 30-foot right of way interfered with servitude holder’s right of free and unencumbered use by narrowing the way and diminishing the use by the servitude holder, suppliers, and customers). Parker v. T & C Dev. Corp., 281 Md. 704, 381 A.2d 679 (1978) (enclosure of beach and park areas by fences and gates unlocked only during daylight hours from early spring to fall--the times when commercial concession operations were open to the public--unreasonably interfered with lot owners’ easement rights to reasonable use of park land and beach front; servient owner has the right to protect its buildings, but alternative less restrictive means could be found). Reddick v. Williams, 260 Md. 678, 273 A.2d 153 (1971) (finding that parties did not contemplate installation of permanent gates in right of way not clearly erroneous where right of way was fenced on both sides without any gate at time easement was created; cattle guards would serve the same purpose as gates with less inconvenience to dominant estate). Webb v. Finley, 806 S.W.2d 501 (Mo.Ct.App.1991) (servient owner entitled to install gates and cattle guards to keep cattle from straying; inconvenience to owner of dominant estate who uses way for access to a residence is outweighed by hardship to servient owner occasioned by need to build a fence that would cut the parcel in half and force the installation of alternate water supplies if gates are not permitted). Ray County v. Heath, 636 S.W.2d 413 (Mo.Ct.App.1982) (trustees of subdivision who held title to streets and other common facilities with express power to install gates were entitled to close 3 of the 6 gates giving entrance to the subdivision to control vandalism). Teal v. Lee, 506 S.W.2d 492 (Mo.Ct.App.1974) (to determine whether servient owner can fence and gate right-of-way easement, consider purpose of the easement, intention of the parties as gleaned from the circumstances surrounding the grant, nature and situation of the property, and manner in which the easement has been used). Strahan v. Bush, 237 Mont. 265, 773 P.2d 718 (Mont.1989) (trial court did not abuse discretion in enjoining servient owner from locking gate across access road even though gate was locked at time easement was created; servient owner leased property for cattle operation while holder of access easement lived on the property year-round and had a back problem that prevented her from opening gate; gate had been open for 4 years; servient owner could install cattle guards in lieu of locking gate). Huff v. McClannahan, 89 N.M. 762, 557 P.2d 1111 (1976) (trial court’s conclusion that servient owner’s installation of gates across the roadway unreasonably interfered with easement supported by substantial evidence; unreasonable interference is question of fact). Glennon v. Mayo, 174 A.D.2d 600, 571 N.Y.S.2d 307 (1991) (servient owner ordered to leave electronic gates open and to remove 1 of 3 speed bumps). Setzer v. Annas, 286 N.C. 534, 212 S.E.2d 154 (1975) (holder of easement does not have unqualified right to use the easement without obstruction; servient owner may maintain gates if they do not unreasonably interfere with use of the way). Ericsson v. Braukman, 111 Or.App. 57, 824 P.2d 1174 (1992) (servient owner entitled to install gate on easement across rural land used for agriculture and Christmas-tree farm to protect against increased vandalism, dumping, and theft resulting from easement holder’s improvement of road; servient owner entitled to lock gate from November 1 to December 25 to protect against increased risk of theft during harvest season despite easement holder’s claims that locked gate interfered with access for deliveries, social guests, and emergency equipment; locked gates are necessary for reasonable use of servient estate). Brown v. Gaskins, 284 S.C. 30, 324 S.E.2d 639 (Ct.App.1984) (injunction requiring easement holder to lock gate upheld because necessary to prevent vandalism to servient estate and did not unreasonably interfere with right of passage). Stout v. Christian, 593 S.W.2d 146 (Tex.Ct.App.1980) (servient owner entitled to maintain locked gates to protect cattle so long as easement holders were given keys; easement provided for live stock-proof gates at 2 locations and required they be closed when not in use; defendants had repeatedly cut locks and failed to close gates). Wykoff v. Barton, 646 P.2d 756 (Utah 1982) (servient owner held entitled to maintain fences and gates to keep livestock in; trial court’s finding that gates were not unreasonable restriction on easement holder’s rights to ingress and egress supported by the record, even though result is to prevent subdivision of dominant estate). McBride v. McBride, 581 P.2d 996 (Utah 1978) (whether locked gates unreasonably interfere with easement for access to agricultural lands is question of fact; trial court’s determination that deterrence to theft and vandalism was outweighed by inconvenience to easement holder not clearly erroneous). Rupert v. Gunter, 31 Wash.App. 27, 640 P.2d 36 (1982) (giving servient owners option to place a lightweight, easy-to-use, aluminum gate at entrance to lane on county road to control public use of lane not an abuse of discretion). Hoffman v. Smith, 172 W. Va. 698, 310 S.E.2d 216 (W.Va.1983) (grantor of easement over farm land retains the right to erect gates that do not unreasonably interfere with use of easement; express provision in easement grant that “where gates and bars are placed, they are to be maintained and kept closed” precludes easement holders from substituting cattle guards for gates). Bijou Irr. Dist. v. Empire Club, 804 P.2d 175 (Colo.1991), cert. denied, 500 U.S. 918 (1991) (servient owners of land subject to easement for irrigation purposes not entitled to use water for recreational purposes because recreational use interferes with ability of irrigation company to maintain dams and change water levels as needed for irrigation purposes).

Use of improvements constructed for enjoyment of easement or profit, Comment d. The servient owner is generally entitled to make use of the easement unless the easement was intended to be exclusive: Latham v. Garner, 105 Idaho 854, 673 P.2d 1048 (1983) (exclusive easement is unusual interest in land not generally favored by courts and generally will not be found without clear indication of intent; grant of easement “to have and to hold ... exclusively for their [Second Parties’] use, and unto their successors and assigns forever” did not unambiguously indicate intent that servient owner be precluded from using road constructed by easement holder). Orange County, Inc. v. Citgo Pipeline Co., 934 S.W.2d 472 (Tex.Ct.App.1996) (exclusive easement in gross is one that gives the owner the sole privilege of making the uses authorized by it; neither the owner of the servient estate nor any other person except the owner of the easement is entitled to make such a use; pipeline easement that allows construction of additional pipelines by easement owner on payment of additional compensation for each line is exclusive easement where grantor did not reserve right to use the easement area for pipeline purposes). Samuelson v. Alvarado, 847 S.W.2d 319 (Tex.Ct.App.1993) (trial court went too far in ordering easement holder to construct fence 12 feet out from property line along length of easement by necessity because net effect would be to create exclusive easement depriving servient owner of use of easement area). Creation of additional servitudes, Comment e. Bosley v. Cabot Oil & Gas Corp., 624 F.Supp. 1174 (S.D.W.Va.1986) (servient-estate owner retains right to grant further easements over same way if deed says nothing). The facts of Illustration 10 are drawn from Leabo v. Leninski, 182 Conn. 611, 438 A.2d 1153 (1981) (opening dry-sand area of small beach to the public unreasonably interfered with rights of holders of easements to use the beach for bathing purposes where use increased from owners of 6 lots and 4 cottages on servient estate to thousands, servient owner planned to provide parking for 2,000 bikes and 200 cars; trial court justified in concluding that servient owner’s conduct was in reckless disregard of easement holders’ rights).

STATUTORY NOTE


Louisiana: La. Civ. Code Ann. art. 748 (owner of servient estate may do nothing tending to diminish or make inconvenient the use of the servitude)





§ 4.10 Use Rights Conferred By A Servitude

Except as limited by the terms of the servitude determined under § 4.1, the holder of an easement or profit as defined in § 1.2 is entitled to use the servient estate in a manner that is reasonably necessary for the convenient enjoyment of the servitude. 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. Unless authorized by the terms of the servitude, the holder is not entitled to cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment.

Cross-References:

Section 4.8, Location, Relocation, and Dimensions of a Servitude; § 4.9, Servient Owner’s Right to Use Estate Burdened by a Servitude; § 4.11, Use of Appurtenant Easement or Profit to Serve Property Other Than the Dominant Estate; § 4.12, Rights of Holders of Separate Servitudes in Same Property; § 4.13, Duties of Repair and Maintenance.

Comment:

a. Application. The rules stated in this section apply only as an aid to determining the intent or expectations of the parties under the rules stated in § 4.1, and to supply terms omitted by the parties in creating a servitude. Subject to the limits stated in Chapter 3, Validity of Servitude Arrangements, the parties are free to determine the extent of the use rights conferred on the beneficiary of a servitude. If their intent is ascertained, it should be given effect. In the absence of detailed arrangements between them, it is assumed that the owner of the servitude and the holder of the servient estate are intended to exercise their respective rights and privileges in a spirit of mutual accommodation.

The rules in this section apply to both easements and profits. However, for ease of presentation, the discussion and Illustrations refer only to easements.

b. Application of public policy favoring productive land use. In resolving conflicts among the parties to servitudes, the public policy favoring socially productive use of land generally leads to striking a balance that maximizes the aggregate utility of the servitude beneficiary and the servient estate. Socially productive uses of land include maintaining stable neighborhoods, conserving agricultural lands and open space, and preservation of historic sites, as well as development for residential, commercial, recreational, and industrial uses. Aggregate utility is generally produced by interpreting an easement to strike a balance that maximizes its utility while minimizing the impact on the servient estate.

c. Servitude holder is entitled to make any use reasonably necessary for convenient enjoyment. This section states the general rule that the holder of an easement is authorized to make any use of the servient estate that is reasonably necessary for the convenient enjoyment of the easement. However, unless expressly authorized, the servitude holder is not entitled to cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment (see Comment g). This rule complements the rule stated in § 4.9 that the servient owner may not unreasonably interfere with uses authorized by the easement.

The uses that are reasonably necessary for enjoyment of an easement change over time as technology changes and as use of the dominant and servient estates changes. As change takes place, conflicts often arise between the servitude owner and the owner of the servient estate. Challenge to a change in use may be grounded in an objection that the new use does not fall within the purpose of the servitude, or that the change will result in unreasonable damage to or interference with enjoyment of the servient estate. These conflicts frequently present difficult factual issues as to how broadly or narrowly

the purpose should be defined, whether the proposed change is reasonably necessary, whether it is of the sort that should have been contemplated by the parties, how much damage or interference is likely to ensue, and whether it is reasonable. Resolution of the conflict often demands a detailed inquiry into the particular facts and circumstances of the case, and the issues as to intent, reasonable expectations, purpose, reasonableness of use, and extent of damage and interference are usually intertwined. The discussion and Illustrations offered here can only serve as guidelines to analysis of particular cases.

Under the rule stated in this section, the servitude holder is entitled to make any use of the servient estate that is reasonably necessary for the convenient enjoyment of the easement. Even when the easement is located in a specific portion of the servient estate, the servitude beneficiary has the right to use other parts of the servient estate when reasonably necessary for convenient use of the easement. Reasonably necessary uses always include the right to gain access to the easement area and to maintain and repair the easement. Frequently, reasonably necessary uses will also include making improvements or constructing improvements for use of the easement. If necessary, additional areas of the servient estate may be used during construction. The right to use additional areas of the servient estate is sometimes called a “secondary” easement. Conceptually, a secondary easement can be regarded either as an easement by necessity or as inherently included within the primary-use rights granted by the easement.

Illustrations:

1. There is an easement appurtenant to Whiteacre for ingress and egress over a private road crossing Blackacre. In the absence of other facts or circumstances, Able, the owner of Whiteacre, and Able’s family, tenants, and invitees, are entitled to use the road 24 hours a day by any form of transportation that does not inflict unreasonable damage or unreasonably interfere with the enjoyment of Blackacre.

2. O, the owner of Blackacre, granted an exclusive easement to the Rod and Gun Club for hunting and fishing purposes. In the absence of other facts or circumstances, the Rod and Gun Club is entitled to post signs on Blackacre prohibiting nonmembers from hunting or fishing.

3. Power Company acquired an express easement over the northerly 25 feet of Blackacre for above-ground electric-transmission lines. The only access to Blackacre is from a public road along the southerly boundary. In the absence of other facts or circumstances, Power Company is entitled to erect poles, to remove and trim trees as reasonably necessary for protection of the power lines, to make repairs, and to enter and use the rest of Blackacre to the extent reasonably necessary for those purposes, and for reasonable inspection and maintenance of the lines.

Whether a particular use falls within the purpose of the easement is discussed in Comment d. Rights to repair, maintain, and improve the servient estate are further discussed in Comment e. Rights to make changes in the use of the easement or the dominant estate are discussed in Comment f. The rule that the easement holder’s use rights do not include the right to cause unreasonable damage or interfere unreasonably with the enjoyment of the servient estate is discussed in Comment g.

d. Use within purpose of servitude. The first step in determining whether the holder of an easement is entitled to make a particular use challenged by the owner of the servient estate is to determine whether the use falls within the purposes for which the servitude was created. The process is described in Comment h to § 4.1. The determination is primarily one of fact, based on inferences that may be drawn from the language and circumstances, but the outcome in any particular case may be affected by the level of generality with which the purpose is defined. For example, the purpose of an easement for “ingress and egress” may be specifically defined as the entrance and exit of people, or people and vehicles, or more generally defined as access to the dominant estate. Using the more specific definition would justify the conclusion that the easement could not be used for utilities; using the more general definition would lead to the opposite result. The purpose of an easement for “railroad right of way” may be narrowly defined as transportation by railroad, or more generally defined as transportation or movement of people and goods. If the former is adopted, the right of way could only be used for rail transport; if the latter is adopted, it could be used for a hiking and bicycle trail.

The way in which a servitude was created may affect the level of specificity with which the purpose will be defined. The purpose of an easement created by use, whether adverse use under § 2.16 or prior use under § 2.12, is generally defined specifically so that only the use that created the easement and closely related ancillary uses are included within the purpose. The purpose of an easement created by express grant or necessity is often defined more generally. A more specific definition of the purpose is appropriate when the circumstances suggest that authorized uses should be limited to those made initially, which will often result in decreasing the value of the easement over time. A more general definition is appropriate when the circumstances suggest that the holder of the easement should be able to take advantage of future

opportunities, which will result in maintaining or increasing the value of the easement over time.

Illustrations:

4. O, the owner of Blackacre, granted an easement to Able, the owner of Whiteacre, for “ingress and egress” from Whiteacre to the public street abutting Blackacre. The deed did not specify whether utility lines could be placed in the easement. Unless the facts or circumstances suggest that the parties intended otherwise, it would be proper to define the purpose of the easement generally to include access for anything that could conveniently be transported through the easement corridor and that would normally be used in connection with property situated like Whiteacre, including utility services. 5. Same facts as Illustration 4, except that Able acquired the easement by adverse use, which included crossing Blackacre by motor vehicle and on foot, but did not include installation or use of utility lines. Because the easement was created by adverse use, it would be proper to define the purpose more specifically, to include only access by pedestrian and motor-vehicle traffic, or perhaps by any form of surface transportation normally used for property like Blackacre. 6. O, the owner of Blackacre and Whiteacre, conveyed Whiteacre to Able by a conveyance that landlocked Whiteacre, giving rise to an easement by necessity. In identifying the purpose of the easement, it would be proper to define necessity generally to include everything necessary for normal use of the dominant estate for the purposes for which it is suited, rather than specifically to include only access for people and goods by standard means of surface transport. Able would be entitled to place utility lines in the easement. 7. Before conveying Whiteacre to Able, O owned both Blackacre and Whiteacre. While O owned both parcels, O installed a sewer line across Blackacre to serve the residence on Whiteacre. On conveyance of Whiteacre to Able, an easement was created by implication from the prior use. In the absence of other facts or circumstances, it would be proper to define the purpose specifically, as being for a sewer line, rather than more generally, as ingress and egress. Able is not entitled to build a driveway along the route of the sewer line.

e. Maintenance, repair, and improvement of the servient estate. Unless the parties clearly intended to deny the easement owner the right to maintain or repair the easement, a servitude should be interpreted to include the right to keep the easement and any improvements used in connection with it in repair. This rule extends to easements created by adverse use, as well as to those created by other means. The rule promotes productive land use without imposing additional burdens on the servient estate.

Illustration:

8. O, the owner of Blackacre, holds a prescriptive easement for a driveway across Whiteacre to a public highway. A winter storm washes away a bridge and part of the drive. In the absence of other facts or circumstances, O is entitled to rebuild the bridge and repair the drive, even though no repairs were made during the prescriptive period. When reasonably necessary to the convenient enjoyment of an easement, the holder of the easement may make improvements and construct improvements on the servient estate for enjoyment of the easement. These rights are subject to any limits established by the terms of the servitude determined under § 4.1, and subject to the proviso that the holder of the servitude is not entitled to cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment. See Comment g. The manner of the servitude’s creation may be relevant in determining the extent of the right to make improvements. Easements created by adverse or prior use generally are more restrictive than others because the scope of the easement is based on the use that gave rise to its creation.

Illustrations:

9. Able, the owner of Whiteacre, holds an easement for access over the north 30 feet of Blackacre. No existing road is located on the north 30 feet. In the absence of other facts or circumstances, Able is entitled to construct a road and to remove trees within the easement area as reasonably necessary for that purpose. 10. Able, the owner of Whiteacre, holds an access easement over a private road crossing Blackacre. Able is entitled to grade and pave the road unless the facts or circumstances lead to the conclusion that paving would be contrary to the intent of the parties determined under § 4.1, or unless paving would unreasonably damage Blackacre or interfere unreasonably with use and enjoyment of Blackacre. f. Changes in manner, frequency, and intensity of use. Under the rule stated in this section, the manner, frequency, and intensity of use of the servient estate may change to take advantage of developments in technology and to accommodate normal development of the dominant estate, or of the enterprise benefited by the servitude. Changes in use of the dominant estate, or enterprise benefited by an easement in gross, are irrelevant unless they also bring a change in the manner, frequency, or intensity of use of the easement. The rule is subject to any contrary terms determined under § 4.1 and to the limitation that the servitude holder’s use may not cause unreasonable damage to the servient estate or unreasonably interfere with its enjoyment. The policy underlying the rule is that it permits servitudes to retain their utility over time and probably

reflects the expectations of the parties who create servitudes of indefinite duration (see § 4.3). Changes to take advantage of developments in technology generally present fewer conflicts than changes to accommodate development of the dominant estate, unless the newer technology is bigger, uglier, or noisier than the old. The manner of the servitude’s creation is more likely to be relevant in determining the changes that may be made to accommodate development of the dominant estate than developments in technology.

Illustrations:

11. An easement for “a horse and cart way” was created in 1889 to provide access to the rear of a commercial building. In the absence of unusual facts or circumstances, the easement can be used by motor vehicles. 12. Power Company holds an easement by prescription acquired by maintenance of electric-transmission lines on wooden poles. In the absence of other facts or circumstances, the conclusion would be justified that Power Company is entitled to replace the wooden poles with taller steel structures, unless the increased size of the structures would unreasonably interfere with the enjoyment of the servient estate. 13. Telephone Company holds easements acquired in the 1940s to maintain poles and lines for telephone purposes. In the absence of other facts or circumstances, it would be proper to conclude that Telephone Company may mount transmitters on its poles for cellular telephone transmissions unless the transmitters or transmissions would unreasonably interfere with enjoyment of the servient estate. Conflicts between the dominant and servient owners often arise when use of the dominant estate is changed. If the change in use of the dominant estate, or enterprise benefited by the easement, brings no change in the physical use of the easement, the dominant owner may continue to use the easement. If the manner of the use is changed, or the intensity, or frequency of the use is increased, the change is permissible under the rule stated in this section only if the change is reasonably necessary to accommodate normal development of the dominant estate. The manner in which the servitude was created may be relevant in determining the changes permissible under the rule stated in this section to the extent it shapes the inferences that may reasonably be drawn as to the intent or expectations of the parties under § 4.1. Determining whether a particular change in use of the dominant estate is “normal development” is often difficult. Since land use normally evolves, what may be abnormal development at one time may become normal at a later time. The degree and abruptness of transition may be relevant factors in determining whether the dominant owner may continue using an easement after changing use of the dominant estate. A gradual transition from wilderness to agricultural to suburban subdivision might be considered normal, where an abrupt transition from wilderness to subdivision would not. In one case, a roadway easement could continue to be used by the dominant estate through all phases of its development, while, in the other, it could not be used to serve the subdivision. See Comment h for further discussion of development that creates an unreasonable interference with use of the servient estate.

Illustrations:

14. O, the owner of Blackacre, conveyed a 60-foot-wide easement to Able, the owner of Whiteacre, a 40-acre parcel of undeveloped property in a rural area close to the suburbs of a major city. Ten years later Whiteacre was subdivided into 160 lots. The developer plans to improve the easement to provide primary access to the subdivision. In the absence of other facts or circumstances, the easement can be improved to serve the subdivision because the change from rural to suburban is normal development, and the width of the easement suggests that a substantial increase in use was contemplated by the parties. 15. Able, the owner of Whiteacre, a 40-acre parcel, plans to subdivide it into one-acre lots. Whiteacre’s access to a public highway is by a prescriptive easement in an old road across Blackacre. During the prescriptive period, Whiteacre was used for agricultural purposes. Because the easement was created by prescription, the conclusion would be proper that the increased use due to subdivision of Whiteacre would be contrary to the reasonable expectations of the owner of the servient estate and would unreasonably interfere with use of Blackacre. 16. In 1910, O, the owner of Blackacre, granted to A, the owner of Whiteacre, an easement for ingress and egress over Blackacre. At that time both properties were farms with their own wells and without electric service. The easement was used for access first by horse-drawn vehicles and later for mechanized farm equipment. By the 1980s Blackacre and the surrounding area had become developed with suburban residences using municipally supplied utilities, and paved roads were common in the area. In the absence of other facts or circumstances, the owner of Whiteacre is entitled to install utility lines in the easement and pave the road. g. Unreasonable damage to servient estate. Unless the parties have agreed otherwise, the holder of an easement is not entitled to cause unreasonable damage to the servient estate. Because the holder of an easement is generally entitled to enter the servient estate to make improvements and construct improvements, a certain amount of damage or inconvenience to the servient estate may be within the contemplation of the parties. However, under the rule stated in this section, the servitude owner is not entitled to cause any greater damage than that contemplated by the parties, or reasonably necessary to accomplish the purposes of the servitude. Unless clearly contemplated by the parties, it is not assumed that the servient owner intends to permit the easement owner to remove existing structures or terminate existing uses of the servient estate. In determining whether a particular improvement will cause unreasonable damage to the servient estate, aesthetics and the

character of the property are important concerns. Straightening and paving roads in urban environments, for example, may enhance the value and enjoyment of both dominant and servient estates, while the same actions in a rural area may significantly damage the servient estate. Whether a particular use of an easement is considered to cause unreasonable damage to the servient estate may change over time. A use that is reasonable when both dominant and servient estates are agricultural in character may become unreasonable when they have become suburban. Changes in technology may render damage formerly accepted as normal, or reasonable, abnormal and unreasonable.

Illustrations:

17. O, the owner of Blackacre, granted Able, the owner of Whiteacre, a lot restricted to single-family residential use, an easement for foot travel to the beach over the northerly 10 feet of Blackacre. At the time the easement was granted, a picturesque footpath passed through the northerly 10 feet, in which were located a masonry barbecue, numerous trees, and some boulders that did not obstruct the path. The properties are located in a scenic area used primarily for vacation and retirement homes. In the absence of other facts or circumstances, Able is not entitled to remove the barbecue, trees, or boulders, and is not entitled to change the character of the footpath because the changes would interfere with existing uses of Blackacre and would cause unnecessary damage to its picturesque character. 18. O, the owner of Blackacre, granted Pipeline Company an easement for the installation of a long-distance pipeline. After initially clearing a right of way and installing the lines, Power Company began aerial spraying of herbicides to keep the right of way clear. The herbicides were carried by the wind to other parts of Blackacre, killing the crops. In the absence of other facts or circumstances, the damage caused to Blackacre by the aerial spraying is unreasonable and not authorized by the easement. 19. O, the owner of Blackacre, granted Able, the owner of Whiteacre, an easement to construct and maintain a roadway across Blackacre. Able constructed the road in such a way that it caused severe flooding to a part of Blackacre. In the absence of other facts or circumstances, the damage caused to Blackacre by the flooding is unreasonable and not authorized by the easement. h. Unreasonable interference with enjoyment of servient estate. The general principle that, where the parties have not agreed otherwise, the servitude should be interpreted to reach a fair balance of their interests leads to the rule that the easement holder may not use it in such a way as to interfere unreasonably with enjoyment of the servient estate. What constitutes unreasonable interference will depend largely on the circumstances, particularly the purpose for which the servitude was created and the use of the servient estate made or reasonably contemplated at the time the easement was created. In determining what constitutes unreasonable interference with the enjoyment of the servient estate, aesthetic considerations may be relevant. Unless the circumstances show that the parties intended that an existing use of the servient estate change or terminate when the servitude was granted, the servitude holder is not entitled to interfere substantially with existing uses of the servient estate. Determining whether any particular development of the dominant estate is normal, so that increased use of the easement would be permissible, is often difficult. What is normal for an area changes over time, and what may be abnormal at one time may become quite normal later on. Conflicts over easement use frequently arise when property is moving from agricultural to residential in use and from rural to suburban in character. Although generally easements are permitted to evolve along with the properties they serve, the outcome in individual cases may depend on how fast the transition is taking place in the area and whether the easement was created by grant or prescription. The degree of change permitted for a prescriptive easement is generally less than that for an expressly created easement. In balancing the interests of the dominant-and servient-estate holders, conservation and neighborhood preservation concerns should be relevant as well as developmental concerns.

Illustrations:

20. O, the owner of Blackacre, granted to A, the owner of Whiteacre, an easement “for ingress and egress.” Blackacre and Whiteacre are large suburban lots used for residential purposes. In the absence of other facts or circumstances, A is not entitled to use the easement for ingress and egress by rail or heavy trucks because the use is not reasonably necessary for use of Whiteacre as a suburban residential lot and because the noise, vibrations, and appearances will interfere unreasonably with enjoyment of Blackacre. 21. Same facts as Illustration 21 except that Blackacre and Whiteacre are located in an industrial area and are suitable for industrial use. In the absence of other facts and circumstances, A is entitled to use the easement for access by train and truck as well as other forms of ground transport because the interference with enjoyment of Blackacre is reasonable. 22. In the 1920s, Greenacres was developed as a large-lot suburban development. Easements for bridle trails were reserved throughout the development. At the time the easements were created, many residents kept pleasure horses. In the absence of other facts or circumstances, the conclusion would be proper that the easements cannot be used by snowmobiles, motorcycles, or mountain bikes. The new technologies have not replaced horseback riding, the changed use is not necessary to maintain the utility or desirability of the easements, and because of the noise, speed, and wear and tear on the trails, the change in use would interfere unreasonably with enjoyment of the properties subject to the easements, as well as cause

unreasonable damage. 23. O, the owner of an island, holds an easement for access to a public road on the mainland over a privately owned lake that is suitable for recreational use. At the time the easement was created, there was a bridge between the two. After the bridge was destroyed during a storm, O built a causeway that significantly reduced utility of the lake for boating. Although O would have been entitled to construct a new bridge, in the absence of other facts or circumstances, O was not entitled to construct the causeway because it unreasonably interfered with use of the servient estate. 24. O, the owner of Blackacre, granted Able, the owner of Whiteacre, an easement to construct a drive across Blackacre for access to a public-highway. Blackacre is used as a cattle ranch. In the absence of other facts or circumstances, Able is not entitled to install interior fences along the drive that will interfere with the cattle operation on Blackacre unless the drive is not usable in an unfenced condition. 25. A, the owner of Whiteacre, acquired an easement by prescription over Blackacre by using a 20-foot-wide dirt road on Blackacre to bring agricultural equipment and supplies to Whiteacre and to haul timber and crops from Whiteacre. At the time the easement was acquired, both properties were used exclusively for agricultural purposes. Ten years later, A built one single-family residence on Whiteacre. In the absence of other facts or circumstances, A is entitled to continue to use the easement to serve the residence because the development of the dominant estate is normal and consistent with the size of the easement, and the change in use will not interfere unreasonably with enjoyment of Blackacre. 26. Same facts as Illustration 26 except that Whiteacre is subdivided into 100 residential lots. In the absence of other facts or circumstances, the conclusion would be proper that A is not entitled to use the easement for the subdivision because the increase in use would be unreasonable given the size of the easement and the reasonable expectations of O during the prescriptive period.

REPORTER’S NOTE

The rules stated in this section are generally accepted. See Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land § 7.04, Utilization (1988); G. Korngold, Private Land Use Arrangements, Chapter 4, Scope and Protection of Easements (1990). Wilson v. Brown, 897 S.W.2d 546 (Ark.1995) (in determining relations between dominant and servient owners, governing principle is that neither should unreasonably interfere with the rights of the other; dominant owner has duty to use the property so as not to damage owner of the servient estate). Servitude beneficiary is entitled to make any use reasonably necessary for convenient enjoyment that is within purpose, Comments c and d. Generally, the holder of an easement has the right to do everything necessary or convenient for full enjoyment of the easement or profit for the purpose intended, subject to the proviso, noted in the Reporter’s Notes to Comments g and h, that the use not unreasonably interfere with enjoyment of the servient estate. The owner of the servient estate is not entitled to place unreasonable restrictions on use of the easement: United States v. City of McAlester, 604 F.2d 42 (10th Cir.1979) (scope of watershed easement acquired by condemnation of Indian land to be determined by Oklahoma law; test is whether uses are incident or necessary to reasonable and proper enjoyment of easement). Kleinheider v. Phillips Pipe Line Co., 528 F.2d 837 (8th Cir.1975) (every easement carries with it the right to do whatever is reasonably necessary for the full enjoyment of the easement; the extent to which such incidental rights may be exercised depends upon the object and purpose of the grant and whether such rights are limited by the terms of the grant). United States v. 176.10 Acres of Land, More or Less, 558 F.Supp. 1379 (D.Mass.1983) (easement by necessity created by severance in 1852 can be used for such purposes as are reasonably necessary to full enjoyment of the premises). Lake Colleen Ent., Inc. v. Estate of Mark, 951 P.2d 427 (Alaska 1997) (use of public-access easement created to benefit land owned by state to benefit subsequent private owner of land within intended scope of easement; otherwise value of state land would be lower and potential for creation of landlocked parcels would increase). Mellon v. Century Cable Mgmt. Corp., 247 Conn. 790, 1999 WL 99990 (Mar. 2, 1999) (power company that had not acquired easement for its power poles could not grant valid license to cable television company for use of its poles). Connecticut Light & Power Co. v. Holson Co., 185 Conn. 436, 440 A.2d 935 (1981) (use of easement for truck loading and unloading reasonable even though easement referred only to farming uses). Birdsey v. Kosienski, 140 Conn. 403, 101 A.2d 274 (1953) (new sand and gravel business reasonably using easement although business not contemplated at the time of the grant). Gray v. Gore, 807 P.2d 643 (Idaho 1991) (trial court impermissibly restricted use of easement by necessity to daylight hours and provided for forfeiture of easement on violation of restriction). Boydstun Beach Ass’n v. Allen, 111 Idaho 370, 723 P.2d 914 (Ct.App.1986) (lot owners in 30-acre parcel held access easement over 25-foot strip from road to the beach and an easement for boating, bathing, and parking along a 75-foot-deep parcel with 200 feet of lake frontage; trial court erred in limiting parking to 25-foot access strip, express language controls; prohibition of use between midnight and 6 a.m. is an unreasonable limitation; easement holders are entitled to construct docks anywhere on easement; prohibition on open fires is reasonable despite use in past because not expressly granted in easement and smoke and threat of damage could constitute a nuisance; required placement of toilet facilities is reasonable;

requirement that association provide liability insurance to protect owners of servient estate places unjustifiable burden on exercise of easement). Guild v. Hinman, 695 A.2d 1190 (Me.1997) (changes in use of easement must be consistent with purpose for which easement was originally granted; competent evidence supports finding that parties to original conveyance creating right of way did not contemplate that the land would be used for residential purposes or that right-of-way could be used for services necessary to support a residence; at time easement was created, land was used for agricultural purposes, and later timber harvesting; no residential use was made for almost 50 years). Fine Line, Inc. v. Blake, 677 A.2d 1061 (Me.1996) (scope of deeded right of way, even if “for all purposes” is not necessarily unlimited; easement granted to access wood lot before any subdivision was proposed does not necessarily include right to install utilities or to use road for access to subdivision; remanded for evidence of objectively manifested intent of parties). American Tel. & Tel. Co. v. McDonald, 273 Mass. 324, 173 N.E. 502 (holder of easement for telephone poles and wires entitled to grant another company the right to attach a telephone toll cable on its poles; there is no additional burden on servient estate). Parker v. T & C Dev. Corp., 281 Md. 704, 381 A.2d 679 (1978) (scope of easement is determined by intent of parties at time contract was made; doubtful language must be resolved in favor of grantee; easement “for such pleasures as are usually indulged in by the public on park lands and waterfront beaches, including bathing, boating, fishing, and outing” includes rights of use at night as well as day and for 12 months of the year). Block v. Sexton, 577 N.W.2d 521 (Minn.Ct.App.1998) (scope of prescriptive easement measured and defined by use made of land giving rise to the easement; holder of easement is not limited to particular method of use in vogue when easement was acquired; other methods of use in aid of the general purpose for which it was acquired are permissible, but extent of easement should not be enlarged beyond objects originally contemplated; limitation on use of easement to period between May and October and on width to 20 feet justified where purpose of easement during prescriptive period was to give seasonal access to the dominant estate and roadway used was not more than 20 feet in width). Yecny v. Day, 174 Mont. 442, 571 P.2d 386 (1977) (servient owner not entitled to decree limiting use of prescriptive easement to one residence where uses during prescriptive period included transporting livestock, hauling timber, and other nonresidential uses). Huter v. Birk, 510 S.W.2d 177 (Mo.1974) (order restraining servient owner from erecting gates across road upheld where prescriptive easement was acquired by unrestricted use). Bolinger v. City of Bozeman, 158 Mont. 507, 493 P.2d 1062 (1972) (county could grant city the right to install a sewer line in a highway easement acquired by common-law dedication in 1891; highway easements can be used for utilities and communication as well as travel and can accommodate changing technology and population; court rejects the distinction sometimes drawn between scope of easements for urban and rural streets). Hoffman v. Capitol Cablevision Sys., 52 A.D.2d 313, 383 N.Y.S.2d 674 (1976) (addition of television cable to telephone-and-electric line easement does not overburden easement; public interest in cable access outweighs harm, if any, to servient owner). Centel Cable Television Co. v. Cook, 58 Ohio St.3d 8, 567 N.E.2d 1010 (1991) (apportionability of easement in gross depends on intention of the parties; inclusion of language “successors and assigns” in grant not conclusive; exclusivity of use right coupled with fact that right to apportion would increase value of easement justified inference that easement for transmission of electric energy was intended to be apportionable). Jolliff v. Hardin Cable Television Co., 269 N.E.2d 588 (Ohio 1971) (installation of cable television line does not overburden easement for electric and telephone lines). Ziegler v. Ohio Water Service Co., 18 Ohio St.2d 101, 247 N.E.2d 728 (1969) (installation and maintenance of underground-water pipeline in public-highway easement is not added burden for which compensation must be awarded). Friedman Transfer & Constr. Co. v. Youngstown, 176 Ohio St. 209, 198 N.E.2d 661 (1964) (addition of water pipeline to bridge constructed in aerial easement for bridge purposes did not constitute additional burden on abutting freeholder so as to require payment of additional compensation). City of Elk v. Coffey, 562 P.2d 160 (Okla.Ct.App.1977) (platted easements for installation and maintenance of utilities were not intended for use by garbage trucks). Buhl v. U.S. Sprint Communications Co., 840 S.W.2d 904 (Tenn.1992) (installation of telephone cable in railroad right of way exceeds scope of railroad easement; compensation is due servient owner). Orange County, Inc. v. Citgo Pipeline Co., 934 S.W.2d 472 (Tex.Ct.App.1996) (retention of 20″ pipeline and ½ interest in easement for pipelines on assignment of 12″ pipeline to another did not overburden servient estate; easement is exclusive and servient owner is entitled to payment for each additional pipeline placed in easement). Coleman v. Forister, 514 S.W.2d 899 (Tex.1974) (easement for ingress and egress across parcel adjacent to strip adjoining waterfront gave right of access only, not right to linger for recreational purposes). Pittman v. City of Amarillo, 598 S.W.2d 941 (Tex.Ct.Civ.App.1980) (city entitled to pave dedicated public street without paying to relocate servient owner’s private sewer line; servient owner’s rights cannot interfere with or restrict public use of street easement). Hise v. BARC Elec. Coop., 492 S.E.2d 154 (Va.1997) (prescriptive easement acquired by installation, maintenance, and

exclusive use of power poles for 20 years was 30 feet wide and exclusive; power company periodically sprayed and cleared foliage and undergrowth along pole line for a width of at least 30 feet; no use was made of easement by any person other than power company and its permittees; right acquired was transferable and apportionable to cable and telephone companies; easement acquired by eminent domain also exclusive and apportionable). Cases interpreting § 541(a) of the Cable Communications Policy Act of 1984, 47 U.S.C.A. § 521 et seq. differ on the question whether franchised cable television companies have the right to install wires on privately granted easements. Some cases distinguish between easements granting access to individual dwellings or units and those providing access to several properties. C/R TV, Inc. v. Shannondale, Inc., 27 F.3d 104 (4th Cir.1994) (subdivision developer’s attempt to deny access to competing cable company over utility lines and private roads in development ineffective). Media Gen’l Cable of Fairfax, Inc. v. Sequoyah Condominium Council of Co-Owners, 991 F.2d 1169 (4th Cir.1993) (cable company not entitled to access to condominium units through private easements granted to utility companies over condominium common areas). Cable Holdings of Georgia, Inc. v. McNeil Real Est. Fund VI, Ltd. 953 F.2d 600 (11th Cir.1992) (statute does not authorize access to multi-unit apartment building through private-utility easements). Centel Cable Television Co. of Florida v. Thos. J. White Development Corp., 902 F.2d 905 (11th Cir.1990), cert. denied, 506 U.S. 862 (1992) (developer’s attempt to deny cable company access to utility easements within development ineffective under Cable Act; Cable Act was intended to forbid private agreements that would prevent cable operators from piggybacking on electric, gas, and other utility transmission-line easements). Cable Investments, Inc. v. Woolley, 867 F.2d 151 (3d Cir.1989) (statute did not authorize gaining access to multi-unit dwellings). Centel Cable Television Co. of Florida v. Burg & DiVosta Corp., 712 F.Supp. 176 (S.D.Fla.1988) (developer cannot deny franchised cable operator access to development during installation of electrical and telephone facilities while granting access to cable company owned by developer). Rollins Cablevue, Inc. v. Saienni Ent., 633 F.Supp. 1315 (D.Del.1986) (franchised cable operator had statutory right of access to residents in multi-unit dwelling). Hilligoss v. Illini Cablevision of Ill., Inc., 689 N.E.2d 650 (Ill.Ct.App.1998) (franchised cable company entitled to use telephone easements granted to GTE; provision in deed that easement does not include right to place additional communications lines in easement ineffective to deny rights under § 541(a); easement for telephone lines is public easement because not limited to serving a single property). Mumaugh v. Diamond Lake Area Cable TV Co., 456 N.W.2d 425 (Mich.Ct.App.1990) (cable tv company entitled to use electric-utility easement created by private grant in 1922; statute authorizes use of all easements dedicated to compatible uses whether public or private). Cable Assoc., Inc. v. Town & Country Mgmt. Corp., 709 F.Supp. 582 (E.D.Pa.1989) (access rights authorized by statute limited to easements dedicated to public use). Maintenance, repair, and improvement of the servient estate, Comment e. Byerley v. Griffin, 512 So.2d 91 (Ala.1987) (holder of easement for ingress and egress over 60-foot roadway entitled to extend paved drive from dominant estate onto roadway and to install concrete pipe beneath portion of drive situated in easement to prevent erosion of dominant estate and roadway). Papa v. Flake, 18 Ariz.App. 496, 503 P.2d 972 (1972) (holder of irrigation-ditch easement acquired by prescription entitled to line ditch with concrete where seepage provided no benefit to owner of servient estate; easement holder has right to repair and maintain easement). Foran v. Molitor Ford, 279 Ark. 121, 649 S.W.2d 177 (1983) (right to maintain road easement acquired by prescription did not include right to make major alterations by deepening ditches from 1 foot to 8 feet, widening them from 3 feet to 10 feet, and raising road by 3 feet). Shrull v. Rapasardi, 33 Colo.App. 148, 517 P.2d 860 (1973) (owner of easement for drainage ditch entitled to excavate and maintain ditch through swampy area of servient estate). Dahl v. Rettig, 32 Colo.App. 87, 506 P.2d 1251 (1973) (holder of right of way over existing road entitled to construct bridges to replace ford and washed-out bridge if reasonably designed to afford efficient access and harmonious with similar structures in the vicinity). Illustration 8 is based on Kuras v. Kope, 205 Conn. 332, 533 A.2d 1202 (1987) (holder of prescriptive right of way entitled to grade, pave, install bridge to replace ford, and make other improvements necessary to make easement suitable and convenient so long as burden on servient estate is not increased). Marshall v. Georgia Power Co., 134 Ga.App. 479, 214 S.E.2d 728 (1975) (holder of easement for transmission lines expressly entitled to remove and trim trees that interfered with easement; Christmas trees not covered by provision requiring compensation of servient owner for removal of crops, fruit trees, or timber). Abbott v. Nampa School Dist. No. 131, 119 Idaho 544, 808 P.2d 1289 (1991) (placing irrigation ditch in underground pipe with cement collar and safety screen on servient estate is common and necessary in modern irrigation practices and does not overburden easement).

Jordan v. Ingram, 95 Idaho 339, 509 P.2d 324 (1973) (holder of prescriptive easement for alley entitled to construct ornamental stone wall to protect alley from falling rocks and erosion where wall did not damage servient estate; easement owner has right to protect and maintain it). Beggs v. Ragsdale, 120 Ill.App.3d 333, 457 N.E.2d 1079 (1983) (holder of easement has right to grade and gravel easement). Continental Ill. Nat’l Bank & Trust Co. v. Village of Mundelein, 85 Ill.App.3d 700, 407 N.E.2d 1052, 41 Ill.Dec. 554 (1980) (holder of easement for sewer line entitled to replace 27-inch line with 48-inch line when old line became overloaded). Bromelmeier v. Brookhart, 570 N.E.2d 90 (Ind.Ct.App.1991) (prescriptive rights acquired for access to shore of lake and maintenance of pier). Brock v. B & M Moster Farms, Inc., 481 N.E.2d 1106 (Ind.Ct.App.1985) (easement holder not entitled to pave right of way granted in 1911 for wagon, horses, and foot passers unless necessary to make it passable). Farmer v. Kentucky Utilities Co., 642 S.W.2d 579 (Ky.1982) (holder of prescriptive easement for overhanging electric-transmission lines entitled to enter servient estate to remove vegetation that interferes with proper operation of electric line). Kee v. Francis Camel Construction, 532 So.2d 378 (La.Ct.App.1988) (servient owner not entitled to damages for removal of trees located in right of way). Tate v. South Central Bell Telephone Co., 386 So.2d 139 (La.Ct.App.1980) (telephone company entitled to bury cable in utility easement, but liable to servient owner for damage to fence and trees). South Central Bell Telephone Co. v. Dempster, 303 So.2d 280 (La.Ct.App.1973) (holder of right of way servitude for underground cable entitled to enter servient estate to remove induction coils from cable to improve telephone service). Gendron v. Central Maine Power Co., 379 A.2d 1002 (Me.1977) (power company entitled to replace old wooden poles with longer ones, add extra pole for payment specified in 1927 deed, replace wires with heavier ones, add aerial ground wires, deviate slightly from old center line, and spray herbicide on right of way, where burden on servient estate will not be significantly increased and evidence does not establish that spraying will cause damage). Mahoney v. Devonshire, 86 Md.App. 624, 587 A.2d 1146 (1991) (prescriptive easement for road included right to improve road by grading and asphalting). Glenn v. Poole, 12 Mass.App.Ct. 292, 423 N.E.2d 1030 (1981) (holder of prescriptive easement entitled to make necessary repairs and to improve visibility by flaring corners of entrance onto public way; hazard of blind entry is not one that easement owner must endure indefinitely if improvement does not unreasonably increase burden on servient estate). Carlton v. Warner, 46 Mich.App. 60, 207 N.W.2d 465 (1973) (bulldozing road that became impassable was reasonable maintenance). Boggs v. Eaton, 379 So.2d 520 (Miss.1980) (easement for water “by means of the one pipe now connecting said premises with the well” includes right to repair and replace pipe when necessary). Sharon v. Hayden, 246 Mont. 186, 803 P.2d 1083 (1990) (irrigation-ditch easement includes right to use both banks to clean out the ditch and to make necessary repairs). County of Sarpy v. Iske, 189 Neb. 621, 204 N.W.2d 146 (1973) (easement for agricultural levee included right to run power line for motors to pump water over the levee into the river). Boss v. Rockland Elec. Co., 95 N.J. 33, 468 A.2d 1055 (1983) (easement to construct and maintain electric line included right to remove trees as necessary for proper operation of the system). Illustration 2 is based on Wechsler v. People of New York, 147 A.D.2d 755, 537 N.Y.S.2d 900 (1989) (easement for hunting and fishing included right to post servient estate with signs to prevent fishing and hunting by others but did not include right to erect permanent structures). Illustration 9 is based on Radspinner v. Charlesworth, 369 N.W.2d 109 (N.D.1985) (holder of easement for access over north 30 feet of servient estate entitled to remove trees within the easement area to construct drive). Jewell v. Kroo, 268 Or. 103, 517 P.2d 657 (1973) (bulldozing rough road from dominant estate to spring and replacement of old earthen dam with higher concrete dam were reasonably necessary for enjoyment of right to take up to 500 gallons of water per day). Miller v. Street, 663 S.W.2d 797 (Tenn.Ct.App.1983) (holder of right of way to creek for use of water for stock and use of spring and spring house entitled to create reservoir and lay pipes to carry water). Lamar Co. Elec. Coop. Ass’n v. Bryant, 770 S.W.2d 921 (Tex.Ct.App.1989) (holder of prescriptive power-line easement had right to cut tree limbs as necessary to repair downed power line but was not entitled to cut down 36 trees at ground level). City Pub. Serv. Bd. v. Karp, 585 S.W.2d 838 (Tex.Civ.App.1979) (holder of transformer easement entitled to replace underground transformer with above-ground transformer to resolve maintenance problems due to seepage of water and mud). Phillips Pipe Line Co. v. Clear Creek Properties, Inc., 553 S.W.2d 389 (Tex.Civ.App.1977) (holder of 20-foot-wide easement for installation and removal of pipes and pipelines and for access to the lines did not include the right to remove trees and other vegetation outside the 20-foot strip for installation of new line within the strip). Big Cottonwood Tanner Ditch Co. v. Moyle, 109 Utah 213, 174 P.2d 148 (1946) (holder of easement for irrigation ditch has the right to line the ditch to prevent loss of water whether created by grant or prescription, and without regard to damage to servient estate from loss of riparian foliage; servient landowner should have foreseen need to waterproof ditch in arid climate).

Hayes v. Acquia Marina, Inc., 243 Va. 255, 414 S.E.2d 820 (1992) (paving easement for road access to marina was reasonable; easement holder is entitled to make reasonable improvements). Wykoff v. Barton, 646 P.2d 756 (Utah 1982) (based on testimony of grantor’s president, reservation of “a right-of-way for ingress and egress over Easterly 25.0 feet” of the property conveyed was intended for foot-and-vehicular traffic associated with use of grantor’s residential property and transport of farm animals, not for a general right of way; easement holder’s proposal to fence west side of easement would deprive servient owner of ability to use easement area for pasture; dissent took position this was general right of way and that reasonable accommodation of interests should allow easement holder to fence right of way to keep cattle out and permit residential development of dominant estate). Hoffman v. Smith, 172 W.Va. 698, 310 S.E.2d 216 (W.Va. 1983) (grantor of easement over farm land retains the right to erect gates that do not unreasonably interfere with use of easement; express provision in easement grant that “where gates and bars are placed, they are to be maintained and kept closed” precludes easement holders from substituting cattle guards for gates). Changes in manner, frequency, and intensity of use, Comment f. Subject to the proviso that the change not unreasonably damage or interfere with use or enjoyment of the servient estate, the owner of the easement may change the manner of use to take advantage of developments in technology and may change the frequency or intensity of use to accommodate normal development of the enterprise benefited by an easement in gross: Kleinheider v. Phillips Pipe Line Co., 528 F.2d 837 (8th Cir.1975) (third pipe line could be installed in 1972 under 1930 easement granting right to install “pipe line or pipe lines” with payment equal to original consideration to be paid for each additional line because within the scope of the easement and no evidence that it was unreasonable or unduly burdensome to the servient estate). Barraclough v. Arkansas Power & Light Co., 268 Ark. 1026, 597 S.W.2d 861 (Ct.App.1980) (holder of easement for double line of transmission poles and such other uses as may be necessary for its business entitled to replace wooden utility poles with steel towers). Illustration 12 is based on Hayes v. City of Loveland, 651 P.2d 466 (Colo.Ct.App.1982) (replacement of wooden power poles with taller steel structure is change in degree and not in kind and within scope of prescriptive easement; city not liable in inverse condemnation action). Talty v. Commonwealth Edison Co., 38 Ill.App.3d 273, 347 N.E.2d 74 (1976) (holder of perpetual right to construct, operate, use, and maintain lines for transmission of electrical energy entitled to convert 220KV line to 345KV line and replace old towers with new ones 16 feet higher and 2 cross arms instead of 1). S.D. Warren Co. v. Vernon, 697 A.2d 1280 (Me.1997) (hauling 55-gallon drums of herbicide over prescriptive easement acquired by use of road for commercial logging does not overburden easement; commercial forestry operation necessarily involves transport of potentially objectionable and hazardous materials; no evidence that burden is any greater than that existing during prescriptive period). Gendron v. Central Maine Power Co., 379 A.2d 1002 (Me.1977) (power company entitled to replace old wooden poles with longer ones, add extra pole for payment specified in 1927 deed, replace wires with heavier ones, and add aerial ground wires, where burden on servient estate will not be significantly increased). Bolinger v. City of Bozeman, 158 Mont. 507, 493 P.2d 1062 (1972) (highway easements can be used for utilities and communication as well as travel and can accommodate changing technology and population). Lussier v. New England Power Co., 133 N.H. 753, 584 A.2d 179 (1990) (holder of easement for electric and telephone lines entitled to add additional power lines and structures necessary so long as additions did not unreasonably interfere with use of servient estate). Hoffman v. Capitol Cablevision Sys., 52 A.D.2d 313, 383 N.Y.S.2d 674 (1976) (addition of television cable to telephone-and-electric-line easement does not overburden easement; public interest in cable access outweighs harm, if any, to servient owner). Minnkota Power Coop., Inc. v. Lake Shure Properties, 295 N.W.2d 122 (N.D.1980) (easement to “place, construct, operate, repair, maintain, and replace” an electric transmission line authorized holder to uprate line from 230kv to 345kv and increase height of towers by 7 feet; record supported finding that evidence of biological effects of increased voltage is inconclusive and impact will be minimal; scope of easement not limited by height of towers and capacity of lines originally installed; where document was silent on capacity, easement included right to uprate to a reasonable degree). Jolliff v. Hardin Cable Television Co., 26 Ohio St.2d 103, 269 N.E.2d 588 (1971) (installation of cable-television line does not overburden easement for electric and telephone lines). Kell v. Oppenlander, 961 P.2d 861 (Or.Ct.App.1998) (conversion of garage to storage room held within the scope of easement for use “of existing structure”; easement holder is entitled to change use over time so long as burden on servient estate is not substantially increased; where language is equivocal and there is scant evidence of the parties’ intent an easement is given its ordinary scope, permitting use reasonably to change with changing needs). Lower Colorado River Auth. v. Ashby, 530 S.W.2d 628 (Tex.Ct.App.1975) (holder of 100-foot easement to construct, reconstruct, and hang wire on all necessary or desirable appurtenances entitled to replace wooden supports with metal towers twice as high, to add transmission lines, and to increase voltage). Changes in the manner, frequency, and intensity of use are permissible to accommodate normal development of the dominant

estate: United States v. 176.10 Acres of Land, More or Less, 558 F.Supp. 1379 (D.Mass.1983) (easement by necessity created by severance in 1852 can be used for such purposes as are reasonably necessary to full enjoyment of the premises; parties are deemed to have intended that easement be used for normal development of the dominant estate; that easement would be used in the future for utilities and driveway for single residential home was reasonably foreseeable in 1852). Lichteig v. Churinetz, 9 Conn.App. 406, 519 A.2d 99 (1986) (increase in traffic on 9-foot-wide right of way created by grant to daily use by 5 to 7 vehicles for access to residence not unreasonable or unforeseeable; reasonable use is question of fact to be determined on case-by-case basis). Wattson v. Eldridge, 207 Cal. 314, 278 P. 236 (1929) (canals of Venice could be filled and converted to surface highways without compensation to abutting landowners; “dedicator is presumed to have intended the property to be used in such way by the public as will be most convenient and comfortable and according to not only the properties and usages known at the time of the dedication, but also to those justified by lapse of time and change of conditions”). Kuras v. Kope, 205 Conn. 332, 533 A.2d 1202 (1987) (installation of underground utility lines would unreasonably increase burden of prescriptive easement on servient estate; easement acquired by use of 10-foot-wide dirt road across farm). Birdsey v. Kosienski, 140 Conn. 403, 101 A.2d 274 (1953) (new sand-and-gravel business reasonably using easement although business not contemplated at the time of the grant). Smith v. Combs, 554 S.W.2d 412 (Ky.Ct.App.1977) (whether extension of road to additional lots carved out of original tract is an unreasonable burden is a question of fact; if additional use was contemplated by the parties, it cannot be held unreasonable). Morrell v. Rice, 622 A.2d 1156 (Me.1993) (scope of implied easement by necessity not determined solely with reference to use at time of creation; better rule is to define it by reference to reasonable enjoyment of the land and all lawful uses to which it may be put; access easement includes right to install utilities; it was error to limit use to benefit one single-family home in absence of evidence that other uses of dominant estate would be unlawful or create unreasonable burden on servient estate). Gutcheon v. Becton, 585 A.2d 818 (Me.1991) (prescriptive easement acquired by use for access to house, and parcels used for pasture and wood lot could be used for access to residences subsequently built on pasture and wood-lot parcels; prescriptive way must encompass some flexibility of use and adapt to natural and foreseeable developments in use of surrounding land to remain useful to dominant estate; increased use did not overburden servient estate where road was not visible from house on servient estate and there was no evidence of increased noise or other effluence associated with traffic). Jost v. Resta, 536 A.2d 1113 (Me.1988) (prescriptive easement established by use for vehicular access does not include right to install utilities; scope determined by use during prescriptive period; court refused to declare that easement was limited to use by one single-family seasonal dwelling where there was no evidence that easement holder was overburdening it or proposing to do so). Michaelson v. Nemetz, 4 Mass.App.Ct. 806, 346 N.E.2d 925 (1976) (no evidence that construction of 260-car parking garage on dominant estate will increase the frequency of use of the way to the point that it obstructs use of the way or constitutes a nuisance). George v. Dickinson, 504 S.W.2d 658 (Mo.Ct.App.1974) (prescriptive easement acquired for use of way without gates; holder not restricted to use on foot during wet periods even though use during prescriptive period was by vehicle during dry weather and walking in wet weather). Leffingwell Ranch, Inc. v. Cieri, 916 P.2d 751 (Mont.1996) (subdivision of ranch parcel into 174 20-acre parcels would result in overburden of easement created in 1927 for access to 3 homesteads used for agricultural purposes; requirement in deed that gates be kept closed and prohibiting fencing of right of way indicate that parties did not contemplate substantial traffic). Lindley v. Maggert, 198 Mont. 197, 645 P.2d 430 (1982) (court will not declare that proposed uses of easement will increase burden beyond that contemplated when easement was established before easement has been used and without evidence of any increased burden; the court will not declare limitations on the basis of speculation as to possible future uses). Cote v. Eldeen, 119 N.H. 491, 403 A.2d 419 (1979) (limitations on hours of commercial operation and number of loads of gravel and wood that could be hauled per week, and restriction to use by vehicles owned by easement holder in gravel-and-wood removal operations were within trial court’s discretion in determining reasonable use; daily commercial use of easement by large trucks exceeded the scope of the easement if acquired by prescription since use prior to 1970 was only occasional and of noncommercial nature, and was unreasonable if the easement was acquired as a result of abandonment of abutting public highway). Krause v. Taylor, 135 N.J.Super. 481, 343 A.2d 767 (1975) (change in use of dominant estate from nursery to residence and division of dominant estate into 2 parcels was reasonably within contemplation of the parties). Erly Realty Dev., Inc. v. State, 43 A.D.2d 301, 351 N.Y.S.2d 457 (1974) (reservation by Van Rensselaer in grant of Patroon Creek to the city of right to erect convenient bridges or passages across the creeks was not limited by mention of agricultural-and-farming purposes; in the absence of express or implied limitations on the use of the easement, commercial development of the dominant estate would be a normal use and increased use of easement would not unreasonably burden servient estate so long as it did not disturb the city’s right to “pure and wholesome water”). Liles v. Wedding, 733 P.2d 952 (Or.Ct.App.1987) (extent of uses authorized by easement by necessity measured by uses the

parties might reasonably have expected from future uses of dominant tenement; court should have limited easement to agricultural, forestry, and personal use, uses of the road at the time of the conveyance). Lethin v. United States, 583 F.Supp. 863 (D.Or.1984) (1887 grant of land for establishment of a life-saving station on the Columbia River together with an easement for ingress and egress “for the purpose of carrying out the intentions of Congress in establishment of Life Saving Stations” created a right of access that could be used by National Marine Fisheries Service for research lab after Coast Guard decommissioned the life-saving station and declared the property excess; general purpose and use of the easement has not changed). Dennis v. French, 135 Vt. 77, 369 A.2d 1386 (1977) (prescriptive easement over drive acquired by hauling firewood to shed, entry by foot and tractor for cultivating household garden, hauling hay, stones, and trash by truck or tractor and access to chicken house, and access to original dwelling house on a seasonal basis, did not include rights to use for access to mobile home added to land and occupied year-round or to park a pickup truck on the drive; prescriptive right is coextensive with use during prescriptive period). Carter v. County of Hanover, 496 S.E.2d 42 (Va.1998) (scope of easement by implication based on prior use limited to providing access to tillable acreage of Sweet Field; road not used to provide access to other portions of dominant estate or for other purposes at time of severance). Logan v. Brodrick, 29 Wash.App. 796, 631 P.2d 429 (1981) (increase in traffic to maximum of 80-plus vehicles for a weekend summer day did not unreasonably burden easement for access to resort, given increase in population in the area and increasing public interest in recreation). Holmes Herefords, Inc. v. United States, 753 F.Supp. 901 (D.Wyo.1990) (use of easement acquired by condemnation may increase to meet current needs and uses of dominant estate). The way in which the servitude was created affects the degree of change permitted to the extent it affects the inferences that may be drawn as to the reasonable expectations of the parties: Schwob v. Green, 215 N.W.2d 240 (Iowa 1974) (use of easements created by implication on conveyance of parcel created on subdivision of parcel formerly belonging to hunting club to use private roads limited to use for residences; commercial use of parcel overburdened easement by greatly increased use; scope of easement by implication is determined by use at time of severance). Long v. Sendelbach, 56 Or.App. 158, 641 P.2d 1136 (1982) (easement to use bridge expressly reserved by deed is not limited to use of bridge for agricultural purposes even though dominant estate was used for agricultural purposes at time of the grant; trial court’s reliance on case involving easement created by implication erroneous; use of implied easement is limited to use appropriate at time of creation; easement by grant may be put to any reasonable use). Adams v. Crook, 43 Or.App. 427, 602 P.2d 1143 (1979) (easement created by implication from prior use in 1946 limited to serving agricultural uses of dominant estate; unlikely that parties would have foreseen a subdivision of the 130 acres into 5 or 6 parcels). Barrett v. Kunz, 604 A.2d 1278 (Vt.1992) (easement described as “farm road” was general-purpose access easement; previous uses of road included logging, agriculture, and use by townspeople for various recreational purposes for many years). Unreasonable damage or interference with enjoyment of the servient estate, Comments g and h. Unless contemplated by the parties, the beneficiary of an easement or profit is not entitled to cause unnecessary damage to the servient estate in using the easement or profit, or in constructing or maintaining improvements for its enjoyment: Kleinheider v. Phillips Pipe Line Co., 528 F.2d 837 (8th Cir.1975) (third pipe line could be installed in 1972 under 1930 easement granting right to install “pipe line or pipe lines” with payment equal to original consideration to be paid for each additional line because within the scope of the easement and there was no evidence that it was unreasonable or unduly burdensome to the servient estate). Alonzo v. Sanford, 465 So.2d 1131 (Ala.Ct.Civ.App.1984) (easement for overhanging eaves and discharge of water from roof intended for occasional overflows when gutter system could not handle heavy rainfall; dominant owner had no right to alter gutter system to discharge all rain water onto servient estate, causing damage). Krieger v. Pacific Gas & Electric Co., 119 Cal.App.3d 137, 173 Cal.Rptr. 751 (1981) (water-canal easement does not include right to Gunite earthen ditch to prevent seepage that supports riparian vegetation). Peterson v. Town of Oxford, 189 Conn. 740, 459 A.2d 100 (1983) (reservation of drainage rights by developer who designed brook across servient estate not intended to permit discharge increasing flow into brook that caused erosion to servient estate). Center Drive-In Theatre, Inc. v. City of Derby, 166 Conn. 460, 352 A.2d 304 (1974) (city required to restore dike breached during construction of sewer line pursuant to easement grant in absence of showing that maintaining breach in dike was necessary for use of the easement). Hall v. City of Orlando, 555 So.2d 963 (Fla.Dist.Ct.App.1990) (temporary injunction should have issued against city’s installation of 54-inch drain pipe that could double flow of water over drainage easement and cause irreparable injury to servient estate). Professional Exec. Center v. LaSalle Nat’l Bank, 211 Ill.App.3d 368, 570 N.E.2d 366, 155 Ill.Dec. 853 (1991) (holder of easement to use septic field not entitled to construct curtain drain and swale to divert storm waters, even though reasonable

and necessary for use of easement, because changes would impose undue burden on servient estate by lowering its value and threatening damage to building on adjacent site). Illustration 17 is based on Flower v. Valentine, 135 Ill.App.3d 1034, 90 Ill.Dec. 703, 482 N.E.2d 682 (1985) (servient owner entitled to retain natural obstructions and barbecue in place at time easement granting right of foot travel to the shore was created). Beggs v. Ragsdale, 120 Ill.App.3d 333, 457 N.E.2d 1079 (1983) (holder of easement does not have the right to build fence that will interfere with servient owner’s cattle operation where evidence did not establish that cattle obstructed use of easement). Illustration 23 is based on Triplett v. Beuckman, 40 Ill.App.3d 379, 352 N.E.2d 458 (1976) (holder of easement for roadway across an existing bridge to an island cannot substitute causeway for bridge where causeway interfered with servient owner’s use of lake; holder of easement must rebuild bridge to obtain roadway access to island). Board of Comm’rs v. Illinois Cent. Gulf R.R., 379 So.2d 838 (La.Ct.App.1980) (servient owner interfered with railroad-track easement by installing plastic sewer line 12 to 18 inches from track 1 foot below asphalt surface, but easement holder was liable for damaging sewer pipe in process of regrading the track because it knew location of line, proceeded with work after notice that damage was occurring, and alternative method of elevating the track was available at minimal expense). Hidden Valley Lake, Inc. v. Kersey, 169 Ind.App. 339, 348 N.E.2d 674 (1976) (holder of 15-foot easement for installation of sewer lines exceeded scope of easement by causing damage to swath 20 to 50 feet wide and destroying 32 trees). Stirling v. Dixie Elec. Membership Corp., 344 So.2d 427 (La.Ct.App.1977) (holder of easement for electric-transmission line with express right to cut and trim trees and shrubs as necessary not entitled to apply herbicide by helicopter where indiscriminate use of chemicals destroyed trees and shrubs in servient owner’s yard that were not threat to power line). Davis v. Bruk, 411 A.2d 660 (Me.1980) (holder of easement not entitled to pave right of way to prevent washing away of gravel surface; such a material change in the surface may give rise to an added burden on the servient estate such as subjecting it to rapid transit of motor vehicles near servient owner’s home posing safety problems that a country way might not). Anne Arundel County v. Litz, 412 A.2d 1256 (Md.Ct.Spec.App.1980) (even if county had acquired easement to maintain drainage system discharging into lake, evidence that depth had decreased from 15 to 9.3 feet and that sandbar had appeared showed that use was excessive). Fedder v. Component Structures Corp., 23 Md.App. 375, 329 A.2d 56 (1974) (holder of easement to build road meeting county specifications entitled to regrade old right of way, but liable for flood damages to servient estate caused by change in drainage). Mumaugh v. Diamond Lake Area Cable TV Co., 183 Mich.App. 597, 456 N.W.2d 425 (1990) (installation of cable-television facilities on existing privately granted power-line easements pursuant to federal Cable Communications Policy Act of 1984 was not a taking because it did not materially increase the burden on servient estate). Buras v. Shell Oil Co., 666 F.Supp. 919 (S.D.Miss.1987) (holder of easement for pipeline not liable for loss of topsoil from easement unless negligently or unnecessarily removed, but is liable for destruction of topsoil on adjacent property and for erosion damage without regard to lack of due care). Leone v. Hess Pipeline Co., 541 F.Supp. 466 (S.D.Miss.1982) (holder of pipeline easement not liable for flooding damage caused to servient estate by beaver dam subsequently erected on easement). Thurston Enterprises, Inc. v. Baldi, 128 N.H. 760, 519 A.2d 297 (1986) (holder of easement for access to parcel to be used for boat storage and parking not entitled to removal of theater marquee and ticket booth that partially obstructed way and prevented use by large trucks hauling fill dirt because easement expressly provided that easement not interfere with use of servient estate, marquee and ticket booth were present at the time of the grant, and smaller trucks could be used; general rule that easement created by deed is limited to reasonable use reinforced by express limitation in grant; easement holder must return right of way to its original condition, subject to reasonable use). Green v. Mann, 655 N.Y.S.2d 627 (App.Div.1997) (easement holder entitled to removal of bulkhead constructed directly atop the point of entry to deep-water portion of lake suitable for swimming; servient owner’s claim that liability insurance would be cancelled did not justify interference with easement where there was failure, failed to establish liability for injury to persons using the easement; in absence of any obligation to repair or maintain the easement, servient owner’s only duty was to refrain from unreasonably interfering with dominant owner’s use of easement). Baumbach v. Poole, 266 Or. 154, 511 P.2d 1219 (1973) (holder of easement not entitled to push dirt beyond boundaries of easement during improvement of roadway). Schiff v. Upper Salford Township, 456 Pa. 420, 321 A.2d 876 (1974) (municipality properly enjoined from unreasonably increasing flow of surface water through prescriptive easement; increase caused by changes in ditch bank was unreasonable where erosion of topsoil and damage to trees and shrubs resulted). Ballington v. Paxton, 488 S.E.2d 882 (So.Car.Ct.App.1997) (servient owner entitled to erect fence and locked gate to restrict access to easement where necessary to protect his property after use of easement had resulted in substantial damage from trespassers and others). McCammon v. Meredith, 830 S.W.2d 577 (Tenn.Ct.App.1991) (easement must be used in such manner as to avoid unnecessary inconvenience to owners of servient estate).

Lamar Co. Elec. Coop. Ass’n v. Bryant, 770 S.W.2d 921 (Tex.Ct.App.1989) (holder of prescriptive power-line easement had right to cut tree limbs as necessary to repair downed power line but was not entitled to cut down 36 trees at ground level). Mobley v. Saponi Corp., 215 Va. 643, 212 S.E.2d 287 (1975) (overburden of easement may be enjoined without showing of damage but granting of injunction lies within discretion of trial court and may be denied if hardship to the defendant or the public is disproportionate to the injury to the servient owner; injunction properly denied against raising lake level where there was no evidence easement had been exceeded by higher water level).

STATUTORY NOTE


Federal: Cable Communications Policy Act, 47 U.S.C.A. § 541(a)(2) provides that cable television franchises “shall be construed to authorize the construction of a cable system over public rights-of-way, and through easement... which is within the area to be served by the cable system and which have been dedicated for compatible uses....” Louisiana: La. Civ. Code Ann. art. 745 (owner of dominant estate has an obligation to cause the least possible damage to the servient estate when building or maintaining it). Maine: 33 M.R.S.A. § 458 (owner of easement or right of way does not have an implied right to install utility services on or under right of way if right of way is originally established in written instrument executed on or after January 1, 1990, and instrument does not expressly provide the right). Massachusetts: Mass. Ann. Laws ch. 187, § 5 (owners of private ways created by deed have the right by implication to place appurtenances necessary for transmission of gas, electricity, telephone, water, and sewer service in the way, provided the facilities do not unreasonably obstruct the way, and provided the use does not interfere with or be inconsistent with existing use of the way by others). Utah: U.C.A. 1953 § 54-4-13: (1) Public utility commission may direct that a public utility allow another public utility to use its conduits, subways, tracks, wires, poles, pipes or other equipment located on, over, or under streets and highways, and prescribe reasonable compensations, terms and conditions for the joint use. (2) When a public utility that has entered into a pole attachment contract with a cable television company that has been granted a franchise by a public authority that includes the right to use the wires, conduits, cables, or poles of the public utility, is granted a right-of-way easement, the cable television company has the right to share in and enjoy the right-of-way easement and the easement is apportionable to the cable television company if (a) consent is secured from the private property owner, except this requirement shall not apply in the case of a dedicated public utility strip; (b) the Public Service Commission determines that under the terms and conditions of the pole attachment contract the use of the utilities facilities by the cable television company will not interfere with the primary utility function or render its facilities unsafe, and that the contract is in the public interest; (c) the right-of-way easement is not restricted to the sole use of the public utility; provided that such restriction shall not apply in any easement granted for the use of a dedicated public utility strip; (d) the use contemplated by the cable television company is the same or similar to that granted the public utility and that such use will not impose an additional burden upon the servient tenement; (e) the use of the easement by the cable television company will not cause irreparable injury or damage to the grantor’s property.





§ 4.11 Use Of Appurtenant Easement Or Profit To Serve Property Other Than Dominant Estate

Unless the terms of the servitude determined under § 4.1 provide otherwise, an appurtenant easement or profit may not be used for the benefit of property other than the dominant estate.

Cross-References:

Section 1.2, Easement and Profit Defined; § 1.5, “Appurtenant,” “In Gross,” and “Personal” Defined; § 4.8, Location, Relocation, and Dimensions of a Servitude; § 4.9, Servient Owner’s Right to Use Estate Burdened by a Servitude; § 4.10, Use Rights Conferred by a Servitude; § 4.12, Rights of Holders of Separate Servitudes in Same Property; § 4.13, Duties of Repair and Maintenance; § 8.3, Availability and Selection of Remedies for Enforcement of Servitudes.

Comment:

a. Application. The rules stated in this section apply only as an aid to determining the intent or expectations of the parties under the rules stated in § 4.1, and to supply terms omitted by the parties in creating a servitude. Subject to the limits stated in Chapter 3, Validity of Servitude Arrangements, the parties are free to determine the extent of the use rights conferred on the beneficiary of a servitude. If their intent to do so is ascertained, it should be given effect.

b. Appurtenant easement cannot be used to serve nondominant estate. Under the rule stated in this section, unless otherwise providedan appurtenant easement cannot be used to serve property other than the dominant estate. The rationale is that use to serve other property is not within the intended purpose of the servitude. This rule reflects the likely intent of the parties by setting an outer limit on the potential increase in use of an easement brought about by normal development of the dominant estate, permitted under the rules stated in § 4.10. Where it applies, the rule avoids otherwise difficult litigation over the question whether increased use unreasonably increases the burden on the servient estate.

Two questions must be addressed in determining how the rule stated in this section applies to a particular situation. First, it must be determined whether the easement or profit is appurtenant or in gross. The rule stated in this section applies only to an appurtenant benefit since benefits that are in gross are, by definition, useable without regard to the beneficiary’s ownership or occupancy of any particular parcel of land. (See § 4.5 for the guidelines to be applied in determining whether an easement or profit is appurtenant or in gross.) If the easement or profit is appurtenant, the identity of the dominant estate must then be determined. Ordinarily the identity of the benefited property is obvious from the circumstances, but questions may arise if the contention is made that the servitude was intended to benefit property owned by a third party, or property to be acquired in the future. Under the rule stated in § 2.5, a servitude can be created to benefit any land, but if the intent to benefit land owned by another, or land to be acquired in the future, is not clearly apparent, the usual presumption, embodied in the rule stated in this section, is that the dominant estate is limited to land owned by the grantee at the time the easement or profit is created.

Unless the easement or profit was intended to benefit land to be acquired in the future, the easement beneficiary is not entitled to use it to serve land that is subsequently acquired even if no additional use of the easement or burden on the servient estate would ensue. In exceptional situations, however, courts occasionally permit a landowner to extend use of an appurtenant easement to property adjacent to the dominant estate by awarding the servient owner damages, rather than an injunction, for the unauthorized use, using the court’s power to select a remedy appropriate to the circumstances (see § 8.3). Ordinarily monetary relief should be substituted for coercive relief only if extension of the easement does not increase the burden on the servient estate, and if future use of the easement is restricted to limit the risk of future increases in the burden on the servient estate.

Illustrations:

1. Hotel Corporation, the owner of a five-acre parcel on which it operated a hotel, purchased a lot in Greenacres, the adjacent subdivision. An easement appurtenant to the Greenacres lot granted rights to use the Greenacres community beach and recreational facilities. In the absence of other facts or circumstances, Hotel Corporation is not entitled to use the Greenacres beach or recreational facilities for the benefit of its hotel operation.

2. Able assembled a parcel of land from Whiteacre and Brownacre, two adjoining parcels acquired from two different sellers. Whiteacre included the benefit of an appurtenant access easement over Blackacre, the adjacent property to the south. Able then built a house straddling the old boundary between Whiteacre and Brownacre. In the absence of other facts or circumstances, Able is not entitled to use the easement for access to that part of the house located on Brownacre. However, monetary relief may be awarded instead of injunctive relief for violation of the easement under § 8.3, subject to conditions designed to prevent an increase in the burden on the servient estate beyond that permissible if the easement served Whiteacre alone.

3. Same facts as Illustration 2 except that Able purchased Brownacre from O, the owner of Blackacre, who knew that Able intended to use it in conjunction with Whiteacre and the easement across Blackacre. In the absence of other facts or circumstances, Able is entitled to use the easement because an additional servitude has been created by estoppel under § 2.10 to serve the combined parcel.

REPORTER’S NOTE

This section states the traditional rule. See Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land § 7.05[2], Use for Nondominant Land (1988).

Application, Comment a. The intent of the parties controls, and they may agree that the benefit of an easement can be extended to additional land if intended by the parties:

George v. Goshgarian, 139 Cal.App.3d 856, 189 Cal.Rptr. 94 (1983) (easement granted to power company to permit location of power lines in a different location from utility easement shown on recorded plat to protect views of river intended to benefit lots in subdivision as well as power company).

Abington Ltd. Partnership v. Heublein, 717 A.2d 1232 (Conn.1998) (whether after-acquired property is included in dominant estate is a question of the intent of the parties when the easement was created; to determine intent, court may take into account the proposed use and likely development of the dominant estate).

Kiser v. Warner Robins Air Park Estates, Inc., 237 Ga. 385, 228 S.E.2d 795 (1976) (easement for access intended to benefit contiguous parcels already owned by grantee in addition to property conveyed along with easement; purpose of acquiring the easement would be frustrated if it benefited only the property conveyed).

General Am. Realty Co. v. Greene, 107 Ill.App.3d 1011, 438 N.E.2d 540 (1982) (easements for utility purposes benefited other property in industrial park and interference by servient owner could be enjoined despite releases by utility companies).

Maxwell v. Hahn, 508 N.E.2d 555 (Ind.Ct.App.1987) (language in plat of Second Addition that the area between the lots and the lake “is common ground for the use of the owners of these lots or future lots that may be laid out west of this addition” created joint ownership of common ground and easements in owners of lots in both Second Addition and later platted Third Additions).

Pion v. Dwight, 11 Mass.App.Ct. 406, 417 N.E.2d 20 (1981) (in absence of specification in deed that reserved easement benefited only particular parcel of grantor’s remaining land, easement would be interpreted as reserved for the benefit of all parcels of grantor’s land that were adjacent to any part of the right of way).

Harrod v. Rigelhaupt, 1 Mass.App.Ct. 376, 298 N.E.2d 872 (1973) (height restrictions were imposed for the benefit of other lots in the tract, not to benefit the grantor personally, as grantor did not own a home in the tract).

Lakeside Assocs. v. Toski Sands, 131 Mich.App. 292, 346 N.W.2d 92 (1983) (easement 500 feet long and 66 feet wide benefited the two parcels owned by grantees, which together were 500 feet long, even though grantor believed the 500

feet was included in a single parcel, and a subsequent purchaser of servient estate erroneously concluded that the grantee of the easement had owned only 1 200-foot lot at the time of the grant).

Schneider v. Forsythe Group, Inc., 782 S.W.2d 139 (Mo.Ct.App.1989) (language permitted grant of easements over road through Plat I to Plats II and III on condition that terms of declaration pertaining to road maintenance and operation be accepted).

Leffingwell Ranch, Inc. v. Cieri, 916 P.2d 751 (Mont.1996) (easement cannot be used to access later, acquired property even though it is contiguous; extension to nondominant land would constitute unreasonable increase in burden on servient estate).

Lovin v. Crisp, 36 N.C.App. 185, 243 S.E.2d 406 (1978) (conveyance of parcel together with rights to a spring located on “the lands” of the grantors to “run with the lands” of the grantees was intended to benefit only the parcel simultaneously conveyed to grantees; deed will be interpreted to effect a rational purpose and to avoid an unjust result; easement to benefit any land that grantee might acquire anywhere at any time would be void because too indeterminate).

Commercial Fin. Corp. v. Langston, 24 N.C.App. 706, 212 S.E.2d 176 (1975), cert. denied, 287 N.C. 258, 214 S.E.2d 429 (1975) (lots in both subdivisions shown on plat are intended beneficiaries of all road easements shown even though different owners created the subdivisions).

Parker v. Marshall, 284 Or. 745, 588 P.2d 40 (1978) (easement appurtenant only to land simultaneously conveyed to grantee; grantee did not prove that grantee then owned adjacent parcel or that grantor intended easement to benefit adjacent parcel).

Manish v. Potvin, 472 A.2d 1220 (R.I.1984) (remanded for evidentiary hearing on question whether there was unity of title between the 2 tracts claimed to be successors to the benefit of an appurtenant easement at the time of the grant; an easement can become legally attached to the dominant estate only if the same person or persons have unity of title to both the way and the dominant estate).

Walton v. Holland, 238 Va. 687, 385 S.E.2d 609 (1989) (conveyance of Parcel A, shown on subdivision plat map, together with an easement from Parcel A over subdivision roads to public highway, as shown on plat map attached to deed, was intended to benefit only Parcel A, not other adjacent property acquired by grantee from other sources and not shown on plat map). McCreery v. Chesapeake Corp., 220 Va. 227, 257 S.E.2d 828 (1979) (easement reserved by grantor for use of a road as an outlet “from his property” to the county road intended to benefit property owned by grantor at time of grant rather than property previously granted to another). Seventeen, Inc. v. Pilot Life Ins. Co., 215 Va. 74, 205 S.E.2d 648 (1974) (drainage easement acquired by state for drainage systems necessitated by reason of the location, construction, and maintenance of the highway was not intended to benefit property lying north of highway by accommodating additional drainage from development of new shopping center). Appurtenant easement cannot be used to serve nondominant estate, Comment b. The rule stated in this section is widely supported by modern authority: Smith v. Combs, 554 S.W.2d 412 (Ky.Ct.App.1977) (extending use of roadway easement to land not part of original tract constitutes an unreasonable burden; whether extension to additional lots carved out of original tract is an unreasonable burden is a question of fact). Juban Properties, Inc. v. Claitor, 354 So.2d 672 (La.Ct.App.1977) (driveway and parking easements created by reciprocal agreement among owners of Lots 1, 2, and 3 for shopping center could not be used in conjunction with Lot 4 later acquired by owner of Lot 1; owner of Lot 3 entitled to construct fence along boundary between Lots 3 and 4). Boudreau v. Coleman, 29 Mass.App.Ct. 621, 564 N.E.2d 1 (1990) (trial court’s finding that parties did not intend to create easements over private lanes in subdivision in favor of grantor’s remaining land upheld; easements created to benefit one parcel of grantor’s land could not be used for access to additional land). Soergel v. Preston, 141 Mich.App. 585, 367 N.W.2d 366 (1985) (servient owner granted injunction against use of sewer easement for dominant owner’s house located on parcel adjacent to dominant parcel even though dominant parcel was not improved). Cheatham v. Melton, 593 S.W.2d 900 (Mo.Ct.App.1980) (benefit of prescriptive easement for use of common drive could not be extended to property not owned by adverse user during prescriptive period). Weis v. Miller, 805 S.W.2d 683 (Mo.Ct.App.1990) (subdivision plat stating that roads are “reserved as private streets for the exclusive use and benefit of the owners of lots in this subdivision” excluded successors to other land of developer from use of private roads shown on plat, including that portion of roads extending from subdivision across other land of the developer to a public street). Van Laak v. Malone, 92 A.D.2d 964, 460 N.Y.S.2d 654 (1983) (easement holder not entitled to injunction against relocation of easement to easement acquired by servient-estate owner over adjacent property where easement acquired by servient

owner was intended to create rights servient owner could extend to additional properties). Mancini v. Bard, 42 N.Y.2d 28, 364 N.E.2d 1313, 396 N.Y.S.2d 621 (1977) (easement for use of private road could not be used to serve additional contiguous property acquired later by dominant owner). Zeh v. Karker, 43 A.D.2d 881, 351 N.Y.S.2d 478 (1974) (right of way appurtenant to 4 lots in development could not be used to benefit additional land acquired by dominant owner). Lovin v. Crisp, 36 N.C.App. 185, 243 S.E.2d 406 (N.C.Ct.App.1978) (benefit of water rights from spring was appurtenant to land conveyed simultaneously with easement and could not be extended to additional lands of grantee). Markley v. Lopresti, 280 Pa.Super. 484, 421 A.2d 825 (1980) (easement appurtenant to 1 parcel could not be used for access to additional land). Mathues v. Providence Friends School, Inc., 262 Pa.Super. 184, 396 A.2d 707 (Pa.Super.Ct.1978) (easement to use driveway abutting high school for access to public street could not be used for direct access to meeting house across the driveway since easement was appurtenant to high-school property only; students required to walk out to public street, then to meeting house). McCammon v. Meredith, 830 S.W.2d 577 (Tenn.Ct.App.1991) (easement holder cannot materially increase burden on servient estate or impose new and additional burden; use to access later-acquired tract is not permitted because it materially increases the burden). Storms v. Tuck, 579 S.W.2d 447 (Tex.1979) (easement created to benefit 10-acre parcel could not be used to benefit 1100-acre tract acquired by successor to .76-acre strip of dominant estate). Jordan v. Rash, 745 S.W.2d 549 (Tex.Ct.App.1988) (easement appurtenant to one tract could not be used to benefit another tract even though second tract was acquired from same grantors). Robertson v. Robertson, 214 Va. 76, 197 S.E.2d 183 (1973) (easement implied from grant of property by reference to a road boundary cannot be used for access to property acquired from different grantor). Lyons v. Lyons, 179 W.Va. 712, 371 S.E.2d 640 (Ct.App.1988) (easement for access to 6.5-acre tract cannot be used for access to separately acquired 40-acre tract, but case remanded to determine whether easement by prescription had been acquired by use of easement to serve the 40-acre tract for the prescriptive period). A few recent cases may indicate a shift from the rule stated in this section, which essentially creates a presumption that after-acquired property was not intended to benefit from the easement, to one that is neutral where no material increase in use of the easement will result. Sometimes, this result is reached where the court recognizes a breach of the easement, but refuses to enjoin use of an appurtenant easement for property adjacent to the dominant estate: The Connecticut Supreme Court has rejected a bright-line rule that permitting adjacent after-acquired property to benefit from an easement of access automatically constitutes an overburden or misuse of the easement in favor an inquiry into the intent of the parties. If the proposed use and likely development of the dominant estate includes the acquisition of additional property that would be served by the easement, use of the easement to serve the expanded dominant estate does not exceed the scope of the easement so long as the result is not a material increase in the burden on the servient estate beyond that contemplated by the parties. Abington Ltd. Partnership v. Heublein, 717 A.2d 1232 (Conn.1998). Carbone v. Vigliotti, 610 A.2d 565 (Conn.1992) (driveway easement appurtenant to lot 4 can be used to serve house built on lots 2, 3, and 4; addition of parcels 2 and 3 to lot 4 to form a single building lot has not changed character or extent of the proposed use of the easement; where no significant change has occurred in use of the easement from that contemplated at time of creation, mere addition of other land to the dominant estate does not constitute overburden or misuse of easement). The court in Carbone distinguished Lichteig v. Churinetz, 9 Conn.App. 406, 519 A.2d 99 (1986) (appurtenant easement can be used to serve dominant estate only), on the ground that that case involved a material increase in vehicular traffic resulting from addition of other land. Ogle v. Trotter, 495 S.W.2d 558 (Tenn.Ct.App.1973) (purpose of rule prohibiting extension of benefit of appurtenant easement to additional land is to avoid increase or change in burden on servient estate; easement holder who reduced burden on easement by eliminating access from 2 rental houses located on appurtenant land would not be enjoined from using easement to serve his residence located on an adjacent parcel so long as he continued to own the dominant parcel). Brown v. Voss, 105 Wash.2d 366, 715 P.2d 514 (1986) (trial court did not abuse its discretion in refusing to enjoin use of easement to serve parcel contiguous to dominant parcel where single residence straddled the 2 parcels, use is restricted to period in which the 2 parcels are used for 1 single-family residence, and owner of servient estate stood by while owner of dominant estate spent $11,000).




Chapter 7. Modification And Termination Of Servitudes

§ 7.10 Modification And Termination Of A Servitude Because Of Changed Conditions

(1) When a change has taken place since the creation of a servitude that makes it impossible as a practical matter to accomplish the purpose for which the servitude was created, a court may modify the servitude to permit the purpose to be accomplished. If modification is not practicable, or would not be effective, a court may terminate the servitude. Compensation for resulting harm to the beneficiaries may be awarded as a condition of modifying or terminating the servitude.

(2) If the purpose of a servitude can be accomplished, but because of changed conditions the servient estate is no longer suitable for uses permitted by the servitude, a court may modify the servitude to permit other uses under conditions designed to preserve the benefits of the original servitude.

(3) The rules stated in § 7.11 govern modification or termination of conservation servitudes held by public bodies and conservation organizations, which are not subject to this section.

Cross-References:

Section 7.4, Modification or Extinguishment by Abandonment; § 8.3, Availability and Selection of Remedies for Enforcement of a Servitude; § 7.11, Modification and Termination of a Conservation Servitude Because of Changed Conditions; Restatement Second, Contracts, Frustration of Purpose.

Comment:

a. Rationale. The potentially unlimited duration of servitudes creates substantial risks that, absent mechanisms for nonconsensual modification and termination, obsolete servitudes will interfere with desirable uses of land. Traditional servitudes doctrine includes two doctrines that permit courts to terminate servitudes that no longer serve the purpose for which they were intended: the changed-conditions doctrine applicable to covenants, and the frustration-of-purpose doctrine applicable to easements. Although either label would serve the purpose, changed conditions is used in this Restatement. The rule stated in this section applies to easements as well as covenants and other types of servitudes. Rather than imposing a fixed time limit on servitude duration, it permits a party seeking relief from a servitude to seek court intervention at the point of need.

Because servitudes create property interests that are generally valuable, courts apply the changed-conditions doctrine with caution. Of the many changed-conditions cases that have produced appellate decisions, few result in modification or termination of a servitude. The test is stringent: relief is granted only if the purpose of the servitude can no longer be accomplished. When servitudes are terminated under this rule, it is ordinarily clear that the continuance of the servitude would serve no useful purpose and would create unnecessary harm to the owner of the servient estate.

The changed-conditions rule has traditionally been used to terminate servitudes, rather than to modify them, but the less drastic step should be taken if modification would permit the servitude to continue to serve the purpose for which it was designed to an extent that is worthwhile. Modification is appropriate, however, only if it does not materially increase the burden on the servient estate. If modification is not appropriate, the servitude may be terminated. When a servitude is modified or terminated under this section, a court may award compensation to the beneficiaries for damages they will suffer as a result of the modification or termination.

The changed-conditions doctrine may be grounded in implied intent of the parties and public policy. If the parties who

created the servitude considered the matter at all, they probably understood that circumstances might change in such a way that the servitude would lose its utility. Rather than try to anticipate changes that might take place and incur the expense of providing alternative servitudes or establishing a mechanism to deal with future changes, they left the matter open, anticipating that the law would extricate their successors from intractable problems that might arise in the future. The argument from public policy is that permitting the enforcement of servitudes after they have lost their utility reduces land values and turns the law into an instrument of extortion. Unless modification or termination is permitted, the servitude beneficiary can exact an unreasonably high price for release of an encumbrance that otherwise has no value and interferes with the ability of the servient owner to use his or her property.

In determining whether judicial intervention to modify or terminate a servitude is warranted, a court should consider whether there are serious obstacles to bargaining among the affected parties. Where transaction costs are likely to be high because large numbers of people are involved, or for other reasons, a court should be more ready to intervene than where transaction costs are likely to be low. If the servitudes provide a means for modification or termination by agreement of less than 100 percent of the servitude beneficiaries, a court should rarely intervene, except under circumstances authorized for common-interest communities under § 6.10 or § 6.12.

b. Relation to waiver, abandonment, and relative-hardship doctrines. Changed-conditions cases are often closely associated with waiver, but the two doctrines are distinct. Waiver arises when a servitude beneficiary has acquiesced in one or more breaches of a servitude obligation. When that same beneficiary later seeks to enforce the servitude with respect to a similar breach by a different person who is subject to a similar servitude obligation, or later seeks to enforce the same servitude against a new or different violation by the same person, waiver is raised as a defense to enforcement of the servitude against the later breach. If waiver is found, it affects the availability and selection of remedy under § 8.3, but does not result in extinguishment of the servitude benefit unless the beneficiary has abandoned it under § 7.4, or is estopped to claim that it continues to exist under § 7.6. Even though waiver precludes enforcement against some violations, the beneficiary retains the right to enforce it against violations that were not included in the scope of the waiver.

Extensive waiver of servitude violations may lead either to the conclusion that the servitude has been abandoned, and terminated under § 7.4, or to a situation in which further enforcement of the servitude will no longer serve the purpose for which it was created and the servitude may be modified or terminated because of changed conditions.

The changed-conditions doctrine is also closely related to abandonment. If a servitude has lost its utility, the beneficiary may well abandon it. However, changed conditions, unlike abandonment, does not require a finding that the beneficiary intended to relinquish the rights created by the servitude. The changed-conditions rule is used where, even though a servitude no longer serves its intended purpose, the beneficiary does not intend to abandon it.

The changed-conditions rule is also distinct from the doctrine of relative hardships which does not lead to termination of a servitude, but may affect the availability and selection or remedies for enforcement under § 8.3. Comment h to that section discusses the impact that the costs and benefits of enforcement by various means may have on the selection of remedy.

The costs of enforcement are relevant in changed-conditions cases only if the servient estate is no longer useable for any purpose permitted by the servitude. In that case, this section permits modification under conditions designed to preserve the benefits of the original servitude. If the benefits cannot be preserved by appropriate conditions, the servitude should be enforced without regard to the cost to the burdened party. If use of the servient estate can still be made within the confines of the servitude and the purpose of the servitude can still be accomplished, there are no grounds for judicial modification or termination of the servitude under this section.

c. Test and application. The test for finding changed conditions sufficient to warrant termination of reciprocal-subdivision servitudes is often said to be whether there has been such a radical change in conditions since creation of the servitudes that perpetuation of the servitude would be of no substantial benefit to the dominant estate. However, the test is not whether the servitude retains value, but whether it can continue to serve the purposes for which it was created. Increases in the cost of compliance to the servient estate are irrelevant except in the rare situations where the servient estate is no longer suitable for any use permitted by the servitude. The test is a stringent one, and few cases that have reached the appellate level have resulted in termination of servitudes.

Many changed-conditions cases arise in general-plan developments. In those cases, the location of the changes is often relevant in determining whether the changed-conditions doctrine will be applied. Changes within an area covered by reciprocal servitudes generally are more significant than changes that take place outside the restricted area, although changes outside may also provide grounds for termination. If the changes include uses that violate the servitudes, the fact that they have taken place within the restricted area provides evidence that the servitudes have lost their value to the

beneficiaries. If not, they would have challenged the violations. Changes outside the restricted area have no similar significance, however, because the servitude beneficiaries lack standing to challenge them. If the changes lead to a situation where enforcement would produce no substantial benefit to the dominant estates, however, termination is warranted regardless of the location or source of the changes.

Illustrations:

1. Green Acres is a small 10-lot subdivision subject to covenants restricting use to single-family dwellings. Lots 1 through 8 are condemned for construction of a state highway. The remaining two lots abut the new highway. The noise and traffic make the lots unsuitable for residential purposes. The owner of Lot 9 wants to convert it to commercial use; the owner of Lot 10 resists. Because the purpose of maintaining a single-family neighborhood can no longer be accomplished, the court would be justified in terminating the servitude on the basis of changed conditions. If the owner who resists will suffer damages as a result of the termination, termination may be conditioned on the payment of damages. 2. Same facts as Illustration 1, with the added fact that the property condemned included a commonly owned recreational facility maintained by the association of Green Acres lot owners. A covenant obligated the owners to pay assessments to the association for maintenance of the common property. Because the purpose of paying the assessments can no longer be accomplished, the covenant should be terminated. 3. Same facts as Illustration 1, except that Green Acres is a large subdivision of 500 lots and the lots taken lie along one edge of the subdivision. The lots abutting the new highway are no longer suitable for single-family residential use, but the balance of the subdivision remains intact. Because enforcement of the restrictions will protect the single-family residential character of the balance of the subdivision, a court would not be justified in terminating the restrictions as to the remaining lots. Modification of the restrictions on the buffer lots to permit multifamily use or limited commercial uses within single-family structures might be appropriate, under conditions designed to maximize their utility as a buffer and minimize the impact of the use changes on the interior lots. If Greenacres is a common-interest community, the court should intervene only under the circumstances set forth in Chapter 6. 4. Blackacre is subject to an easement for railroad right of way created in 1890. The right of way gave access to the railroad’s maintenance yard. Recently, the railroad closed the maintenance yard, removed the tracks on the right of way (which leads to a public road), and sold the property. Before the sale, the railroad approached O, the owner of Blackacre, and the other owners of property subject to the easement, offering to release the easement for a price. Several of the owners accepted the offer, but the price demanded by the railroad was higher than O was willing to pay. The new owner of the old maintenance yard has constructed a manufacturing facility and now claims the right to build a road on the old right of way for truck access to the parcel. If the easement is interpreted under § 4.10 as limited to use by trains, termination of the easement would be justified because its purpose can no longer be accomplished.

d. Conservation servitudes. Conservation servitudes held by public bodies and conservation organizations are not subject to modification or termination under this section. They are covered by § 7.11. Conservation servitudes held by others, however, are subject to this section. The difference between those covered in § 7.11 and other conservation servitudes lies in the strength of the public interest involved. Section 7.11 is designed to cover servitudes in which there is likely to be a strong public interest because of the public investment and subsidies involved. If there is also a strong public interest in continuing a private conservation servitude covered under this section, it would be appropriate to apply the rules of § 7.11 rather than the rules of this section.

REPORTER’S NOTE

The rules stated in this section are generally accepted in so far as they provide for termination of covenants when the purpose of the covenants can no longer be secured by their enforcement. The first Restatement of Property took the position in § 564 that changed conditions affected the remedy only, and did not terminate the servitude. That view, however, has since been criticized and is rejected here. See Gerald Korngold, Private Land Use Arrangements § 11.07, Changed Conditions at n.137 (1990). Traditional doctrine terminates obsolete easements either by a liberal application of the abandonment principle, or by finding that the purpose of the easement has become impossible to accomplish, or that the easement no longer serves its intended purpose, rather than by the changed-conditions doctrine. Similar results should be reached under either formulation of the concept. See Gerald Korngold, Private Land Use Arrangements § 6.03 (1990); Alison Dunham, Preservation of Open Space Areas: A Study of the Non-Governmental Role (1966) at p. 20; Cunningham, Scenic Easements in the Highway Beautification Program, 45 Den. L. J. 168, 263 (1968); Uriel Reichman, Toward a Unified Concept of Servitudes, 55 So. Cal. L. Rev. 1177, 1258-59 (1982). See also Gerald Korngold, Privately Held Conservation Servitudes: A Policy Analysis in the Context of in Gross Real Covenants and Easements, 63 Tex. L. Rev. 433, 437 (1984). The importance of the changed-conditions doctrine to maintaining the long-run health of the economy is discussed in Michael A. Heller, The Boundaries of Private Property, 108 Yale L.J. 1163 (1999). Rationale, Comment a. The origins of the changed-conditions doctrine are not completely clear. It appears closely related to

the frustration of purpose and impossibility doctrines of contract law as well as to the equitable relative-hardship doctrine. See French, Toward a Modern Law of Servitudes: Reweaving the Ancient Strands, 55 So. Cal. L. Rev. 1261, 1280 n.105 (1982). The contract doctrines are explained in Dan B. Dobbs, Law of Remedies (2d abbr. ed. 1993) § 13.3(1) at 869: “In general, the substantive law of contract excuses performance or discharges the obligations of a contract when performance would require the promisor to bear a risk not allocated to him by the contract. For example, supervening events may make performance of the contract literally impossible or substantially impractical. Or post-contracting events may frustrate the contract’s purposes, leaving performance possible and practical but eliminating the benefits contemplated by the parties. If the parties bargained in contemplation of possible and practical performance, and supervening events make it impossible or impractical, then the obligation is discharged because it is not one the parties undertook to deal with.” The changed-conditions doctrine is closely related to the relative-hardship doctrine, which is seldom applied in cases involving enforcement of servitudes, unless there is also an additional factor such as acquiescence, laches, or change in circumstances involved. The changed-conditions doctrine has sparked debate among academics. It has been criticized on the ground that it permits undue interference with property rights. See Robert Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Control, 40 U. Chi. L. Rev. 681, 716-17 (1973); Carol M. Rose (below). Richard Epstein, Notice and Freedom of Contract in the Law of Servitudes, 55 So. Cal. L. Rev. 1353, 1358 (1982), opposes judicial modification or termination of servitudes because of changed conditions, or because the servitude has become wasteful, obsolete, or unreasonable, and suggests that the state intervene through the use of eminent domain instead, if there is a public use to be obtained. Uriel Reichman praises the doctrine for introducing a necessary element of flexibility as well as the means to control servitudes that would otherwise result in inefficient land use. He encourages courts to consider the alternative of modification, with or without compensation, where it would be more appropriate than termination. But he cautions that care must be taken in granting modification or termination remedies because deviations from the specific-performance rule reduce reliance on servitudes in the long run and may frustrate the expectations of the party who purchased the servitude benefit. Uriel Reichman, Toward a Unified Concept of Servitudes, 55 So. Cal. L. Rev. 1177, 1259 (1982). A cautionary note is also sounded by Carol M. Rose, Servitudes, Security, and Assent: Some Comments on Professors French and Reichman, 55 So. Cal. L. Rev. 1403, 1404 (1982): ... we might well be wary, as the older courts were, about a reform doctrine that too easily relaxes servitude obligations when we cannot infer assent of the beneficiaries. [Id. at 1405.] * * * ... As with the older concern for notice, judicial treatment of “changed circumstances” demonstrates a special concern for the parties’ acceptance of the situation--but here in the weaker form of their passive acceptance of the extinguishment of the servitude. If the neighbors in a residentially-restricted subdivision allow a change by failing to object when one of the fellow owners builds a warehouse, then that “change of circumstance” may be used as a way of saying that they acquiesced in the relaxation of the restriction. They could have objected and did not, and thus signaled that they did not care very much if the servitude was relaxed. As some earlier judges realized, however a quite different situation is presented when the change occurs outside the covenanted area.... The courts have been slower to grant relief on this basis, since the neighbors never had a claim against the outside changes, and their inaction cannot be construed as acquiescence to a change within the restricted area. [Id. at 1410-11.] Rose reminds us the holdout is not necessarily a rascal, and that the right to hold out is an important aspect of property ownership, normally relaxed only through an eminent domain proceeding. “If we are to take servitudes seriously as property rights then the neighbors’ holdout is perfectly legitimate.” Id. at 1412. More important, “The prospect of shifting legal interpretations of ‘usefulness’ introduces an uncertainty into servitude transactions, such that the parties might be discouraged from the very land development that servitudes are intended to secure.” Id. at 1413. Courts generally agree on the purpose of the changed-conditions doctrine: AC Assoc. v. First Nat’l Bank of Florida, 453 So.2d 1121 (Fla.Dist.Ct.App.1984) (“... the issue is not what the parties would do today, but rather whether the ... restrictions remain substantially capable of serving purposes intended when the restrictions were imposed.”). Cortese v. United States, 782 F.2d 845 (9th Cir.1986) (doctrine of changed conditions operates to prevent the perpetuation of inequitable and oppressive restrictions on land use and development that would merely harass or injure one party without benefiting the other). Orange & Rockland Utilities, Inc. v. Philwold Estates, Inc., 418 N.E.2d 1310 (N.Y.1981) (1958 Report of Law Revision Commission took position that public interest in marketability and full utilization of land required that there be available to owners of parcels burdened with outmoded restrictions an economical and efficient means of getting rid of them). Application, Comment c.

The Test

Cortese v. United States, 782 F.2d 845 (9th Cir.1986) (changed conditions is equitable doctrine that stays enforcement of unreasonably burdensome restrictions on land use, notwithstanding an agreement between the parties specifying the intended

duration of the restrictions; court remands for determination whether changed conditions applies; trial court erroneously declared restrictions an interest in land under federal law not subject to changed-conditions doctrine). Owens v. Camfield, 614 S.W.2d 698 (Ark.Ct.App.1981) (deed restrictions may be cancelled if the conditions surrounding the property have so changed (1) as to utterly destroy its value for the purpose for which the restriction was promulgated to prevent, and (2) that this change of conditions is due to no fault on the part of the petitioner and (3) will work no irreparable injury to others). South Shore Homes Ass’n, Inc. v. Holland Holiday’s, 219 Kan. 744, 549 P.2d 1035 (1976) (covenants concerning use of real estate will be enforced by equity only so long as they remain reasonable in the light of their purpose, taking into account changes in relevant conditions since the time they were made; where there has been change in the conditions and character of the neighborhood to such an extent as to neutralize the benefits of a restrictive covenant and destroy its purpose, a court of equity is justified in refusing to enforce the restriction; extent of change that will justify refusal has not given rise to any hard-and-fast rule; a basic principle woven through all the decisions is that to warrant refusal of equitable relief, the change in conditions must be so great or radical as to neutralize the benefits of the restriction and destroy its purpose). Chevy Chase Village v. Jaggers, 275 A.2d 167 (Md.Ct.App.1971) (covenants may be unenforceable where there has been deterioration in the residential character of the neighborhood or a failure from the beginning of the restricted development so that the restrictions no longer serve their intended purpose; “change so radical as to render perpetuation of the restriction of no substantial benefit to the dominant estate, and to defeat the object or purpose of the restriction”). Hening v. Maynard, 313 S.E.2d 379 (Va.1984) (proof of changed conditions so radical as practically to destroy the essential objects and purposes of covenants is necessary to justify termination). Morris v. Nease, 238 S.E.2d 844 (W.Va.1977) (even substantial changes in the area will not justify refusal to enforce restrictions so long as benefits of original plan can still be realized for protection of interior lots).

Applications of Rule

Easements

Scruby v. Vintage Grapevine Inc., 37 Cal.App.4th 697, 43 Cal.Rptr.2d 810 (1995) (52-foot-wide easement for road and utility purposes created to serve planned subdivision which did not did not materialize, modified to limit easement to width needed; 52-foot easement was much larger than needed for access to single parcel; servient owner had the right to use easement area for other uses so long as reasonable access remained for dominant estate). Brown v. McDavid, 676 P.2d 714 (Colo.Ct.App.1983) (successor developer extinguished 60-foot easements pursuant to power retained in governing documents, but court remanded for determination whether landlocked parcels acquired easements by implication or necessity on termination; since no common-law right to an easement by implication or necessity would arise in that situation, the court may have, in effect, permitted modification of the 60-foot easements no longer needed for the failed development). AC Assoc. v. First Nat’l Bank, 453 So.2d 1121 (Fla.Dist.Ct.App.1984) (parking agreement restrictions cannot be modified or cancelled whether labeled as easements or restrictions; a court should not undertake to reshape the contractual rights and obligations of the parties; regardless of reasonableness of modifications ordered by trial court, the precedent that would be set by judicial involvement in basically private contractual process would be inappropriate; in any event changes required are brought about by servient owner’s desire to change use from department store to office-retail-hotel use, not to changes in the neighborhood; 3-to-1 ratio of parking lot to total floor space remains in effect; decision limiting parking that must be provided on servient estate to 100 spaces reversed (complying with ratio would require 20 6-story structures for office/hotel building contemplated. Court also rejected idea that conditions had changed sufficiently. Argument was that when the reciprocal parking agreement was executed in 1959, the neighborhood was residential and is now primarily commercial; that urban planning and land-use concepts have changed and land costs have increased, so that freestanding department stores are no longer the most profitable uses; industry standards for parking have changed from 10 spaces per 1,000 sq. feet to 4-5.5 spaces, so that agreement has become oppressive and unnecessary burden; relief denied because no proof that the parking no longer benefited the other parcel subject to the agreement. No showing that commercial development was not foreseeable at the time the parking agreement was made. Purpose of the agreement was to protect Gulf parcel from potential overflow of parking from Ward parcel, as well as to provide Gulf parcel with parking on Ward parcel (and vice versa). Even though current tenants do not need the parking, the agreement remains in effect for 30 more years and tenants may change; availability of ample parking for future uses is valuable. Basic purpose of the law is to provide stability and certainty through consistent application of the legal principles; substantial uncertainty for property owners as to rights and obligations would result if courts at the instance of a property owner over the objection of adjacent owners could modify or cancel a commercial (or residential) property restriction on the basis that it is unreasonable by reason of a different type of commercial or residential use planned by the suing owner. Particularly so where uses of adjacent property have not changed. Ward failed to meet burden of showing that material change has destroyed all substantial benefit of the restriction and has defeated under present or future circumstances the purpose of restrictions under the reciprocal-parking agreement)). Scott v. Long Valley Farm Kentucky, Inc., 804 S.W.2d 15 (Ky.Ct.App.1991) (easement appurtenant to natural springs could

not be extinguished on the grounds that maintaining water-supply system was costly to the burdened estate, that dominant estate made little or no use of servitude, and that landowners had alternative source of water). Inhabitants of Town of Sabattus v. Bilodeau, 391 A.2d 357 (Me.1978) (servient owner permitted to demolish dam despite town’s easement to draw water for fire-protection system after construction of new reservoir rendered need for dam obsolete). Makepeace Bros. v. Barnstable, 198 N.E. 922 (1935) (easement for operation of “try-yards” for boiling whale blubber to extract oil was extinguished on disappearance of the whaling industry; when an easement is incapable of being exercised for the purpose for which it was created the right is extinguished). G.M. Morris Boat Co., Inc. v. Bishop, 631 S.W.2d 84 (Mo.Ct.App.1982) (statute providing that interest in land “received by railway company by voluntary grant shall be held and used for the purpose of such grant only” has been interpreted to mean interest acquired without valuable consideration is an easement regardless of interest the deed purported to convey and that easement terminates when land no longer used for railroad purposes; railroad’s interest had terminated because deed recited only $1 consideration). Waldrop v. Town of Brevard, 62 S.E.2d 512 (N.C.1950) (plaintiffs are bound by servitude created in grant to another parcel that precludes successors to any of grantor’s remaining land from objecting to use of granted parcel as garbage dump despite authority that the restriction is not in their chain of title; servitude is in the nature of an easement [right to conduct nuisance activity]; fact that original grantor has subdivided and sold burdened parcels and 35 to 40 families now live in the area as opposed to 2 families when the grant was made is irrelevant; changed conditions do not affect a duly recorded easement). Winterringer v. Price, 370 P.2d 918 (Okla.1961) (stairway and party-wall easement acquired by prescription not terminated by changed conditions where evidence failed to show that buildings were dilapidated and not in fact serviceable). Hahn v. Baker Lodge, 21 Or. 30, 27 P. 166 (1891) (destruction of building extinguished easement through building to separately owned room in the building). McCreery v. Chesapeake Corp., 257 S.E.2d 828 (Va.1979) (easement reserved to use road as outlet to the county road terminated when county road was closed by cessation of purpose). American Oil Co. v. Leaman, 101 S.E.2d 540 (Va.1958) (easement leading from plaintiff’s property across Oil Company property to a public highway terminated when highway was closed; after closure, roadway dead-ended inside servient estate; easement terminates when purpose for which it was created can no longer be accomplished).

Covenants

Southwestern Construction Co., Inc. v. Liberto, 385 So.2d 633 (Ala.1980) (sand-excavation operation involving use of heavy trucks and bulldozers conducted up to 12 hours per day violated covenant prohibiting noxious or offensive trade or activities; acquisition of dredging easement by Corps of Engineers over both burdened and benefited properties was not change of conditions that warranted termination of covenant; Corps’ activities took place largely in the Gulf and did not disturb the area other than by adding to its beach). Laney v. Early, 292 So.2d 103 (Ala.1974) (construction of freeway through 32-home subdivision platted in 1925, increase in traffic on highway bounding subdivision on north, and commercial developments near subdivision do not require cancellation of single-family residential-use restrictions on lots north of freeway where evidence shows that subdivision remains entirely residential, houses are above-average quality and well-maintained, and removal of restrictions on some lots would decrease desirability of remaining lots for residential purposes; fact that lots would be more valuable for commercial purposes is given little or no weight; to defeat covenants, change in character of neighborhood must have been so great as to clearly neutralize the benefits to the point of defeating the object and purpose of the covenant; if the original purpose of the covenant can be effectuated, changes outside the restricted area should not be allowed to defeat the purpose; equities favoring a particular lot owner, even if lot no longer suitable for restricted purpose, must be weighed against the equities favoring the lot owners, who having acquired their property on the strength of the restriction, wish to preserve the residential character of the area; fact that a small portion of a restricted district, lying along the edge thereof, is forced to bear the brunt of attack from changed conditions outside the district, with resultant impairment in value does not justify abatement of the restrictions as to the part so affected because of the hardship visited on that particular land as compared with the sheltered portion of the district. Chancellor’s conclusion that lot owner north had not satisfied burden of convincing him restrictions should be removed was not plainly and palpably wrong.). Federoff v. Pioneer Title & Trust Co. of Arizona, 165 Ariz. 249, 798 P.2d 387, rev’d and vacated as to another part, 803 P.2d 104 (1990) (minimum-lot-size covenant was not terminated due to changed conditions where the essence of the change was that increased governmental regulations since the date the covenants were adopted had rendered profitable development of the land impossible; mere change in economic conditions making it unprofitable to comply with covenant is not sufficient to render it unenforceable). Shalimar Ass’n v. D.O.C. Enterprises, Ltd., 688 P.2d 682 (Ariz.Ct.App.1984) (money-losing record of golf course did not entitle burdened party to relief from covenant requiring maintenance as a golf course until 2025 on ground of changed conditions). Owens v. Camfield, 614 S.W.2d 698 (Ark.Ct.App.1981) (property had become engulfed in commercial sprawl, bordered on

three sides by commercial uses and on fourth by highway; rezoning of property for commercial use left it without value as residential lot). Butte County v. Bach, 172 Cal.App.3d 848, 218 Cal.Rptr. 613 (1985), appeal after remand, 263 Cal.Rptr. 565 (1989) (in determining whether there has been such a change of conditions as to warrant a refusal to enforce or a cancellation of restrictions the courts give greater weight to changes occurring within the restricted area than to those outside; if the changes outside the tract render the restricted property wholly valueless, equity may side with the party seeking to lift the restriction despite evidence that enforcement would benefit the other properties in the tract, citing Downs v. Kroeger, 200 Cal. 743, 254 P. 1101 (1927); refusal to lift restrictions on corner lot abutting on enlarged largely commercial street required by need to protect interior lots from commercial encroachment; lot worth $80,000 for residential purposes, $150,000 for commercial purposes). Downs v. Kroeger, 200 Cal. 743, 254 P. 1101 (1927) (intent of parties regarding duration of the covenants does not preclude applicability of the doctrine of changed conditions). Grady v. Schmitz, 16 Conn.App. 292, 547 A.2d 563 (1988), certif. denied, 551 A.2d 755 (Conn.1988) (covenant prohibiting the subdivision of a lot for the purposes of erecting more than one house thereon was not terminated by change in circumstances where the evidence of change was as follows: one lot under the restriction had subdivided and erected two homes on the lot; plaintiffs, owners of another lot subject to the restriction, had rented portions of their home to tenants, creating a “multi-family dwelling”; and the conversion of some houses under the restriction into professional offices). (The court, however, held that the test applicable to defendants’ claim of change in circumstances was not the “radical change” test, but rather whether the circumstances show an abandonment of the original restriction making enforcement inequitable because of the altered condition of the property involved. The court based the use of this less stringent standard on the fact that in actions to enforce the covenant where the change in circumstances is used as a defense, the more relaxed standard applies, and where the action is to modify or nullify the covenant where the change in circumstances is an affirmative claim, the more stringent standard is appropriate.) El Di, Inc. v. Town of Bethany Beach, 477 A.2d 1066 (Del.1984) (change in character of “old” town section so substantial that it would be unreasonable and inequitable to enforce covenant prohibiting sale of alcoholic beverages; changes include change from residential to commercial character, availability of alcohol nearby, practice permitting “brown bag” alcohol in restaurant for 20 years, and zoning changes). Wood v. Dozier, 464 So.2d 1168 (Fla.1985), appeal after remand, 529 So.2d 1236 (Fla.App.1988) (court reaffirmed holding of Allen v. Avondale Company, 135 Fla. 6, 185 So. 137 (1938), that owner of property who seeks relief from enforcement of restrictive covenants shall be denied the relief when he is on notice that all material changes in the neighborhood occurred prior to his purchase; “[w]e find no reason for changing this well established principle of law. Persons who purchase property subject to restrictive covenants cannot expect to have the covenants invalidated simply because the covenants have been previously violated and not enforced against others”; purchaser should seek to have restriction removed before purchasing if he intends to use it for purpose not allowed; restrictive covenants serve a valid public purpose in enabling purchasers of property to control the development and use of property in the surrounding environment. Avondale limits the extent to which they may be invalidated and therefore helps to effectuate the beneficial purposes of such restrictions. Dissent: “There is no basis in logic, reason, or fairness for this mechanical rule....”). Lancaster v. Banks, 492 So.2d 464 (Fla.Dist.Ct.App.1986) (follows Wood v. Dozier; changes in neighborhood prior to lot owner’s purchase do not entitle that owner to relief from restrictions on basis of changed conditions; if restriction is still of substantial value to the dominant lot, equity court will restrain its violation regardless of changed circumstances; change in zoning classification irrelevant). Crissman v. Dedakis, 330 So.2d 103 (Fla.Dist.Ct.App.1976) (changes in close proximity to property claiming changed conditions were such as to justify removal of restrictions from part of property even though changes were outside of subdivision where changes were so radical as to neutralize protection afforded by covenants and removal would not have detrimental effect on other properties within subdivision; unlimited duration of restrictions was a factor in determining that they should be removed as to part of the property). Antill v. Sigman, 241 S.E.2d 254 (Ga.1978) (violation of no-fencing restriction by a few of the property owners does not show such a general change in the neighborhood as to render the covenant void due to changed conditions). McNamee v. Bishop Trust Co., Ltd., 616 P.2d 205 (Haw.1980) (change in conditions must be so great or radical as to neutralize the benefits of the restriction and destroy its purpose; if the benefits of the original restriction can still be realized for the protection of the subdivision’s properties, no sufficient change of conditions will be recognized so as to defeat the restriction; existence of 3 2-story houses in 117-house subdivision did not require change in policy refusing architectural approval for 2-story houses where all 3 were built before covenants were imposed, were located against hillside so did not interfere with views, and purpose of maintaining low-rise peninsula for privacy, aesthetic, and practical reasons had not been destroyed). Sandstrom v. Larsen, 583 P.2d 971 (Haw.1978) (construction of 13-story condominium on land outside subdivision that partly obstructed views from within subdivision did not constitute sufficient changed conditions to neutralize the benefits of the height restriction and destroy its purpose; partial obstruction enhances value of covenant by making remaining view more valuable).

Paquette v. Coble, 653 N.E.2d 1262 (Ill.Ct.App.1995) (prior subdivision of 1 of 4 original lots in subdivision and violations of minimum lot size on 2 of original 4 lots were sufficient changed conditions to render covenant against subdivision and building lot smaller than 2.5 acres in size unenforceable; predecessors’ acquiescence in prior violations results in waiver of enforcement right and estops current lot owners from seeking enforcement). Hanna v. American Nat’l Bank & Trust Co., 266 Ill.App.3d 544, 639 N.E.2d 1326, 203 Ill.Dec. 507 (1994) (relief would not be granted from 50-foot setback established by 1860 plat; inadvertent violations of approximately 6 feet by other owners were not substantial and did not undermine the purposes for which the setback was created; changes on other streets which had become commercial did not reduce desirability of Deming Place as a residential street). City of Rolling Meadows v. National Advertising Co., 228 Ill.App.3d 737, 593 N.E.2d 551, 170 Ill.Dec. 662 (1991) (covenant prohibiting off-premise billboards in industrial park was not terminated due to changed conditions where the evidence of changed character was that a 6-lane highway running through the industrial park was built. The court found that the highway was consistent with the plan for the industrial park and that the benefit and purposes of the restriction--aesthetics and traffic safety--had not been extinguished). Rogers v. City of Jerseyville, 552 N.E.2d 1314 (Ill.Ct.App.1990) (residential restrictions would not be enforced to prevent development of supermarket on 100 undeveloped lots (28 acres) previously platted as part of residential subdivision; restrictions were not enforceable against 1 lot because of long-standing use first for sales office and then attorney’s office; commercial development had taken place in the vicinity; city had targeted this area for centralized commercial growth; if enforced, land would remain in agricultural use due to low demand for residential lots and cost of providing infrastructure for residential development; because of changes, enforcement would be unreasonable or oppressive). Wier v. Isenberg, 420 N.E.2d 790 (Ill.Ct.App.1981) (mere breach of covenant is sufficient grounds to enjoin its violation; covenant beneficiary need not show injury; residential-only covenant will be enforced against combined use for residence and professional psychotherapy practice; argument that community benefits from use and increased density is no greater than other neighborhood activities lacks force in absence of evidence that covenants’ purpose can no longer be accomplished because of changed conditions). Tones Inc. v. LaSalle Nat’l Bank, 34 Ill.App.3d 236, 339 N.E.2d 3 (1975) (residential-or farm-use restrictive covenant placed on lots 8-10 and 12-20 in Block 1 by developer after the rest of Block 1 had been sold remained enforceable despite prior and subsequent development of commercial uses on unrestricted lots in Block 1; purpose of restrictions was to provide some protection for residential lots in the remainder of the 88-lot subdivision; increases in traffic and other development on unrestricted lands were foreseeable when covenant was created and purpose of covenant remained viable). Exchange Nat’l Bank v. City of Des Plaines, 336 N.E.2d 8 (Ill.Ct.App.1975) (use of 2 of 25 subdivision lots restricted to residential uses for church and parochial school and development of shopping center and commercial areas outside and across busy streets from subdivision were not sufficient changed conditions to justify relieving plaintiff’s lot of the restriction; church use is not a material violation and the other changes were outside the subdivision; testimony of lot owners that they relied on covenant in purchasing their property and abrogation would harm their property values showed that covenant had not outlived its purpose). Brendonwood Common v. Franklin, 403 N.E.2d 1136 (Ind.Ct.App.1980) (to abrogate covenants change of conditions in restricted area must be so radical in nature as to defeat the original purpose of the covenants; if other lot owners remain in position to benefit from enforcement, covenant should not be abrogated; same standard applies to affirmative covenants; inclusion of area in city of Indianapolis, paving of roads, turning over of vicinal reservation to private country club, and increase in maintenance costs are not sufficient changes to justify abrogation of covenants requiring lot owners to pay assessments for maintenance of roads in the community). South Shore Homes Ass’n, Inc. v. Holland Holiday’s, 219 Kan. 744, 549 P.2d 1035 (1976) (granting developer’s request for injunction against use of lots for camping was proper despite fact that only 5 of 202 lots in 1 subdivision and 21 of 131 in the other subdivision on Lake Pomona had been developed with residences since the lots were platted in 1965 and defendants had been using their 2 lots for recreational camping for 7 years; although possible to speculate that the economy has frustrated development of the area there is no indication that development will not occur in the future; acquiescence does not bar enforcement so long as restriction remains of value and there is no evidence that defendants have changed their position or that it would be inequitable to enforce the restriction against them). Elliott v. Jefferson County Fiscal Court, 657 S.W.2d 237 (Ky.1983) (vacant corner lot located on boundary of the subdivision will not be relieved of residential-use covenant where all other lots in subdivision are used exclusively for single-family residential use and all changes relied on for claimed changed conditions have occurred outside the subdivision; role of equity is to protect those who wish to abide by continued enforcement of the restrictions rather than the singular benefit to owners of border lots). Rieger v. Wessel, 319 S.W.2d 855 (Ky.Ct.App.1958) (facts that substantial commercial development had occurred since imposition of restrictions in 1927, 7 lots for which exemption is sought have never been developed and are separated by a street from the remaining 24 developed lots in the residential subdivision do not justify freeing the 7 lots from restrictions where no commercial development has occurred within the subdivision; equity court will not declare restrictions unenforceable unless changes take place in the subdivision and are acquiesced in by the property owners so as to render the changes permanent and to thereby materially curtail, if not destroy, the original purpose intended to be accomplished).

Lamana-Panno-Fallo, Inc. v. Heebe, 352 So.2d 1303 (La.Ct.App.1977) (increased traffic on canal and street bisecting long-narrow subdivision and use of 59 of 70 lots for commercial use in violation of residential restrictions justify refusal to enforce restrictions; widespread violation shows abandonment and property in controversy would have little value for residential use). Chevy Chase Village v. Jaggers, 275 A.2d 167 (Md.Ct.App.1971) (consideration of the broader neighborhood beyond boundaries of subdivision is appropriate in determining whether there has been such a change that the purpose of developing an attractive community can no longer be accomplished; use of a few of the 200 lots for nonresidential uses, including a church, 4 doctors’ offices maintained in their homes, a few lots on perimeter for parking, 2 for public utilities, and minor parts of 2 others for a commercial building does not constitute such a change; aerial photographs and testimony demonstrate that the subdivision is still a highly desirable residential neighborhood completely unspoiled by commercialism; presence of a tasteful shopping center on 2 blocks designated for commercial area complements the neighborhood). Exit 1 Properties Ltd. v. Mobil Oil Corp., 692 N.E.2d 115 (Mass.Ct.App.1998) (covenant limiting sale of food and beverages on gas station parcel to vending-machine sales not rendered obsolete by change in highway gas stations to incorporate convenience stores; utility to benefited restaurant parcel remains unchanged; even if covenant were obsolete, court could modify covenant to allow gas station more food and beverage sales and then enforce modified covenant to protect restaurant owner benefited by covenant; in enforcing restriction on competition, court may adjust restriction to make it reasonable in circumstances of the parties at the time they seek court enforcement). Cogliano v. Lyman, 348 N.E.2d 765 (Mass.1976) (covenant imposed in 1956 to preserve residential character of neighborhood and to protect colonial General Crane House remained enforceable despite substantial commercial and industrial development and increase in traffic in the area where the restricted properties maintained their essential qualities despite the odds in part because of the restriction; enforcing the restriction would not be merely quixotic, failing to serve grantor’s original purpose and impeding present desirable and feasible uses). De Marco v. Palazzolo, 47 Mich.App. 444, 209 N.W.2d 540 (1973) (eradication of substantial part of subdivision by construction of freeway, change in road fronting plaintiff’s lots from 2-lane country road to 4-lane thoroughfare carrying 24,000 vehicles per day and development of all nearby property as commercial justified conclusion that plaintiff’s lots--the only ones in subdivision that fronted on this road--should be relieved of residential-only restrictions; 2 lines of authority in Michigan reach different conclusions as to relevance of changes outside the subdivision; here court is not forced to choose between them; although most changes occurred outside of subdivision, they affected conditions inside the subdivision by increasing traffic, noise, dirt, and inconvenience, substantially lessening the benefit of the covenant for the remaining owners). Swan v. Mitshkun, 207 Mich. 70, 173 N.W. 529 (1919) (leading case in line holding that changes outside the subdivision are not relevant in determining whether changed-conditions doctrine should be applied so long as the original plan for a residential district has not been departed from on the street or block in question). Frink v. Hughes, 133 Mich. 63, 94 N.W. 601 (1903) (leads line of cases holding that land-use patterns in area surrounding restricted property are relevant in determining whether covenants should be enforced). Stolba v. Vesci, 909 S.W.2d 706 (Mo.Ct.App.1995) (where the only evidence of changed conditions was that the area around the subdivision subject to the restriction had moved towards higher-density development, and the Condominium Property Act had been enacted, the essential purpose of the restrictive covenant allowing only “private homes” to be built alongside a river was not defeated and the covenant was not rendered valueless to its parties. The court noted that it would be “more likely to deny enforcement on the ground of changed conditions if such changes have occurred within the restricted area itself and have been wrought by the party seeking judicial enforcement.”). Dierberg v. Wills, 700 S.W.2d 461 (Mo.Ct.App.1985) (general rule is that change must be so radical as to defeat the essential purpose of the covenant or render it valueless to the parties; denial of enforcement more likely if change has occurred within the restricted area than outside; increase of commercial activity and noise outside the tract combined with construction of highway on one parcel and bank on another did not render covenant unenforceable as to balance of restricted tracts which continue to be used for residential purposes). Changed conditions was not argued, but might appropriately have been applied in Rhodes v. Tanner, 591 S.W.2d 90 (Mo.Ct.App.1979) (lot owners entitled to injunction against erecting barriers, gates, or fences on any roads shown on subdivision plat where declaration granted each lot an easement over all roads shown on plat without regard to damages sustained by them; even though only 13 lots out of 146 were ever sold and remainder were purchased by defendant for use as cattle ranch, defendant was not entitled to barricade roads not necessary for access to plaintiffs’ lots). Goldberg v. Al Tinson, Inc., 338 A.2d 556 (N.H.1975) (restriction on commercial property prohibiting use for restaurant, or sales of ice cream, beverages, or similar enterprises for 50 years terminated; conditions had changed sufficiently to defeat purposes of the restriction). Murphy v. Trapani, 255 N.J.Super. 65, 604 A.2d 635 (1992) (covenant prohibiting obstructions over a lagoon was not terminated due to changed conditions where other landowners built docks and bulkheads over the water, but no other property owners other than the defendants had built a deck over the lagoon). Wilcox v. Timberon Protective Ass’n, 111 N.M. 478, 806 P.2d 1068 (1990) (covenant prohibiting owners of lots in resort community from placing mobile homes on their lots was not terminated due to change in conditions where mobile homes

were on 10 out of 412 lots in the subdivision. The court noted that this was “insufficient evidence to support a finding that there had been a radical change in the environment and the character of the neighborhood sufficient to make the restrictive covenant obsolete.”). Wilcox v. Timberon Protective Ass’n, 806 P.2d 1068 (N.M.Ct.App.1990) (placement of mobile homes on 17 out of 412 lots did not constitute change in conditions sufficient to require modification or termination of covenant prohibiting mobile homes; that mobile homes were permitted in other subdivisions subject to different restrictions was irrelevant; the number of violators in this subdivision was insufficient to support finding of radical change in environment and character of the neighborhood that made covenant obsolete). Whorton v. Mr. C’s, 687 P.2d 86 (N.M.1984) (changed conditions did not warrant refusal to enforce covenant prohibiting sale of alcoholic beverages in places of public resort in original townsite of Alamogordo; changes may have reduced the benefits of enforcement but do not make it impossible to secure the benefits of developing the area with desirable residential and business property and to further the best interests of the inhabitants; substantial change that does not destroy the benefits is insufficient to warrant refusal of equitable relief; economic considerations to restaurants in the town are not sufficient, absent evidence that changes made the property unsuitable for either residential or commercial purposes if the restriction was enforced). Orange & Rockland Utilities, Inc. v. Philwold Estates, Inc., 418 N.E.2d 1310 (N.Y.1981) (condemnation of riparian rights by city making use of property for hydroelectric plant impossible constituted change of conditions sufficient to justify termination of covenant restricting property to use as hydroelectric plant only). Zimmerman v. Seven Corners Dev., Inc. 654 N.Y.S.2d 523 (App.Div.1997) (injunction against violation of residential-only restriction properly denied and restriction terminated under RPAPL 1951(1) where 1986 amendment to zoning ordinance permitted commercial development and prohibited residential construction on the burdened property; trial court erred in summarily dismissing alternative request for damages; persons seeking to enforce restriction are entitled to “such damages, if any” they will suffer from extinguishment). Deak v. Heathcote Ass’n, 191 A.D.2d 671, 595 N.Y.S.2d 556 (1993) (covenant that plots not be subdivided or sold except as whole was not terminated due to change in conditions where the evidence of change was that the association had approved subdivisions of a few lots in the past). Gordon v. Incorporated Village of Lawrence, 84 A.D.2d 558, 443 N.Y.S.2d 415 (1981) (addition of recreation facilities outside of restricted area and tennis courts within restricted area do not destroy the character of the restricted subdivision or defeat the object and purpose for which the restrictions were imposed). Nash v. State, 61 A.D.2d 852, 401 N.Y.S.2d 923 (1978) (small parcel remaining after taking properly valued on basis of highest and best use with residential-use restriction intact; burden to show unenforceability due to changed condition is heavy; where residential character of subdivision persists and commercial use has only infiltrated adjacent area, covenant will not be extinguished). Uvanni v. CMB Builders, Inc., 41 A.D.2d 1019, 343 N.Y.S.2d 954 (1973) (defendant’s lot located at westerly edge of 298-lot subdivision fronting on Black River Blvd., a major arterial highway, relieved of 1914 residential covenant due to changed conditions; no residential building has taken place in this block in 15 years, there are 2 medical buildings and a 2-story office building on other lots fronting on Black River Blvd., and defendant’s lot is not suitable for residential use; enforcement of the restriction would be valueless to plaintiff’s property and onerous to defendant; decision not to be interpreted as justifying violation of covenant on lots east of this one, however, because character of balance of the subdivision has not changed; burden to show covenant valueless because of change is on party attacking it and is not a light burden). Williams v. Paley, 114 N.C.App. 571, 442 S.E.2d 558 (1994), review denied, 448 S.E.2d 541 (N.C.1994) (covenant containing provision for termination on the occurrence of a “turn to commercial use of the adjacent or nearby properties” was not waived where the commercial use shown (including: (1) rental of nearby residential housing to vacationers as a “bed and breakfast,” (2) use of residences as rental properties with at least 1 transaction being handled by a rental agency, (3) prior use of nearby properties by an antique dealer and the owner of a charter boat in the 1960s and 1970s, (4) the leasing of the lot 15 feet away from the plaintiff’s lot to store machinery, supplies, and equipment for a construction project, (5) the use of the same lot as a sales office for condominium units, some of which were not located on the plaintiff’s lot) was not so radical as to “practically destroy the essential objects and purposes of the scheme of development.” Covenant not terminated.). Hawthorne v. Realty Syndicate, Inc., 300 N.C. 660, 268 S.E.2d 494, reh’g den., 301 N.C. 107, 273 S.E.2d 442 (1980) (use of lots restricted to residential use for branch-bank office housed in residential structure and public library in unobtrusive brick structure did not work such fundamental or radical change in neighborhood as to preclude enforcement against lot used for real-estate office; evidence of changes outside subdivision properly excluded). Sterling Cotton Mills, Inc. v. Vaughan, 24 N.C.App. 696, 212 S.E.2d 199 (1975) (use of 4 of 62 lots restricted to residential purposes for auto garage and repair shop, sale of used cars, fabric shop, and snack bar was not such radical change as practically to destroy the essential objects and purposes of the covenants or warrant the removal of the restriction). Landen Farm Community Services Ass’n v. Schube, 78 Ohio App.3d 231, 604 N.E.2d 235 (1992) (covenant applying to a 2,400-unit residential community that restricted freestanding front-yard basketball apparatuses was terminated where 50 other homes in the community had freestanding basketball hoops on their property and no action was taken to rectify the situation. The court found that the community had been “substantially altered so as to render the restriction valueless to other

homeowners.”). Ohio Turnpike Commission v. Goodnight Inn, Inc., 69 Ohio App.3d 361, 590 N.E.2d 1270 (1990) (covenant that prohibited the erection of any signs on billboards visible from the Ohio Turnpike was not terminated by a change in the condition of the neighborhood where neighboring parcels not subject to the restrictions had erected signs visible from the turnpike). Semachko v. Hopko, 35 Ohio App.2d 205, 301 N.E.2d 560 (1973) (property rezoned for office-building use located on road that had become main city artery with heavy traffic in neighborhood where many business establishments, several churches, and some schools were located relieved of residential-use restrictions; trial court’s judgment that residential restrictions should not be enforced to prevent construction and operation of funeral home because of substantial change in the character to commercial uses upheld where reasonable minds could differ on conclusions to be drawn from the evidence). Logston v. Penndale, Inc., 576 A.2d 59 (Pa.Super.Ct.1990) (changed conditions did not warrant termination of restriction against sale of liquor; community remained primarily residential and several descendants of original developers were residents). Deitch v. Bier, 460 Pa. 394, 333 A.2d 784 (1975) (plaintiff-grantor’s use of unrestricted property adjoining restricted tract for school-bus parking and maintenance is relevant in determining whether conditions have so changed that it is impossible to secure in substantial degree the benefits intended to be secured by performance of covenant prohibiting business or commercial use against proposed conversion of garage into barber shop consented to by 42 of 50 lot owners in subdivision; case remanded for consideration of changes in the immediate neighborhood of restricted lot). Dreher Township Bd. v. Solitron Dev. Co., 481 A.2d 1207 (Pa.Super.Ct.1984) (1972 covenant providing that central-sewage disposal system to be constructed by developer was to be sole sewage system for the development enforced; finding that property was suitable for on-site disposal systems did not establish that original purpose of restriction had been destroyed). Scott v. Owings, 223 Pa.Super. 481, 302 A.2d 423 (1973) (residential development on 30,000 square foot lots outside 53-acre tract restricted to 2-acre minimum lot size did not justify removal of restriction where benefits of covenant in providing privacy, open space, and maintaining sylvan landscape within the tract continue to be enjoyed; changes in areas remote from restricted tract are not relevant; question is whether such changes have occurred in the neighborhood that the restriction is no longer of substantial value to the owner seeking enforcement). Abbott v. Arthur, 198 S.E.2d 261 (S.C.1973) (commercial development in unrestricted adjacent area does not justify lifting restrictions on border lots in subdivision; otherwise, all restrictions would be exposed to eventual invalidation). Caudill v. Hamlet, 490 S.W.2d 538 (Tenn.1972) (trial court’s conclusion that widening of road, removal of line of trees in front of houses, construction of shopping center across the road, increased traffic and installation of bright lights rendered 9 lots fronting road unsuitable for residential use and constituted changed conditions justifying removal of restrictions reversed on grounds that no changes had taken place within 81-lot subdivision, other lot owners purchased in reliance on restrictions and object to their removal, and whole purpose of original scheme has not been defeated; the very purpose of the restriction was to prevent the property from being devoted to business use if it becomes more valuable for such use than for residential use). Jones v. Englund, 870 S.W.2d 525 (Tenn.Ct.App.1993) (covenant restricting lots in subdivision to single-family dwelling were not terminated because of change in conditions where the only evidence of change was that the number of dwellings in the subdivision had increased, the amount of boat traffic on the lake had increased, and more of the property owners were living in the subdivision year-round rather than on a seasonal basis). State v. Kinsloe, 716 S.W.2d 699 (Tex.Ct.App.1986) (where property located in area experiencing general commercialization and rapidly increasing property values and 6 other businesses in area were violating restrictions without objection from neighbors, valuation expert’s testimony based on probability of change in deed restrictions in reasonable future admissible in setting compensation for property condemned). Ortiz v. Jeter, 479 S.W.2d 752 (Tex.Ct.Civ.App.1972) (restrictions can be enforced against border lots that have become unsuitable for residential use if enforcement will benefit interior lots; border lots in restricted subdivision must bear the brunt of the onslaught of commercial development; otherwise, domino effect would eventually destroy the subdivision). First State Bank of Corpus Christi v. James, 471 S.W.2d 868 (Tex.Ct.Civ.App.1971) (cancellation of restrictions on some parts of subdivision that had become commercial did not prevent enforcement of restrictions against other lots where enforcement would benefit residential users). Hunter v. Pillers, 464 S.W.2d 939 (Tex.Ct.Civ.App.1971) (construction of interstate highway caused such a change of conditions that residential-only restriction should be removed from plaintiff’s lot abutting freeway right of way; property no longer useable for residential purposes; other restricted owners claiming that removal of restrictions would damage their property failed to offer proof as to amount of damage or diminution in value that would result). Marks v. Wingfield, 331 S.E.2d 463 (Va.1985) (flooding and ordinance regulating elevation of future buildings because of flooding did not defeat the essential purpose of covenants prohibiting shacks, tents, house trailers, and temporary dwellings; permanent houses were not damaged in the flood; prohibiting mobile campers promotes maintaining residential character of neighborhood). First Nat’l Trust & Savings Bank, Trustee v. Raphael, 113 S.E.2d 683 (Va.1960) (plaintiff not entitled to termination of easements so that building can be constructed on entire lot; 1847 party-wall agreement in which plaintiff’s predecessor agreed never to erect any structure on the rear 72 feet of his lot that would lessen the flow of light to the part of defendant’s

predecessor’s property “now occupied as a family residence” and to permit rainwater falling from the building on defendant’s lot to continue to fall and be carried off from plaintiff’s lot created easements; fact that upper two stories of building on defendant’s lot are no longer used as a residence and natural light is no longer necessary for illumination did not provide grounds for termination of easements; reference in deed to family residence was for identification purposes only; easements were not created for limited purpose of serving property while used as a residence; easement created for general purposes is not affected by change in use of dominant estate; unobstructed source of light and air has continuing benefit to dominant estate as does drainage easement). St. Luke’s Evangelical Lutheran Church v. Hales, 13 Wash.App. 483, 534 P.2d 1379 (1975) (widening of Division street to 4 lanes and conversion of 6 nearby lots to business use did not require release of 1922 restrictions on 12 plaintiffs’ properties fronting on Division where the restricted area consisted of 500 lots, the neighborhood still had a general residential character, and the trial court found that the business ventures were not of sufficient magnitude to constitute a radical change in conditions; 1955 decree removing restrictions on 2 other lots was not res judicata as to other lots in the subdivision on Division Street; it is possible to relieve some lots without affecting the others). Morris v. Nease, 238 S.E.2d 844 (W.Va.1977) (building of church and use of garages for rental units in the same block did not significantly alter residential character of neighborhood and would not justify refusal to enforce single-family residential covenant against commercial use on ground of changed conditions).

Changes Caused by Claimant

Cordogan v. Union Nat’l Bank of Elgin, 64 Ill.App.3d 248, 380 N.E.2d 1194 (1978) (developer not entitled to relief from single-family residence restriction on 3 unsold lots in outside corner of subdivision on the basis of commercial development of adjacent properties outside subdivision where developer sold that land without restrictions and other subdivision lot owners relied on restrictions in buying from developer) (burden is on party seeking relief from enforcement of restriction).

Profits

First Nat’l Bank v. Konner, 367 N.E.2d 1174 (Mass.1977) (court declined to adopt rule that profit created for a special purpose terminates when it would be commercially impractical or economically wasteful to attempt to revive the activity it was created to serve; it would be totally unwarranted to infer that the creator of the right to take sand for a cranberry bog intended a commercially profitable venture to be a condition precedent to either the exercise or continuation of the right). The court distinguished several cases in which easements were terminated when they could not possibly be exercised on the grounds that the circumstances that prevented exercise of the easements were beyond the control of the dominant owners.

Change in Zoning

A change in zoning alone does not justify modification or termination of covenants, unless the zoning makes it impossible to use the property for any purpose allowed under the covenants. Goodman v. Superior Court, 670 P.2d 746 (Ariz.Ct.App.1983) (rezoning is merely some evidence as to most economical use for the property, but mere change in value does not justify removal of restrictive covenant; changes in surrounding circumstances must be so fundamental or radical as to defeat or frustrate original purposes of restrictions). Boschelli v. Villa Park Trust & Sav. Bank, 318 N.E.2d 527 (Ill.Ct.App.1974) (conversion of house to real-estate office and vacant lot to parking lot enjoined; zoning variance allowing conversion did not abrogate covenant). Redfern Lawns Civic Ass’n v. Currie Pontiac Co., 328 Mich. 463, 44 N.W.2d 8 (1950) (facts that 9 lots fronting on Grand River Ave. were zoned for limited commercial use, had remained vacant since 1916 plat, and probably would remain vacant, did not justify trial court’s refusal to enjoin violation of single-family residential-use covenant where substantial homes had been built on 55 or 60 of remaining lots and no lots in subdivision had been used for business purposes; it is inevitable that all lots on the fringe of a residential district may become a buffer; to lift the restriction would only cut down this desirable residential area and create another buffer area). Rofe v. Robinson, 415 Mich. 345, 329 N.W.2d 704 (1982) (deed restrictions are valuable property rights the courts will protect; change in zoning permitting office buildings only, widening of street to 6-lane thoroughfare, use of single-family structure on another lot for business purposes, and economic impracticality of building residences on lots restricted to single-family residential use does not justify invalidation of restrictive covenants where subdivision remains substantially residential in character). Zimmerman v. Seven Corners Dev., Inc., 654 N.Y.S.2d 523 (App.Div.1997) (injunction against violation of residential-only restriction properly denied and restriction terminated under RPAPL 1951(1) where 1986 amendment to zoning ordinance permitted commercial development and prohibited residential construction on the burdened property; trial court erred in summarily dismissing alternative request for damages; persons seeking to enforce restriction are entitled to “such damages, if any” they will suffer from extinguishment). Redevelopment Comm’n of Greensboro v. Ford, 313 S.E.2d 211 (N.C.Ct.App.1984), review denied, 319 S.E.2d 274 (N.C.1984) (later enactment of less restrictive zoning than covenant imposed by redevelopment commission is not change of

circumstance sufficient to invalidate covenant). Mills v. HTL Enterprises, Inc., 244 S.E.2d 469 (N.C.Ct.App.1978) (inclusion of area within city limits, commercial development in surrounding area, increase in traffic on Central Ave., difference in value of lots for residential and commercial purposes of $4,000 as compared to $38,000, and zoning for commercial use did not justify trial court’s conclusion that restriction on corner lot fronting on Central should be abrogated; lot served as gateway to residential development and release would open the door to release of the remaining lots). Frey v. Poynor, 369 P.2d 168 (Okla.1962) (change in zoning does not destroy restrictive covenants although it may be evidence of a substantial transformation of the district; greater value of lots for commercial than residential use does not justify denying other lot owners enforcement of covenant if they will obtain some benefit thereby; failure to include residential restriction on 26 of 280 lots does not indicate abandonment of plan but choice to permit some commercial uses for convenience of residential lots). Inabinet v. Booe, 202 S.E.2d 643 (S.C.1974) (change in zoning does not require removal of restrictive covenant; whichever is more restrictive controls; changes must be so radical as to practically destroy the essential objectives and purposes of the agreement to justify removal of covenants; use of a few properties as rentals and location of a chiropractor’s office within his home in 160-lot subdivision is inconsequential and has not substantially changed the residential character in a way that would justify defendant’s use for a real-estate office). Bob Layne Contractor, Inc. v. Buennagel, 301 N.E.2d 671 (Ind.Ct.App.1973) (covenants remained enforceable; vacation of plat as to part of lots in subdivision did not terminate covenants; planned construction of freeway that would render substantial number of lots more suitable for commercial development did not constitute change of conditions sufficiently radical to justify terminating covenants). Suess v. Vogelgesang, 151 Ind.App. 631, 281 N.E.2d 536 (1972) (evidence of zoning-law change is admissible to show that character of neighborhood has changed so as to render restrictive covenant unenforceable (dictum)). Rofe v. Robinson, 415 Mich. 345, 329 N.W.2d 704 (1982) (change in zoning is not sufficient evidence of a change in the character of an area to require lifting residential restrictions; it is only 1 factor to be considered, and is relevant only if indicative of a change in the character of the area). Redfern Lawns Civic Ass’n v. Currie Pontiac Co., 328 Mich. 463, 44 N.W.2d 8 (1950) (change in zoning to commercial use does not justify relieving lots of burden of covenant restricting use to single-family residential where defendant’s proposed auto sales and service business does not appear so closely related to community needs as to require special consideration, scarcity of desirable business sites does not give rise to equities paramount to those of plaintiffs to live in a district uninvaded by stores, garages, business, and apartment houses). Gladstone v. Gregory, 596 P.2d 491 (Nev.1979) (neither increased monetary value of properties without height limit nor less stringent zoning regulations justify removal of restriction prohibiting 2-story houses; all homes except 1 remain 1-story and restriction continues to protect privacy).

Statutory Termination Standards

Gulf Oil Corp. v. Fall River Housing Auth., 306 N.E.2d 257 (Mass.1974) (covenant prohibiting use of property as service station enforceable against successor; no change of circumstance rendered it obsolete, nor did it impede reasonable use of the land or tend to impair growth of the neighborhood or contribute to blight). Zimmerman v. Seven Corners Dev., Inc., 654 N.Y.S.2d 523 (App.Div.1997) (injunction against violation of residential-only restriction properly denied and restriction terminated under RPAPL 1951(1) where 1986 amendment to zoning ordinance permitted commercial development and prohibited residential construction on the burdened property; trial court erred in summarily dismissing alternative request for damages; persons seeking to enforce restriction are entitled to “such damages, if any” they will suffer from extinguishment). Board of Education v. Doe, 452 N.Y.S.2d 964 (App.Div.1982) (finding that restrictive covenant is valueless to party seeking enforcement is not prerequisite to extinguishment under statute; court must balance equities to determine whether covenant is of no actual and substantial value; extinguishment warranted where plaintiff owns 20 lots in 160-lot subdivision; only 1 lot on road where land is located remains residential; road has become 4 to 6-lane highway; property was previously used for junior high school and cannot feasibly be developed for residential use; of 3 property owners who remain opposed to conversion of property to commercial use, only 1 appeared to testify; covenant is of no substantial benefit to other lot owners). City of Houston v. Emmanuel United Pentecostal Church, Inc., 429 S.W.2d 679, ref. N.r.e. 433 S.W.2d 680 (Tex.Ct.Civ.App.1968) (acquiescence of owners in residentially restricted area in construction of church within subdivision and operation for 4 years authorized trial court to modify restrictions to permit church construction proposed by plaintiff). City of Houston v. Klonis, 468 S.W.2d 182 (Tex.Ct.Civ.App.1971) (use of property located north and south of 4 lots in subdivision by commercial establishments and churches was not ground for modification of residential restriction on plaintiff’s lot in subdivision to permit construction of commercial building where there was no showing of waiver of the restrictions by subdivision lot owners or that restrictions had been abandoned).

STATUTORY NOTE


California: Cal. Civ. Code § 885.040. Obsolete powers; expiration; grants to public entities, etc. (a) If a power of termination becomes obsolete, the power expires. (b) As used in this section, a power of termination is obsolete if any of the following circumstances applies: (1) The restriction to which the fee simple estate is subject is of no actual and substantial benefit to the holder of the power. (2) Enforcement of the power would not effectuate the purpose of the restriction to which the fee simple estate is subject. (3) It would be otherwise inequitable to enforce the power because of changed conditions or circumstances. (c) No power of termination shall expire under this section during the life of the grantor if it arises from a grant by a natural person without consideration to a public entity or to a society, corporation, institution, or association exempt by the laws of this state from taxation. Massachusetts: Mass. Gen. Laws ch. 184, § 23: Conditions or restrictions, unlimited as to time, by which the title or use of real property is affected, shall be limited to the term of 30 years after the date of the deed or other instrument or the date of the probate of the will creating them, except in cases of gifts or devises for public, charitable or religious purposes. This section shall not apply to conditions or restrictions existing on July 16, 1887, to those contained in a deed, grant, or gift of the commonwealth, or to those having the benefit of § 32. Massachusetts: Mass. Gen. Laws Ann. ch. 184, § 30: No restriction shall ... be enforced ... unless it is determined that the restriction is at the time of the proceeding of actual and substantial benefit to a person claiming rights of enforcement. * * * Minnesota: Minn. Stat. Ann. § 500.20(1): When any covenants, conditions, restrictions or extensions thereof annexed to a grant, devise, or conveyance of land are, or shall become, merely nominal, and of no actual and substantial benefit to the party or parties to whom or in whose favor they are to be performed, they may be wholly disregarded; and a failure to perform the same shall in no case operate as a basis of forfeiture of the land subject thereto. New York: N.Y. Real Prop. Law § 1951 New York: 1. No restriction on the use of land created at any time by covenant, promise or negative easement, ... shall be enforced by injunction or judgment compelling a conveyance of the land burdened by the restriction or an interest therein, nor shall such restriction be declared or determined to be enforceable, if at the time the enforceability of the restriction is brought into question, it appears that the restriction is of no actual and substantial benefit to the persons seeking its enforcement or seeking a declaration or determination of its enforceability, either because the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment, or for any other reason. New York: 2. * * * if the court shall find that the restriction is of no actual benefit ... it may adjudge that the restriction is not enforceable by injunction or ... that it shall be completely extinguished upon payment to the person or persons who would otherwise be entitled to enforce it in the event of a breach at the time of the action, of such damages, if any as such person or persons will sustain from the extinguishment of the restriction. Texas: Tex. Local Govt. Code Ann. § 230.017: Administrative refusal to issue commercial building permit based on violation of restrictions is reviewable by court; (b) if conditions in a subdivision change or if other legally sufficient reasons to modify the restrictions occur, a person who has been refused a commercial building permit may petition a court of competent jurisdiction to alter the restrictions to better conform to present conditions.





§ 7.11 Modification And Termination Of A Conservation Servitude Because Of Changed Conditions

A conservation servitude held by a governmental body or conservation organization may not be modified or terminated because of changes that have taken place since its creation except as follows:

(1) If the particular purpose for which the servitude was created becomes impracticable, the servitude may be modified to permit its use for other purposes selected in accordance with the cy pres doctrine, except as otherwise provided by the document that created the servitude.

(2) If the servitude can no longer be used to accomplish any conservation purpose, it may be terminated on payment of appropriate damages and restitution. Restitution may include expenditures made to acquire or improve the servitude and the value of tax and other government benefits received on account of the servitude.

(3) If the changed conditions are attributable to the holder of the servient estate, appropriate damages may include the amount necessary to replace the servitude, or the increase in value of the servient estate resulting from the modification or termination.

(4) Changes in the value of the servient estate for development purposes are not changed conditions that permit modification or termination of a conservation servitude.

Cross-References:

Section 1.6, Conservation Servitude and Conservation Organization Defined; § 7.10, Modification and Termination of a Servitude Because of Changed Conditions; § 8.1, Right to Enforce a Servitude; § 8.3, Availability and Selection of Remedies for Enforcement of a Servitude; § 8.5, Enforcement of a Conservation Servitude Held by a Governmental Body of a Conservation Organization.

Comment:

a. Rationale. This section sets forth special rules for modification and termination of conservation servitudes that are enforceable by public bodies or conservation organizations. As defined in § 1.6, conservation organizations are limited to charitable organizations that have conservation or preservation powers or purposes. Because of the public interests involved, these servitudes are afforded more stringent protection than privately held conservation servitudes, which are subject to modification and termination under § 7.10.

There is a strong public interest in conservation and preservation servitudes. Statutes have been enacted to eliminate questions about their enforceability in all but three states, and their creation is subsidized indirectly by tax deductions and directly through purchases by public agencies and nonprofit corporations. Their importance, underscored by statutory requirements that they be perpetual, will continue to increase as population growth exerts ever-greater pressures on undeveloped land, ecosystems, and wildlife. On the other hand, it is inevitable that, over time, changes will take place that will make it impracticable or impossible for some conservation servitudes to accomplish the purpose they were designed to serve. If no conservation or preservation purpose can be served by continuance of the servitude, the public interest requires that courts have the power to terminate the servitude so that some other productive use may be made of the land.

The rules stated in this section are designed to safeguard the public interest and investment in conservation servitudes to the extent possible, while assuring that the land may be released from the burden of the servitude if it becomes impossible for it to serve a conservation or preservation purpose. This section should be read together with § 8.5 which provides that until a

conservation servitude is terminated, it is enforceable by coercive remedies designed to give full effect to the purpose of the servitude.

b. Application of cy pres doctrine.If the particular purpose for which the servitude was created can no longer be accomplished, but the servitude is adaptable for other conservation or preservation purposes, the servitude should be continued for those other purposes unless the document that created the servitude provides otherwise. When change makes it impossible or impracticable to accomplish the particular purpose, subsection (1) provides for modification to permit use of the servitude for other conservation or preservation purposes, applying the cy pres doctrine of charitable-trust law. Because conservation servitudes are usually intended to be “perpetual,” finding that the grantor’s intent was broad enough to encompass a more general conservation or preservation purpose than the particular use specified in the instrument will ordinarily be justified absent a contrary provision in the document creating the servitude.

c. Impossibility of accomplishing a conservation purpose permits termination of a servitude. If it becomes impossible to accomplish the purpose of a conservation servitude, a court has the power under subsection (2) to terminate the servitude on payment of appropriate damages and restitution. Damages should ordinarily be calculated to compensate the public for loss of the servitude. If the servient owner is responsible for the loss of the servitude’s utility, damages should be measured by the replacement value of the servitude, or in appropriate cases, by the increased value of the servient estate that will result from termination of the servitude. If the servient owner is not responsible for the changes that have made the servitude useless for conservation or preservation purposes, damages sufficient to replace the servitude may be unfair. In that case, restitution, without more, may be appropriate. Restitution may include amounts invested in acquisition and improvement of the servitude, as well as tax and other governmental benefits received by the servient owner as a result of creation of the servitude.

The primary difference between applying the changed-conditions doctrine under § 7.10 and terminating a conservation servitude under the rule stated in this section is the entitlement to damages. In other instances where changed conditions lead to termination of servitudes, particularly in residential subdivisions, there is seldom an entitlement to damages. The opposite is true with conservation servitudes. There are two reasons for this difference in treatment. The first is a difference in the likely expectations of the parties to the servitudes. People who buy property subject to restrictions in residential developments generally do not foresee the changes that ultimately result in termination of the servitudes. The servitudes are terminated when it would be unfair to continue to enforce them because those seeking enforcement do not have a legitimate interest to be advanced by enforcement (see § 7.10). By contrast, conservation servitudes are usually made on the premise that there will be change and that legally enforceable measures are necessary to prevent undesired change on the servient estate, even as surrounding properties change in use. The second reason is the strong public interest in the continued availability of property devoted to conservation purposes and in avoiding loss of public investments made in such property. These interests should be protected if the servitude is terminated.

d. Deterring servient owners from impairing utility of servitudes is important. To protect the public’s interest in conservation and preservation, it is important to deter the owners of property burdened by conservation servitudes from causing changes designed to permit modification or termination of the servitude. The damages provisions of subsection (3) are designed to provide this deterrence. If the changes are attributable to the servient owner, the decree modifying or terminating the servitude may be conditioned on payment of damages sufficient to replace the servitude with one of a value equivalent to the terminated servitude before the changes, and on disgorgement of profits attributable to termination of the servitude.

Another threat to conservation servitudes is posed by the costs of litigation. A servient owner who wants to develop the burdened property may attempt to force the beneficiary to agree to modification of the servitude by threatening protracted changed-conditions litigation. Protracted litigation is likely to be particularly threatening to the nonprofit conservation organizations that are the beneficiaries of many conservation servitudes. Under the rules stated in this section, the changed-conditions doctrine has very limited scope. It can be used only in two instances: (1) if the servitude cannot be used for the particular conservation purpose contemplated, the scope of the servitude may be expanded to include other conservation purposes; and (2) if the servitude cannot possibly accomplish a conservation purpose, it may be terminated. It cannot be used to modify the servitude to permit additional uses or development of the servient estate. The availability of early resolution through summary-judgment proceedings should limit the ability of well-financed developers to force modification by threats of litigation. In addition, subsection (4) explicitly provides that changes in the value of the servient estate for development purposes are not grounds for modification or termination.

REPORTER’S NOTE

Probably because widespread use of conservation servitudes dates only from the 1970s, no reported appellate opinions

have been found that have modified or terminated a conservation or preservation servitude due to changed conditions or frustration of purpose. The positions taken in this section do find support in the growing body of literature on the subject and in some state statutes.

Jeffrey A. Blackie, Conservation Easements and the Doctrine of Changed Conditions, 40 Hast. L. J. 1187 (1989), takes the position that when the purpose of a conservation servitude can no longer be fulfilled, the servitude should be reformed using the cy pres doctrine if possible, and if not, the servitude should be terminated, but only if the owner of the servient estate pays the easement holder an amount measured by the increased value of the servient estate due to termination of the servitude. The rationale for the latter position is that the servient owner would otherwise reap a windfall and the easement holder would be able to purchase another easement for public benefit.

Frederic Cheever, Public Good and Private Magic in the Law of Land Trusts and Conservation Easements: A Happy Present and a Troubled Future, 73 Den. U. L. Rev. 1077 (1996). Notes that “[t]he combination of the doctrine of changed conditions and the present preservation-appropriate requirements in conservation easement statutes may provide fertile ground for arguments to invalidate easements when plaintiffs can convince a court that the easement no longer serves a purpose the legislature contemplated.”

Richard B. Collins, Alienation of Conservation Easements, 73 Den. U. L. Rev. 1103, 1106 (1996), observes: “If there are parties able to bargain over ending land restrictions [which there are in the case of conservation easements], that ought to end any need for judicial intervention. If the need is great enough, legislatures will respond. Eminent domain is available. Any greater judicial intervention will destabilize the conservation easement. Security of property rights in conservation easements is as much in the public interest as any other.” Andrew Dana and Michael Ramsey, Conservation Easements and the Common Law, 8 Stan. Envtl. L.J. 2 (1989). In response to the argument that conservation easements should not be held in perpetuity because it allows a nonlocal entity, the land trust, to make decisions within communities the authors note that “[t]his argument fails to recognize that local land trusts must continually interact with local governments and neighbors.” Furthermore, due to limited funds, a land trust will likely negotiate with the owner of the servient estate in order to modify the easement, rather than go through expensive litigation. Yet, when issues cannot be resolved, and the parties must go to court, the court should limit its power to modify the conservation easement “or the fundamental attraction of easements--the duration of the protection they offer--will be lost.” Arguments in favor of applying the changed-conditions doctrine to conservation easements include: “(1) the original parties ... could not have anticipated change and therefore could not have intended that the restriction be enforced ..., (2) long-term restrictions give the possessors of such interest the right to cause inordinate harm to current owners ... and (3) renegotiation of land-use restrictions is impractical because of high transactions costs.” Arguments against applying the changed-conditions doctrine include (1) that “conservation easements are negotiated in express anticipation of change ... therefore, proper construction of the conservation restriction would strictly honor the easement’s terms” and (2) “indiscriminate use of the changed circumstances doctrine could result in insecurity of preservation rights, causing land trusts to reduce the number of easements they acquire.” The authors conclude that “[t]hese criticisms, in combination with the favor in which state legislatures hold perpetual donations of conservation easements, indicate that courts should be especially cautious when invoking the doctrine of changed conditions.” Moreover, when the owner of the land claims economic hardship, the court should be “especially reluctant to apply the doctrine” since the owner of the servient estate had notice that the property was burdened by a conservation easement. David Farrier, Conserving Biodiversity on Private Land: Incentives for Management or Compensation for Lost Expectations, 19 Harv. Envtl. L. Rev. 303, 344 (1995). Farrier suggests that the dead-hand-control argument against conservation easements is ironic considering the “current environmental context.” He argues that by conserving the land and keeping nonsustainable development at bay, one is actually increasing the number of choices for future generations because once the land is developed the damage is irreversible. Gerald Korngold, Privately Held Conservation Servitudes: A Policy Analysis in the Context of in Gross Real Covenants and Easements, 63 Tex. L. Rev. 433 (1984), argues that termination of conservation servitudes in the public interest should be provided for, preferably by statute, but if no statute is available, by the courts’ denying injunctions. However, Korngold suggests that an award of damages should be made to permit acquisition of a replacement servitude. Id. at 493. He points out that application of the changed-conditions doctrine to conservation servitudes is different from its application to other servitudes in that the benefit is evaluated in terms of benefit to the public rather than to the dominant parcel or subdivision. He also points out that the normal democratic and market pressures that lead to accommodations among dominant and servient owners may not operate in the arena of conservation servitudes.

STATUTORY NOTE


Provisions with respect to modification and termination of conservation servitudes range from the Uniform Act, which takes

the position that the law generally applicable to easements and charitable trusts applies, to statutes that require consideration of the public interest and replacement of the lost servitude or other property devoted to conservation purposes. Uniform Act: Section 2(a) Except as otherwise provided in this Act, a conservation easement may be ... released, modified, terminated, or otherwise altered or affected in the same manner as other easements. Section 3(b) This Act does not affect the power of a court to modify or terminate a conservation easement in accordance with the principles of law and equity. The Comment to § 3(b) explains various options available to courts to meet changed circumstances with respect to property subject to conservation servitudes and makes it clear that the act leaves modification and termination to the general law of servitudes and charitable trusts: ... A restriction burdening real property in perpetuity or for long periods can fail of its purposes because of changed conditions affecting the property or its environs, because the holder of the conservation easement may cease to exist, or for other reasons not anticipated at the time of its creation. A variety of doctrines, including the doctrines of changed conditions and cy pres, have been judicially developed and, in many states, legislatively sanctioned as a basis for responding to these vagaries. Under the changed conditions doctrine, privately created restrictions on land use may be terminated or modified if they no longer substantially achieve their purpose due to the changed conditions. Under the statute or case law of some states, the court’s order limiting or terminating the restriction may include such terms and conditions, including monetary adjustments, as it deems necessary to protect the public interest and to assure an equitable resolution of the problem. The doctrine is applicable to real covenants and equitable servitudes in all states, but its application to easements is problematic in many states. Under the doctrine of cy pres, if the purposes of a charitable trust cannot be carried out because circumstances have changed after the trust came into being or, for any other reason, the settlor’s charitable intention cannot be effectuated, courts under their equitable powers may prescribe terms and condition that may best enable the general charitable objective to be achieved while altering specific provisions of the trust. So, also, in cases where a charitable trustee ceases to exist or cannot carry out its responsibilities, the court will appoint a substitute trustee upon proper application and will not allow the trust to fail. The Act leaves intact the existing case and statute law of adopting states as it relates to the modification and termination of easements and the enforcement of charitable trusts. States with substantially similar statutes include: Alaska: Alaska Stat. §§ 34.17.010(a), .020(b), .030. Arkansas: Ark. Code Ann. §§ 15-20-404, -408, -409(b). Arizona: Ariz. Rev. Stat. Ann. § 33-271 (“In determining whether to modify or terminate a conservation easement a court shall consider the public interest to be served”). Colorado: Colo. Rev. Stat. § 38-30.5-107. Delaware: Del. Code Ann. tit. 7, §§ 6902(a), 6903(b), 6904. District of Columbia: D.C. Code Ann. §§ 45-26.2(a)(1), .2(e), .3(b). Florida: Fla. Stat. Ann. § 704.06(4) (“Conservation easements shall run with the land” and will not be “unenforceable on account of lack of privity of contract or lack of benefit to particular land or on account of the benefit being assignable.... [it] may be released by the holder of the easement to the holder of the fee.”) Georgia: Ga. Code Ann. §§ 44-10-2(a), -4(c), -5. Hawaii: Haw. Rev. Stat. Ann. § 198-5(a) (“conservation easements shall ... run with the land, whether or not such fact is stipulated in the instrument of conveyance or ownership, and no conservation easement shall be unenforceable on account of the lack of privity of estate or contract, or on account of [it] not being an appurtenant easement, or because such easement is a general easement”). Idaho: Idaho Code §§ 55-2102(1), -2103(2), -2104. Indiana: Ind. Code Ann. § 32-5-2.6-2(a), -3(b), -4 (follows the U.L.A except adds the provision that the statute “does not affect ... the termination of a conservation easement by agreement of the grantor and grantee”). Kansas: Kan. Stat. Ann. §§ 58-3811(b)-(c), -3812(b), -3813 (“unless the instrument creating it otherwise provides [it] may be revoked at grantor’s request”). Kentucky: Ky. Rev. Stat. Ann. §§ 382.810(1), .820(2), .830. Louisiana: La. Rev. Stat. Ann. § 9:1272 (“a conservation servitude may be created, conveyed, recorded, assigned, released, modified, terminated, or otherwise altered or affected in the same manner as other servitudes created by contract”). Maryland: Md. Code Ann., Real Prop. § 2-118(c)-(d) (a conservation easement in gross is valid, inheritable, and assignable; a conservation easement can “be extinguished or released, in whole or in part, in the same manner as other easements”). Michigan: Mich. Comp. Laws Ann. § 324.2141 (includes provisions similar to U.L.A. § 4(2), (6), & (7)). Minnesota: Minn. Stat. Ann. §§ 84C.02(a), .03(b), .04. Mississippi: Miss. Code Ann. §§ 89-19-5(1), -7(2), -9. Montana: Mont. Code Ann. § 76-6-210 (“shall [not] be unenforceable on account of lack of privity of estate or contract or lack of benefit to particular land or on account of such conservation easement not being an appurtenant easement or because such easement is an easement in gross”). Nevada: Nev. Rev. Stat. Ann. §§ 111.420(1), .420(3)(b), .420(2), .440.

New Hampshire: N.H. Rev. Stat. Ann. § 477.45 follows U.L.A. § 4; all doctrines that could normally terminate a restriction. New Mexico: N.M. Stat. Ann. § 47-12-3(A), -4(B), -5 (Excludes U.L.A. § 4(2)-(3)). North Carolina: N.C. Gen. Stat. § 121-38 provides that no conservation or preservation agreement shall be unenforceable because of (1) Lack of privity of estate or contract, or (2) lack of benefit to particular land or person, or (3) the assignability of the benefit to another holder or because they impose an obligation on either party. Ohio: Ohio Rev. Code Ann. § 5301.70 (“conservation easements are not unenforceable for lack of privity of contract or estate or lack of benefit to a particular dominant estate” and are assignable). Oregon: Or. Rev. Stat. §§ 271.715(2), .745, .755. South Carolina: S.C. Code Ann. §§ 27-8-30(A), -40(B), -50. South Dakota: S.D. Codified Laws §§ 1-19B-57, -58, -59. Texas: Tex. Nat. Res. Code Ann. §§ 183.002(a), .003(b), .004. Utah: Utah Code Ann. § 57-18-5 “A conservation easement may be terminated, in whole or in part, by release, abandonment, merger, nonrenewal, conditions set forth in the instrument creating the conservation easement, or in any other lawful manner in which easements may be terminated.” Virginia: Va. Code Ann. §§ 10.1-1010(F), -1014. Adds that the statute does not in any way limit the power of eminent domain possessed by any public body. In any such proceeding the holder of the conservation easement shall be compensated for the value of the easement. West Virginia: W. Va. Code §§ 20-12-5(b), -6. This article does not affect the power of a court to modify or terminate a conservation or preservation easement in accordance with the principles of law and equity consistent with the public policy of this article ... when the easement is broadly construed to effect that policy. Notwithstanding any provision of law to the contrary, conservation and preservation easements shall be liberally construed in favor of the grants contained therein to effect the purposes of those easements and the policy and purpose of this article. Wisconsin: Wis. Stat. Ann. § 700.40. Statutes that provide more specific standards for modification or termination or provide for compensation to the holder of the servitude in the event of modification or termination include: California: Cal. Civ. Code § 815.7, Enforcement of easement; injunctive relief, damages; costs. (a) No conservation easement shall be unenforceable by reason of lack of privity of contract or lack of benefit to particular land or because not expressed in the instrument creating it as running with the land. (b) Actual or threatened injury to or impairment of a conservation easement or actual or threatened violation of its terms may be prohibited or restrained, or the interest intended for protection by such easement may be enforced, by injunctive relief granted by any court of competent jurisdiction in a proceeding initiated by the grantor or by the owner of the easement. * * * (c) In addition to the remedy of injunctive relief, the holder of a conservation easement shall be entitled to recover money damages for injury to the easement or to the interest being protected thereby or for the violation of the terms of the easement. In assessing damages the loss of scenic, aesthetic, or environmental value to the real property subject to the easement may be taken into account in addition to the cost of restoration and other usual rules of the law of damages. (d) The court may award the costs of litigation, including reasonable attorney’s fees to the prevailing party in any action authorized by this section. Iowa: Iowa Code Ann. § 457A.2 (“A conservation easement shall be perpetual unless expressly limited to a lesser term, or unless released by the holder, or unless a change of circumstances renders the easement no longer beneficial to the public. No comparative economic test shall be used to determine whether a conservation easement is beneficial to the public.”) Maine: Me. Rev. Stat. Ann. tit. 33, §§ 477(1), 477(3)(B), 478(3), 479 follows the U.L.A but also provides that “a court may deny equitable enforcement of a conservation easement when it finds that change of circumstances has rendered that easement no longer in the public interest,” and that “no comparative economic test may be used to determine if a conservation easement is in the public interest.” Massachusetts: Mass. Gen. Laws. Ann. ch. 184, § 32 (restriction can be released only upon governmental approval after a public meeting, taking into consideration the public interest of the restriction, and whether it furthers any governmental programs). Mississippi: Miss. Code Ann. §§ 89-19-5(1), -7(2), -9, provides that upon termination or modification of the easement, “the holder of the conservation easement shall be compensated for the value of the easement.” Nebraska: Neb. Rev. Stat. Ann. §§ 76-2,113(1), -2,114, -2,115 provides that a conservation easement can only be released if the appropriate governmental body finds that it “no longer substantially achieves the conservation or preservation purpose for which it was created;” “the court may modify or terminate the easement only if it is no longer in the public interest to hold the easement or that the easement no longer substantially achieves the conservation or preservation purpose for which it was created. No comparative economic test shall be used to determine whether the public interest or the conservation or preservation purpose of the easement is still being served. No modification shall be permitted which is in excess of that reasonably necessary to remedy the deficiency of the easement;” and it “shall not be unenforceable for lack of privity of estate or of contract, for lack of benefit to a dominant estate,” or because it is assignable. New Jersey: N.J. Stat. Ann. § 13:8B-4, -5 provides that a public hearing must be held and approval must be received from the Commissioner of Environmental Protection--who will “take into consideration the public interest in preserving these lands in

their natural state, and any State, regional or local program in furtherance thereof, as well as any State, regional or local comprehensive land use or development plan affecting such property,” before a restriction can be released. Rhode Island: R.I. Gen. Laws § 34-39-3 follows U.L.A. §§ 4(2), (6), & (7) and adds that a conservation restriction shall not be unenforceable “on account of any other doctrine of property law which might cause the termination of the restriction.” Tennessee: Tenn. Code Ann. § 66-9-306 (conservation easement valid even if no privity of estate or contract or there is a lack of benefit to any other land, and “no conservation easement shall be held automatically extinguished because of violation of its terms or frustration of its purposes.”) Open-space land acts limit the conditions under which such lands may be converted to other use and may require substitution of other land for that which is converted. California: Cal. Gov’t Code §§ 51090 to 91, 51093 (dealing specifically with the termination of an open-space easement; providing that “an open-space easement may be terminated only by: (a) nonrenewal, or (b) abandonment; nonrenewal requires written notice 90 days in advance of the annual renewal,” otherwise automatically renewed; a governing body can find abandonment upon the petition of the owner of the servient estate if the government finds that “(1) no public purpose will be served by keeping the land as open space; and (2) abandonment is not inconsistent with the act; and (3) the abandonment is consistent with the local general plan; and (4) the abandonment is necessary to avoid a substantial financial hardship to the landowner due to involuntary factors unique to him.”) Pennsylvania: 32 Pa. Cons. Stat. Ann. § 5010. If the commonwealth determines that it is essential for the orderly development of an area to terminate or sell open space property interests acquired under this act ... the Commonwealth shall offer to transfer to the original property owner ... or the current property owner the property interests at a price equal to the price paid by the Commonwealth. Virginia: Va. Code Ann. § 10.1-1704 A. No open-space land, the title to or interest or right in which has been acquired under this chapter and... designated as open-space land under the authority of this chapter shall be converted or diverted from open-space land use unless (i) the conversion or diversion is determined by the public body to be (a) essential to the orderly development and growth of the locality and (b) in accordance with the official comprehensive plan for the locality ... and (ii) there is substituted other real property which is (a) of at least equal fair market value, and (b) or greater value as permanent open-space land than the land converted or diverted and (c) or as nearly as feasible equivalent usefulness and location ... as is the land converted or diverted. The public body shall assure that the property substituted will be subject to the provisions of this chapter.





§ 7.12 Modification And Termination Of Certain Affirmative Covenants

(1) A covenant to pay money or provide services terminates after a reasonable time if the instrument that created the covenant does not specify the total sum due or a definite termination point. This subsection does not apply to an obligation to pay for services or facilities concurrently provided to the burdened estate.

(2) A covenant to pay money or provide services in exchange for services or facilities provided to the burdened estate may be modified or terminated if the obligation becomes excessive in relation to the cost of providing the services or facilities or to the value received by the burdened estate; provided, however, that modification based on a decrease in value to the burdened estate should take account of any investment made by the covenantee in reasonable reliance on continued validity of the covenant obligation. This subsection does not apply if the servient owner is obliged to pay only for services or facilities actually used and the servient owner may practicably obtain the services or facilities from other sources.

(3) The rules stated in (1) and (2) above do not apply to obligations to a common-interest community or to obligations imposed pursuant to a conservation servitude.

Cross-References:

Section 1.6, Conservation Servitude and Conservation Organization Defined; § 1.8, Common-Interest Community Defined; § 2.6, Creation of Benefits in Gross and Third-Party Beneficiaries; § 3.1, Validity of Servitudes: General Rule; § 3.2, Touch-or-Concern Doctrine Superseded; § 3.5, Indirect Restraints on Alienation; § 3.6, Unreasonable Restraints on Trade or Competition; § 3.7, Unconscionability; § 7.10, Modification and Termination of a Servitude Because of Changed Conditions; § 7.11, Modification and Termination of a Conservation Servitude Because of Changed Conditions; § 8.1, Right to Enforce a Servitude; § 8.3, Availability and Selection of Remedies for Enforcement of a Servitude.

Comment:

a. Rationale. Affirmative covenants, particularly covenants to pay money, have always raised significant concerns over their potential to interfere with productive use of land. On various bases, courts have traditionally either prohibited them altogether or severely constrained the areas in which they might be created. Traditional constraints were imposed by requirements of the horizontal-privity and touch-or-concern doctrines, and by rules prohibiting creation of affirmative burdens in easements and equitable servitudes. Exceptions were then carved out for affirmative covenants that were particularly useful, like covenants to pay for maintenance of common facilities. Gradually, the traditional constraints were relaxed until only the touch-or-concern doctrine remained. Although that doctrine gave courts ample discretion to terminate affirmative covenants that pose unreasonable risks of harm, the vagueness, obscurity, and intent-defeating character of the doctrine led to its abandonment in this Restatement in favor of more discrete doctrines of invalidity and termination. See § 3.2, Comment b. The rules stated in this section are designed to replace the touch-or-concern doctrine with a more precisely tailored mechanism for terminating servitudes that are particularly likely over time to create undesirable burdens on land.

Two types of affirmative covenants are particularly likely to become unreasonable burdens on the land: perpetual covenants to pay for benefits received in the past; and covenants that require payment for services or facilities if payment is required without regard to use of the services or facilities, or if the service provider enjoys a monopoly position in relation to the burdened property owner. Perpetual covenants to pay for benefits received in the past are troublesome because, with the passage of time, they seem increasingly to be a tax for which the payor receives nothing and an undeserved windfall to the payee. Except in a jurisdiction that permits perpetual ground rents, a perpetual obligation imposed on a fee simple, for which no contemporaneous value is received, violates public policy. Under traditional covenants doctrine a covenant to make payments that were not related to obtaining services for the property did not run

with the land because it did not touch or concern the land and because the benefit was in gross. Under the principles set forth in Chapter 3, it may be possible to create such a covenant that will run with the land, but under the rule stated in subsection (1), it is subject to termination.

Covenants to pay for services or facilities are troublesome if there is no incentive for the service provider to control costs and there are no competitive pressures to keep prices reasonable. Covenants that require property owners to pay for services provided by the developer or another third party may present such problems, particularly where the obligation to pay is indefinite in duration or for a long term. If the property owner is obligated to pay only for services actually used and may practically obtain services elsewhere, competitive pressures will maintain a reasonable relationship between the obligation imposed on the landowner and the value of services received. However, if the landowner is obligated to pay without regard to use or cannot obtain the services or facilities elsewhere, the developer, or other service provider, is in a position to take unfair advantage of the property owners. This section provides a basis for judicial intervention to moderate problems caused by developer-created monopolies instead of invalidating the servitude.

The same concerns are not present if the payments are required as part of a scheme of reciprocal obligations imposed on land owners and the payments are made to an association comprised of the land owners. In this case, there is no need for the judicial intervention provided by this section. The payments will be devoted to purposes determined by the governing documents or the property owners and services will be adjusted to meet current needs and desires of the community. The reciprocal nature of the obligations and benefits provides a self-regulating mechanism. Subsection (3) provides that the rules stated in subsections (1) and (2) do not apply to obligations to a community association covered by Chapter 6 or to reciprocal obligations imposed pursuant to a common plan of development.

b. Application. The rule stated in subsection (1) applies to obligations to pay money or provide services that are unlimited in time or amount. The rule states that such covenants terminate after a reasonable period of time. What is reasonable will vary entirely depending on the circumstances, but might appropriately be arrived at by looking at the transaction out of which the covenant arose and striking a balance between the benefits and burdens probably expected by each of the parties, or by determining a reasonable return on the investment made by the covenantee. In the absence of any other reasonable basis for determining an end point, a court might adopt the 21-year period in gross from the rule against perpetuities. Parties desiring more certainty in their transactions can either specify a sum total or a definite point at which the obligation to pay ceases. Covenants to pay for services or facilities to be provided by someone other than a community association have substantial potential to become unreasonable over time. The covenantor, enjoying a monopoly position, has little incentive to tailor the services to the needs of the customers or to cut prices to take advantages of cost savings. Under the rule stated in this section, a court may modify or terminate the servitude when the obligation imposed becomes excessive in relation to the cost of providing the services or facilities, or to the value received by the servient estate.

In modifying or terminating a servitude under subsection (2), a court should be concerned with fairness to the covenantee as well as to the covenantor. The covenantee’s investments made in reasonable reliance on the validity of the covenant obligations as well as the current costs of providing the services or facilities should ordinarily be taken into account.

Illustrations:

1. Developer imposes a covenant on all lots in the Green Acres subdivision requiring payment of one percent of the sale price on each transfer of a fee simple and one percent of the value of leases for 10 years or longer to Developer, its successors or assigns. The covenant does not specify a total sum due or a termination point. If the covenant is valid under the rules stated in Chapter 3, it terminates after a reasonable time has passed. 2. Developer imposed an obligation on the purchasers of units in the Edgewater Condominiums to pay for recreational facilities owned by the developer and leased to the condominium association for 50 years. The lease included an escalation clause that tied the amount of rent to the cost-of-living index. After 10 years, the rent had increased significantly more than the costs of operating the recreational facilities, and similar facilities were available to the public generally at much lower prices. If the covenant is valid under the rules stated in Chapter 3 and if the lease was not terminated under § 6.19, it may be modified under this section. In the absence of other facts or circumstances, a court would be justified in modifying the covenant to reduce the payments to an amount that would eliminate the monopoly profits of the developer. 3. Developer constructed a water system for the Briarwood Subdivision, a development of summer homes, and imposed a covenant on each of the lots requiring that they take and pay for water from the first of May through the end of September each year, paying $35 per year. Twenty years after completion of the subdivision, the owner of Lot 3 converted the residence to year-round use and dug a well for water. In the absence of other facts or circumstances, a court would not be justified in terminating the covenant on the basis that it no longer provides value to the servient estate if allowing individual lot owners to opt out of the system would jeopardize Developer’s ability to continue to furnish water to the rest

of the lots in the subdivision or would increase costs to the remaining participants. If the developer has received a reasonable return on its original investment and the revenues generated by the covenant exceed the costs of operating the system, the court would be justified in modifying the covenant to reduce the amount of payment.

REPORTER’S NOTE

This section is new. It is made necessary by the freedom granted landowners to create affirmative covenant obligations, particularly those with benefits in gross under the rules stated in §§ 2.6 and 3.1. Instead of invalidating affirmative covenants wholesale as the old touch-or-concern doctrine was capable of doing, this new approach allows parties to use affirmative covenants, but retains the power of courts to terminate those that are likely to become unreasonable burdens over time. The facts in Illustration 3 are drawn from Eagle Enterprises, Inc. v. Gross, 39 N.Y.2d 505, 384 N.Y.S.2d 717, 349 N.E.2d 816 (1976), but the result is different. In Eagle, the court simply terminated the obligation on the covenant apparently without giving any express consideration to a fair return on the investment by the developer or the developer’s successor or the impact of piecemeal withdrawals on the water company’s ability to continue to provide service to the remaining lot. The court merely remarked in passing that no evidence had been presented that water would become unavailable to the other lots. Rasp v. Hidden Valley Lake, Inc., 519 N.E.2d 153 (Ind.Ct.App.1988) (covenant imposing water and sewer availability fees on lots that have not connected to water and sewer service are valid, but once developer recoups costs of installation and a reasonable profit, equitable principles may require application of fees to promote orderly development of utility facilities and reduction of rates rather than promotion of further lot sales; developer becomes constructive trustee accountable in appropriate equitable action). Richardson v. Mustang Fuel Corp., 772 P.2d 1324 (Okla.1989) (gas company not entitled to discontinue providing gas to landowners who granted company an easement for pipeline purposes in exchange for right to connect to pipeline and purchase natural gas at price comparable to that charged in the nearest city or town; right would continue so long as gas company did not abandon right of way). Wimberly v. Lone Star Gas Co., 818 S.W.2d 868 (Tex.Ct.App.1991) (burden of covenant allowing gas company to purchase water at price established in 1953 from wells on servient owner’s property so long as gas company operated Jacksboro compressor station ran with land; there is no requirement that covenant confer a benefit on land of servient owner or on land of beneficiary; touch and concern merely requires that the covenant touch upon the land; promise to provide water from wells on covenantee’s land touches on the land; contract is for a definite term, so long as Lone Star operates compressor station). Landau v. City of Leawood, 519 P.2d 676 (Kan.1974) (developer’s covenant limiting sewer assessments to $10 or $15 annually did not bind city as successor to sewer system; obligation had no stated duration and therefore is limited to reasonable time; limitations have become unreasonable and would make compliance by city with duty to provide sewer service economically unfeasible).





§ 7.13 Modification And Termination Of A Servitude Held In Gross

If it has become impossible or impracticable to locate the beneficiaries of a servitude held in gross, a court may modify or terminate the servitude with the consent of those beneficiaries who can be located, subject to suitable provisions for protection of the interests of those who have not been located.

Cross-References:

Section 2.6, Creation of Benefits in Gross and Third-Party Beneficiaries; § 4.6, Transferability of Servitude Benefits; § 5.8, Succession to Benefits and Burdens in Gross; § 7.1, Modification, Extinguishment, and Termination of Servitudes: General Rule.

Comment:

a. Rationale. Historically the law severely limited the creation and transfer of benefits in gross, in part because of concerns that difficulty in locating the beneficiaries would make it difficult or impossible to rid the land of obsolete or inconvenient servitudes. Because of increasing demand for benefits in gross on the part of utility companies, government agencies, conservation organizations, and others the law gradually shed the limits on creating and transferring benefits in gross. This Restatement takes the position that benefits in gross may be freely created and transferred because the problem of untraceable beneficiaries can be addressed directly through termination principles. This section provides the mechanism for doing so.

The rule stated in this section permits termination of a servitude held in gross with the consent of the beneficiaries who can be located, with suitable provision for protection of the interests of those who cannot be located. People who wish additional protection for their interests held in gross may notify the holder of the servient estate of their existence and whereabouts or, if permitted by the local recording act, by recording notice of their interests.

The rule stated in this section applies only to consensual termination of servitudes. In a contested proceeding, the doctrine of virtual representation should ordinarily be available to permit adjudication of the interests of beneficiaries of servitudes in gross who cannot be located.

Illustration:

1. O, the owner of Blackacre, conveyed a servitude for exclusive hunting and fishing rights on Blackacre for a 30-year period to Able. The conveyance provided that Able’s interest was both assignable and divisible into not more than 10 undivided shares. Fifteen years later, O wants to buy out the interests of the servitude holders so that the property can be developed. After a diligent search O is able to locate the holders of eight of the 10 shares Able sold, but has not located the other two. The eight agree on a price for releasing the servitude. In the absence of other facts or circumstances, a court should terminate the servitude after making suitable provision for payment to the other two shareholders in the event they appear to claim their interests within a reasonable time.

REPORTER’S NOTE

This section is new. It permits liberalization of the rules that previously prohibited creation of covenant benefits in gross and limited transferability of easements in gross. See discussions in Comments to §§ 2.6, 3.2, 4.6, and 5.8.

Restatement (Third) of Property (Servitudes) § 7.14 (2000)

Restatement of the Law — Property Restatement (Third) of Property: Servitudes

Current through June 2010



§ 7.14 Extinguishment Of Servitude Benefits Under Recording Act

The benefit of an unrecorded servitude, including a servitude created by prescription, implication, estoppel, or oral grant, is subject to extinguishment under an applicable recording act, except that, unless the statute requires a different result, the following servitude benefits are not subject to extinguishment:

(1) an appurtenant benefit created by oral grant under § 2.9, by estoppel under § 2.10, by prescription under § 2.16, or by necessity under § 2.15, if extinguishment of the benefit would result in depriving the dominant estate of rights of way for access or utilities necessary to reasonable enjoyment of the land within the meaning of § 2.15;

(2) an appurtenant benefit for underground utilities implied on the basis of prior use under § 2.12(4);

(3) a servitude that would be discovered by reasonable inspection or inquiry.

Cross-References:

Section 1.5, “Appurtenant,” “In Gross,” and “Personal” Defined; Chapter 2, Creation of Servitudes; § 4.5, Determining Whether a Servitude Benefit or Burden Is Appurtenant, In Gross, or Personal; § 7.4, Modification or Extinguishment by Abandonment; § 7.6, Modification or Extinguishment by Estoppel; § 7.7, Modification or Extinguishment by Prescription; § 7.10, Modification and Termination of a Servitude Because of Changed Conditions; § 7.15, Application of Recording Act to Modification or Termination of a Servitude; § 7.16, Servitudes Not Terminable Under Marketable-Title Acts.

Comment:

a. Rationale. Although recording acts are matters of local law, there are broad similarities among the states and a rich body of decisional law has grown up around the statutes. This section states rules that should be applied to the extent not prohibited by the terms of the local recording act. These rules are designed to clarify the often murky intersection between doctrines that permit creation of servitudes without use of a written document and the recording acts. The rules stated extend the protection recording acts afford subsequent takers against unrecorded interests to cover unwritten servitudes generally, but carve out exceptions in subsections (1) and (2) for servitudes whose termination would likely impose greater costs than benefits. Subsection (3) restates the traditional rule that a subsequent taker is not protected against interests that a reasonable inspection or inquiry would disclose.

The importance of the rules stated in this section lies in their impact on servitudes that are not readily discernible from an inspection of the property and the land records. The problems they resolve are most likely to involve servitudes for underground utilities and servitudes acquired by prescription or necessity that are not in current use. Currently unused servitudes acquired by implication, estoppel, or oral grant may also cause problems covered by the rules of this section.

Unwritten servitudes create problems in the application of recording acts because the holder of the servitude benefit has nothing to record, and, particularly in the case of underground utilities, may not be aware of the existence of the servitude. Even if the holder of the benefit is aware of the need to protect the servitude against a subsequent purchaser of the servient estate, the recording act may not provide a readily available means for doing so. A quiet-title action, while effective to create a record of the servitude, is expensive. On the other side, the purchaser of the servient estate usually has no practical means of discovering unwritten servitudes that are not apparent from an inspection of the property or land records. When the unwritten servitude is discovered, both parties may have legitimate claims to protection. If the purchaser of the servient estate prevails,

the dominant owner will be required to discontinue the use, purchase a new servitude from the owner of the former servient estate, or find an alternative, which may require constructing duplicate facilities in another location. If extinguishment of the servitude results in landlocking the dominant estate, the dominant owner may have recourse against a title insurer. On the other hand, if the owner of the dominant estate prevails, the servient owner’s expectations as to the extent of the property acquired are frustrated, the property’s value is reduced, and development plans may have to be altered. The servient owner may have some recourse under a title-insurance policy or the title covenants in deeds from prior owners.

Faced with the competing claims of dominant owners who face the costs of replacing access or utility easements and servient-estate owners who purchased without knowledge of a servitude, courts have reached varying results. Some protect the owner of the servient estate against all hidden servitudes. Others protect the owner of the servient estate against hidden servitudes created by implication, necessity, and estoppel, but not against servitudes created by prescription. Still others purport to protect servient owners against hidden servitudes, but in fact protect dominant owners by readily finding that the servitude would have been disclosed by reasonable inspection or inquiry.

Looked at from the perspective of either party, the rule that a bona fide purchaser takes subject to prescriptive servitudes but takes free of servitudes by implication, estoppel, and necessity makes little sense. The bona fide purchaser is equally unable to protecthimself or herself against all of them, and the damage suffered will be the same, no matter how the servitude was created. Although it can be argued that the person who acquired the servitude by implication, estoppel, oral grant, or necessity could have insisted that it be included in a deed, whereas the adverse user had no such opportunity, it should be remembered that these questions often arise between successors who had no opportunity to document the creation of the servitude. After an unwritten servitude has been created, the beneficiaries face similar obstacles, whether the servitude was created by prescription or one of the other methods. Unless the applicable statute permits a servitude beneficiary to give constructive notice by recording an affidavit, it is difficult to record anything that would constitute constructive notice of the interest (under a grantor-grantee index system, any instrument obtainable without joinder of the servient-estate owner would likely be a “wild deed” because not in the chain of title to the servient estate). Nor would the costs of a quiet-title action vary depending on the method of creation. For the holders of hidden unrecorded servitudes, the most practical means of obtaining protection against a subsequent bona fide purchase may be installation and maintenance of above-ground notices of the servitude’s existence.

Instead of drawing a distinction between servitudes based on the way they were created, the rules stated in this section distinguish among them on the basis of the function they serve. The basic rule is that all unrecorded servitude benefits, regardless of the manner of their creation, are subject to extinguishment under the recording act. The rationale is that societal welfare is generally enhanced by increasing the ability to determine land titles by resort to the public land records because it reduces the costs and increases the security of transactions in land. The benefits produced by subjecting all servitudes, whether written or unwritten, to extinguishment under the recording act will outweigh the social costs involved in the loss of useful servitudes and the measures knowledgeable servitude holders will take to protect against extinguishment.

Two of the three exceptions to the basic rule are based on the conclusion that the benefits from enhanced reliability of the land records would be outweighed by the costs of extinguishing the servitudes. Unwritten servitudes that provide necessary access or utilities to the dominant estate are not subject to being cut off by a bona fide purchaser, regardless of the manner of their creation, nor are servitudes created by implication from prior use that provide utilities to the dominant estate, because the costs would likely exceed the benefits. The third exception, which applies to written as well as to unwritten servitudes, and was originally created by judges and subsequently written into most recording acts, is grounded on the idea that it is unfair to permit a purchaser to take free of servitudes a reasonable inspection or inquiry would reveal.

b. Scope. The basic rule stated in this section, that unrecorded servitude benefits are subject to extinguishment under an applicable recording act, applies to all servitudes, whether they are created by express written instrument or some other method. The exception set forth in subsection (3) for servitudes that would be discovered by reasonable inspection or inquiry likewise applies to all servitudes. The scope of the exceptions set forth in subsections (1) and (2) is considerably more limited. Subsection (1) applies to servitudes that prevent a parcel from becoming landlocked, but were not created by a recordable document. Subsection (2) applies only to unwritten servitudes that provide utilities to a parcel that was formerly in common ownership with the servient estate.

This section does not address the questions surrounding the constructive notice given by recorded documents. The law on that subject is well developed elsewhere. Whether a recorded servitude is in the chain of title and hence gives constructive notice is a matter of local law, which varies. Of particular significance is the question whether a servitude burdening one parcel that is created in a deed conveying another parcel is in the chain of title of the burdened parcel. The majority view is that the chain of title includes all servitudes created by the common grantor prior to parting with title to the parcel in question; the minority view restricts the required title search to conveyances of the parcel in question. A variation on the

majority view limits the need to search for servitudes created in conveyances of other property to servitudes created for implementation of a common plan of development (see § 2.14 for a discussion of common-plan property).

c. Subsection (1): unwritten servitude providing rights reasonably necessary to enjoyment of dominant estate. The rationale for not permitting necessary access and utility easements to be cut off is similar to that which underlies creation of servitudes by necessity (see § 2.15): encouraging productive use of land, and avoiding the costs involved in requiring the easement holder to negotiate with the new owner of the servient estate to continue the easement or develop an alternative means of access. The servient-estate owner is afforded some protection by the provision in § 4.8(3) that permits relocation of an easement when necessary to permit normal use or development of the servient estate.

Illustrations:

1. Blackacre, an undeveloped landlocked parcel, is benefited by an easement by necessity to cross Whiteacre that was created at the time that ownership of the two parcels was severed. No road has been opened across Whiteacre to give access to Blackacre and there are no visible signs on Whiteacre that would give notice of the easement. Able, the owner of Whiteacre sells Whiteacre to Baker who has no notice of the easement by necessity. Unless the applicable recording act requires a different result, the benefit of the easement by necessity is not extinguished. 2. The owners of Sky Ranch obtained a prescriptive easement across Glendale Farm to a public highway by use of a private road from 1920 to 1945. In 1945 they obtained permission to use a more convenient private road across Fruitful Farm. Although the Sky Ranch owners ceased using the Glendale Farm road, they did not abandon it. The old road gradually became grown over and no signs of it remained when Developer purchased Glendale Farm and Fruitful Farm last year. Developer has now revoked the permission to use the road across Fruitful Farm. Sky Ranch will be landlocked if the prescriptive easement is terminated. Unless the applicable recording act requires a different result, the benefit of the prescriptive easement across Glendale Farm is not subject to extinguishment under the recording act. 3. Same facts as Illustration 2, except that the easement across Glendale Farm was created by a deed that was not recorded until after Developer acquired title. In the absence of other facts or circumstances, the easement across Glendale Farm is subject to extinguishment under the recording act because the deed could have been recorded. 4. Same facts as Illustration 2, except that a public road that gives direct access to Sky Ranch was opened in 1985. The prescriptive easement is subject to extinguishment under the recording act because extinguishment of the servitude benefit would not result in depriving the dominant estate of rights reasonably necessary to enjoyment of the land within the meaning of § 2.15. d. Subsection (2): underground utilities based on prior use created under § 2.12(4). The exception created by subsection (2) is limited by the scope of § 2.12(4) which only permits creation of a hidden servitude on the basis of prior use if it provides utility service to one of parcels formerly in common ownership. The rationale for protecting those servitudes from extinction under the recording act is the same as the rationale for permitting them to be created despite the fact that they are not visible: the economic burden of continuing the servitude will normally be relatively slight while the cost of relocating the utility lines will often be relatively high, and the duplication of facilities may entail wasteful expenditures. See § 2.12, Comment g, for a fuller discussion.

Illustrations:

5. In the 1940s, Lonnie built houses on three adjacent parcels (Lots A, B, and C) fronting on Highland Avenue. The houses were connected to a sewer line that ran through the rear 10 feet of each lot to a public sewer located in Washington Street to the west of Lot A. Lonnie then conveyed the houses to three different purchasers by deeds that made no mention of the sewer lines. Ownership of the three houses has subsequently changed hands several times, but no easements for sewer have been expressly created. Recently the sewer line broke on Lot A, the westernmost parcel. The owner of Lot A, a bona fide purchaser, claims the easement created at the time of severance of the three lots under the rule stated in § 2.12(4) was extinguished under the recording act. Unless the applicable recording act requires a different result, the servitude benefiting Lots B and C is not extinguished. 6. At the time Blackacre and Whiteacre were severed from common ownership, a driveway across Whiteacre was used to give access to the garage on Blackacre. Use of the drive was discontinued when the garage was moved, but the owner of Blackacre did not abandon the easement based on prior use obtained under the rule stated in § 2.12. When Able purchased Whiteacre no trace of the old driveway remained. Terry, the owner of Blackacre now wants to build another garage in the old location and use the old driveway. Blackacre abuts a public street. In the absence of other facts or circumstances, the conclusion would be justified that the benefit of the servitude for a driveway across Whiteacre was extinguished under the recording act. The servitude was neither for underground utilities serving Blackacre nor necessary to the reasonable enjoyment of Blackacre within the meaning of § 2.15. e. Subsection (3): servitude that would be discovered by reasonable inspection or inquiry. A subsequent purchaser takes subject to unrecorded interests of which the purchaser has actual or inquiry notice. Inquiry notice is notice of interests in the property that would be revealed by a reasonable inspection of the premises or by making an inquiry suggested by facts known

to the purchaser. A servitude implied from map or boundary references in a recorded deed, under the rule stated in § 2.13, is generally not extinguished under the applicable recording act because the servitude would be discovered on a reasonable search of the records.

Illustrations:

7. At the time Able purchased Whiteacre, a dirt road led from the public highway across Whiteacre to a locked gate on Blackacre. The road was built when Whiteacre and Blackacre were held in common ownership by Xerces and was used to provide access to the portion of the parcel later conveyed as Blackacre. Neither the conveyance that severed title nor any subsequent conveyance of Whiteacre mentioned an easement. In the absence of other facts or circumstances, the conclusion would be justified that Able took title subject to the easement because it would have been discovered by a reasonable inspection or inquiry. 8. Same facts as Illustration 7, except that all traces of the road had vanished by the time of Able’s purchase. If Blackacre will not be landlocked by extinguishment of the easement, in the absence of other facts or circumstances, the conclusion would be justified that Able took title free of the easement because it would not have been discovered by reasonable inspection or inquiry. 9. Same facts as Illustration 8, except that the easement was expressly created in the deed to Blackacre. No deed to Whiteacre mentions the easement, but it was listed on the preliminary commitment for title insurance obtained by Able before purchasing Whiteacre. In the absence of other facts or circumstances, the conclusion would be justified that Able had actual or inquiry notice and thus took subject to the easement. 10. The owners of Lots 4 and 10 which adjoined at the rear entered a written agreement to share the costs of constructing and maintaining a boundary wall between the two properties. The agreement provided that it was intended to bind successors and assigns of the parties. It was not recorded. When a sale of Lot 10 was pending, the owner of Lot 4 notified the prospective buyer of the existence of the agreement. In the absence of other facts or circumstances, the conclusion would be justified that the purchaser takes subject to the agreement.

REPORTER’S NOTE

The first Restatement of Property did not treat the application of recording acts to easements, but did include two sections on covenants. Section 533 provided that successors to land burdened by covenants are entitled to the protection of the recording acts, and § 539 provided that successors to land burdened by equitable servitudes are entitled to the defense of bona fide purchaser for value as well as to the protection of recording acts. See Gerald Korngold, Private Land Use Arrangements § 6.05 (1990); Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land ¶9.10 (1988). The generally applicable rules governing operation of recording acts apply to servitudes. Recording a servitude gives constructive notice of its existence to subsequent purchasers of the burdened estate. It is universally accepted that servitudes created by written instruments are subject to the recording acts and subsequent purchasers without notice take free of written but unrecorded servitudes. It is also universally accepted that, except under pure race statutes, a purchaser with actual or inquiry notice takes subject to an unrecorded servitude. The law is less clear on the application of recording acts to unwritten servitudes--those created by prescription, estoppel, oral grant, implication from prior use, and necessity. See Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land, Paragraphs 9-61-9-65 (1988) (split of authority on application to implied easements; generally accepted that prescriptive easements are outside recording system, but some authority extinguishes them in favor of bona fide purchaser). This section adopts the position that all servitudes, regardless of the manner of creation, are subject to recording acts, but carves out exceptions for a limited class of unwritten servitudes that provide necessary access and utility rights and for underground-utility easements created by prior use. Because courts have often applied the inquiry-notice doctrine quite liberally to avoid extinguishment of access and utility servitudes, application of the rules stated in this section should produce results similar to those reached in many cases. The position that interests acquired by prescription are subject to extinguishment under recording acts is also taken in § 3-202 of the Uniform Simplification of Land Transfers Act. The problems presented by hidden easements are discussed in Joel Eichengrun, The Problem of Hidden Easements and the Subsequent Purchaser Without Notice, 40 Okla. L. Rev. 3 (1987). The author concludes that courts tacitly employ an economic-balancing test in these cases, and that the decision to hold a subsequent purchaser bound by a hidden easement often occurs where the costs to the dominant owner of replacing the easement would normally exceed the costs to the servient owner of leaving the existing easement in place. The author suggests that more consistent results would be achieved by making the calculus explicit, and that explicit recognition of the economic problem could lead to more frequent use of the damage remedy, which would minimize the loss and lead to a more efficient resource allocation. Enjoining interference with the easement unless the dominant owner compensates the servient owner for damage caused by the easement would minimize the amount of unavoidable loss in these situations where neither party could realistically have avoided the loss. Id. at 27-28. Annot., Extinguishment of Easement by Implication or Prescription by Sale of Servient Estate to Purchaser Without Notice,

174 A.L.R. 1241 (1948). Annot., Recorded Real Property Instruments Charging Third Party with Constructive Notice of Provisions of Extrinsic Instrument Referred to Therein, 89 A.L.R.3d 901 (1979). There is authority that even if an easement for an underground step footing could be established by prescription (which the court denied because the use was not open or notorious), it would be extinguished on conveyance of the servient estate to a purchaser without notice. Kayfirst Corp. v. Washington Terminal Co., 813 F.Supp. 67 (D.D.C.1993). Operation of recording acts in general, Comments a and b.

Notice Irrelevant Under Pure-Race Statute

Under a pure-race statute, the first to record takes precedence without regard to notice. Hendrix v. Farrington, 490 So.2d 265 (La.1986) (easement created by contract for sale but not included in deed was extinguished by vendor’s transfer of servient estate to his son despite son’s knowledge of easement and grantee’s open use of easement; recording is essential for effectiveness against third parties; actual knowledge of unrecorded interests by third parties is immaterial; rule produces harsh results but first purchaser could protect himself by recordation; right to demand easement by necessity to enclosed estate terminates when grantor’s retained property is transferred to third person).

Under Notice and Race-Notice Statutes Purchasers with Notice Bound

Subsequent purchasers of property burdened by servitudes take subject to servitudes of which they have actual, inquiry, or constructive notice under the recording acts. McGuire v. Bell, 761 S.W.2d 904 (Ark.1988) (landowner is bound by restrictions that appear in his chain of title even though the instrument conveying title to him does not contain the restrictions; statement that grantee takes subject to recorded restrictions in deed describing property conveyed with reference to plat gives grantee notice of all covenants contained in bills of assurance filed for the plat). Hagan v. Sabal Palms, Inc., 186 So.2d 302 (Fla.Dist.Ct.App.1966) (purchaser of subdivision lot subjected to restriction that no building be used for any purpose other than as dwelling had notice of restriction created by recorded deed from developer to first purchaser, from deeds to other lots in subdivision, and from uniformly residential character of the subdivision). Hendley v. Overstreet, 253 Ga. 136, 318 S.E.2d 54 (1984) (tax-sale purchasers of subdivision lots dedicated in declaration of restrictive covenants to the use of a park or recreational area for subdivision residents took subject to easements; the recorded covenants give constructive notice). Sun Valley Iowa Lake Ass’n v. Anderson, 551 N.W.2d 621 (Iowa 1996) (developer’s agreement to convey common areas to association no later than the end of its involvement in the project bound successor that purchased developer’s remaining lots and common areas; successor bore the burden to establish status of bona fide purchaser; principal shareholder’s knowledge of unrecorded transfer agreement imposed duty on corporate purchaser to make further inquiry). Blessey v. McHugh, 664 So.2d 115 (La.Ct.App.1995) (once recorded, building restrictions bind subsequent acquirers of the burdened property). Myers v. Salin, 431 N.E.2d 233 (Mass.Ct.App.1982) (notation on certificate of title that land is subject to agreements not to erect buildings south of the way and rights of access to beach contained in 3 deeds identified with names of grantors and grantees and recording information gave notice of rights of plaintiffs). Greenspan v. Rehberg, 224 N.W.2d 67 (Mich.Ct.App.1974) (trial court’s finding that purchaser had notice of covenant to share expenses of maintaining road was fully supported by evidence that title passed from original covenantors and covenantees to purchaser in essentially a single transaction, that purchasers performed part of the covenant, and that a document containing the covenant was included in documents referred to in their escrow agreement). Lake St. Louis Community Ass’n v. Ringwald, 652 S.W.2d 158 (Mo.Ct.App.1983) (grantee of deed to lot at Lake Saint Louis, plat 6, subject to “easements and Declarations of Covenants and Restrictions of record” had constructive notice of declaration of covenants previously recorded by grantor, Lake Saint Louis Estates Company, even though land in plat 6 was not described in Declaration; declaration contemplated additions to the land described and provided that land added would be bound by terms of the Declaration). Runyon v. Paley, 416 S.E.2d 177 (N.C.1992) (actual knowledge is not sufficient to bind a purchaser to a covenant running with the land; restrictive covenants are not enforceable either at law or in equity against a subsequent purchaser unless notice of the covenant is contained in an instrument in chain of title; identification of beneficiary entitled to enforce covenant is not necessary to give notice of restriction contained in chain of title). Monday Villas Prop. Owners Ass’n v. Barbe, 598 N.E.2d 1291 (Ohio Ct.App.1991) (even though purchaser only received copies of declaration and bylaws at closing, and did not know of rule prohibiting installation of antennas, purchaser had notice of prohibition from provision in declaration that no structures above the ground of the commons should be permitted; the only antennas that had been previously permitted were television antennas; injunction requiring removal of defendant’s 3 ham-radio antennas upheld). Porter v. Kalas, 409 Pa.Super. 159, 597 A.2d 709 (1991) (purchaser of land subject to a servitude takes subject to the servitude that appears in the line of title even though the purchaser has no actual knowledge; a grantee is chargeable with

notice of everything affecting title that could be discovered by an examination of the deeds and records). Owens v. Holzheid, 335 Pa.Super. 231, 484 A.2d 107 (1984) (subsequent purchasers had constructive notice of easement from language in earlier deed in their chain of title recognizing existence of easement burdening the property). Southall v. Humbert, 685 A.2d 574 (Pa.Super.Ct.1996) (servient owner had constructive notice of buried water line from clause in original grantor’s deed reserving right to himself, his heirs and assigns, to lay and maintain water lines on lot granted; grantee chargeable with notice of everything affecting title that could be discovered by examination of the records of the deeds or other muniments of title of grantor). Hicks v. Loveless, 714 S.W.2d 30 (Tex.Ct.App.1986) (shelter rule applies; purchaser who takes without notice of the restrictions can transfer lot free of restrictions to grantee who has notice of the restrictions; where restrictions were executed immediately prior to execution of deed to first purchaser, first purchaser did not have constructive notice of restrictions but did have actual notice of existence of restrictions and opportunity to read them at the closing; restrictions were in chain of title even though recorded after title was transferred to first purchaser; restrictions were recorded before deed to first purchaser recorded).

Improperly Recorded Instrument

An instrument that is not properly recorded may not give constructive notice: Pollock v. Ramirez, 870 P.2d 149 (N.M.Ct.App.1994) (copy of declaration originally recorded did not give constructive notice because not acknowledged; properly acknowledged copy of declaration subsequently filed did not give notice because it was recorded immediately after deed transferring title to subdivision to another; restrictions cannot be placed on land not owned by declarant). Cypress Gardens, Ltd. v. Platt, 952 P.2d 467 (N.M.Ct.App.1997) (recorded but unacknowledged covenants can be enforced as equitable servitudes against purchasers with actual knowledge of covenants). Patterson v. Cook, 655 S.W.2d 955 (Tenn.Ct.App.1983) (registered declaration of restrictions did not give constructive notice because not acknowledged; acknowledgment is required before instrument can be legally registered).

Chain of Title

There are two lines of authority on the question whether a servitude created by a common grantor in the deed to the benefited parcel is in the chain of title of the burdened lot. The majority of states apply the broader chain of title following Finley v. Glen. A minority uses the narrower chain-of-title concept, following Glorieux v. Lighthipe. Finley v. Glenn, 303 Pa. 131, 154 A. 299 (1931) (lot owner took with constructive notice of grantors’ covenant to impose the same building restrictions on all their other lots fronting on Mildred Avenue even though grantors’ deed to him did not impose restrictions; search of records for grants from common grantor would have revealed deed to other lots in which restrictions were imposed; grantee has notice of contents of deeds even though description is of different property). Glorieux v. Lighthipe, 88 N.J.Law 199, 96 A. 94 (1915) (a purchaser of other land from the same grantor is not charged with notice of building restrictions contained in earlier deed not in chain of title). Steuart Transp. Co. v. Ashe, 304 A.2d 788 (Md.Ct.App.1973) (when uniform plan is established subsequent purchaser is charged with constructive notice of restrictions imposed in prior deeds whether or not in the chain of title to purchaser’s lot). Waldrop v. Town of Brevard, 62 S.E.2d 512 (N.C.1950) (plaintiffs are bound by servitude created in grant to another parcel that precludes successors to any of grantor’s remaining land from objecting to use of granted parcel as garbage dump despite authority that the restriction is not in their chain of title; easement is different from covenant and waiver of damage claims incident to grant of easement; grantees take title subject to recorded easements granted by predecessors in title even if not referred to in the deeds to their parcels). Spring Lakes, Ltd. v. O.F.M. Co., 467 N.E.2d 537 (Ohio 1984) (easement created in deed to dominant estate is outside chain of title to servient estate; purchaser of servient estate without notice takes free of easement for use of sewer system created in 1975 deed). Waynesboro Village, L.L.C. v. BMC Properties, 496 S.E.2d 64 (Va.1998) (restriction on grantor’s remaining land created in 1989 deed to 4-acre parcel bound successor to grantor’s remaining land; deed was in chain of title to grantor’s remaining land). Kentucky has recently moved from following the majority rule to a modified minority-rule position. Oliver v. Schultz, 885 S.W.2d 699 (Ky.1994) (covenant forbidding mobile homes appeared in deeds to 4 of 9 lots originally conveyed from a 70-acre tract known as Twin Lakes Subdivision; Oliver purchased 2 of the tracts, one of which had restrictions in a prior deed. The original deed to the other tract did not contain the restriction, but stated that it fulfilled an unrecorded contract for the deed; the contract for the deed contained the restriction. The court held that the provision in the contract did not create a restriction that ran with the land because it was not recorded. “... even actual notice of a restriction created between parties by an unrecorded contract is insufficient to place a subsequent grantee on notice of the restriction.” To the extent that Paine v. LaQuinta Motor Inns, 736 S.W.2d 355 (Ky.Ct.App.1987), reached a different conclusion, the court overruled it. The court also modified the rule in Bishop v. Rueff, 619 S.W.2d 718 (Ky.Ct.App.1981), so that covenants appearing in deeds to other lots bind subsequent purchasers only where a subdivision plat, deed of restrictions, or some other

instrument of record is filed that would place an ordinary and reasonably prudent attorney performing a title search on notice of the restrictions. In this case, the court found that there was no general plan of restrictions because the restrictions included in individual deeds did not refer to other lots and no plat or other document indicating a general plan was ever filed. The court made its ruling prospective only because it constituted “a critical change in the enforcement of restrictive covenants in Kentucky.” With respect to previously litigated covenant disputes, they were res judicata to the extent of the final holding, but, on transfer of the property, the rule established in this case was to apply).

Subsequent Purchasers Without Notice Generally Take Free of Hidden Servitudes, Unless Exceptions Apply.

I.R.T. Prop. Co. v. Sheehan, 581 So.2d 591 (Fla.Dist.Ct.App.1991) (even if grantee had understanding with grantor that he would have right to continue to park on grantor’s retained shopping-center land, successor owner of shopping center is not estopped to deny existence of easement where there is no proof of fraud, misrepresentation, or other affirmative deception on its part). State v. Cinko, 292 N.E.2d 847 (Ind.Ct.App.1973) (state had no right to enjoin landowners from interfering with state’s removal of advertising sign located on their property but claimed subject to highway right of way; landowners without actual knowledge took free of state’s alleged unrecorded right-of-way grant that was not marked on the land; statement in deed that rights were subject to the rights of the public in existing highways did not give constructive notice of the claim). Pollock v. Ramirez, 870 P.2d 149 (N.M.Ct.App.1994) (finding that defendants purchased lot without notice of covenant upheld where defendant testified she did not know of covenant, at time of purchasing lot; recorded declaration did not give constructive notice because not acknowledged; there was no inquiry notice from appearance of neighborhood because defendants built the first house in the subdivision). Columbia Gas Transmission Corp. v. Bennett, 71 Ohio App.3d 307, 594 N.E.2d 1 (1990) (purchaser of lot in part of plat located in section 20 did not have constructive notice of easement for high-pressure natural-gas pipeline erroneously described as located in section 21 and 22 and took free of easement). Russakoff v. Scruggs, 241 Va. 135, 400 S.E.2d 529 (1991) (subsequent bona fide purchaser of servient estate without notice of easement implied on basis of prior use takes free of easement).

View That Prescriptive Easements Are Not Within Recording Acts

The traditional rule that a prescriptive easement once acquired is not divested by a subsequent transfer of the servient estate is traceable to Wissler v. Hershey, 23 Pa. 333 (1854). There is an extended discussion of the rule, followed by its adoption in McKeon v. Brammer, 29 N.W.2d 518 (Iowa 1947). Joel Eichengrun, in The Problem of Hidden Easements and the Subsequent Purchaser Without Notice, 40 Okla. L. Rev. 3, 21 (1987), states that most courts apply the rule to prescriptive pipeline easements, citing Jones v. Harmon, 175 Cal.App.2d 869, 1 Cal.Rptr. 192 (1959); O’Connor v. Brodie, 153 Mont. 129, 454 P.2d 920 (1969); Oppold v. Erickson, 267 N.W.2d 570 (S.D.1978), although a few hold the easement extinguished, citing Childress v. Richardson, 12 Ark.App. 62, 670 S.W.2d 475 (1984); City of Corpus Christi v. Krause, 584 S.W.2d 325 (Tex.Civ.App.1979). Crescent Harbor Water Co. v. Lyseng, 51 Wash.App. 337, 753 P.2d 555 (1988) (subsequent purchaser took subject to easement for water system comprised of well, pump, and pipes serving other parcels in the development; prescriptive easements are not subject to recording acts and subsequent bona fide purchaser is not protected against them; statute of limitations would not serve its function if adverse user was required to keep flag flying forever; and easement would be of little value if extinguished by transfer of the servient estate). Subsection (1): unwritten servitude providing rights reasonably necessary to enjoyment of dominant estate, Comment c. Canali v. Satre, 688 N.E.2d 351 (Ill.Ct.App.1997) (statute of limitations does not apply to claim of easement by necessity). Finn v. Williams, 33 N.E.2d 226 (Ill.1941) (easement by necessity may lie dormant through several transfers of title, yet pass with each transfer as appurtenant to the dominant estate and may be exercised at any time by the titleholder). Johnson v. Mays, 216 Neb. 890, 346 N.W.2d 401 (1984) (purchaser of land burdened with openly used driveway that was way of necessity takes subject to easement by necessity). Subsection (2): underground utilities based on prior use created under § 2.12(4), Comment d. Jones v. Harmon, 175 Cal.App.2d 869, 1 Cal.Rptr. 192 (1959) (prescriptive easement for underground irrigation pipe not extinguished by subsequent bona fide purchase; prescriptive easements are outside of recording acts, and in any event, above-ground water control devices 50 feet from boundary line on dominant estate gave notice). Kirma v. Norton, 102 So.2d 653 (Fla.Dist.Ct.App.1958) (whether easement for subdivision sewer line draining into river through defendant’s lot was created by implication or prescription, defendant took subject to the easement because the facts that the pipe protruded 8 inches through the seawall and that his grantor told him it was a sewer line should have put him on inquiry; he knew or should have known the nature of the pipe). McKeon v. Brammer, 29 N.W.2d 518 (Iowa 1947) (prescriptive easement for tile drain line not subject to extinguishment under recording act). Silvercrest v. St. Christopher-Ottile, 600 N.Y.S.2d 95 (App. Div. 1993) (purchaser of lot traversed by sewer line did not take subject to implied easement where neither party knew the line was located there and existence of city sewer lines adjacent to

property made easement unnecessary). Otero v. Pacheco, 94 N.M. 524, 612 P.2d 1335 (1980) (subsequent purchaser takes subject to implied easement for lateral sewer line serving house next door; fact that sewer is hidden underground does not negate its character as an apparent condition; a reasonably prudent purchaser would have inquired as to the existence of a sewer line crossing the property). Campbell v. Great Miami Aerie No. 2309, 472 N.E.2d 711 (Ohio 1984) (subsequent purchaser took free of easement for flowage of sewage into holding and septic-tank system on servient estate that was no longer approved by state environmental-protection agency; purchaser had no actual knowledge of easement and inspection by master plumber and Chief Plumbing Inspector of County Health District failed to reveal dominant estate’s use of system). Fossum Orchards v. Pugsley, 77 Wash.App. 447, 892 P.2d 1095 (1995) (implied easement on Lots 1 and 2 for buried pipeline that delivers water from irrigation system to orchard property on Lot 3 not extinguished by subsequent bona fide purchase; no alternative source of water readily available; purchaser of Lot 1 had knowledge sufficient to cause a prudent person to make an inquiry from existence of weir and water box on his property, and fact that his son who owned Lot 2 knew the pipe had extended to Lot 3 at the time of his purchase because he had disconnected it; plat filing referred to the presence of irrigation easements, and the owner of adjacent property knew of the presence of irrigation pipe extending from Lot 1 to Lot 3. Since the owner of Lot 2 purchased directly from the subdivider, and the easement arose at the time of his purchase, he is not a subsequent purchaser). Subsection (3): servitude that would be discovered by reasonable inspection or inquiry, Comment e. Polhemus v. Cobb, 653 So.2d 964 (Ala.1995), opinion after remand, 671 So.2d 1379 (1995) (unrecorded contract or agreement may create easement binding on successors when easement is open and obvious and sufficient to put successors on notice; fact that purchaser had seen people using the boat ramp and received only a quitclaim deed for the 2 lots next to the boat ramp were sufficient to put her on inquiry notice). Methonen v. Stone, 941 P.2d 1248 (Alaska 1997) (knowledge of existence of well and water lines running from the well to adjoining lots in subdivision was sufficient to place purchaser on inquiry notice of unrecorded community water-system agreement; reliance on statements of vendor and real-estate agent does not excuse purchaser from inquiry of neighboring owners). Federoff v. Pioneer Title & Trust Co., 803 P.2d 104 (Ariz.1990) (recorded covenants entered into between adjacent landowners were effective against subsequent grantees of each parcel even though subsequent deeds omitted any mention of covenants; successors had constructive notice from the record and actual notice from references to covenants in preliminary title report and subdivision report; function of recording statutes is to protect persons who deal with interests in land by giving notice). Gates Rubber Co. v. Ulman, 214 Cal.App.3d 356, 262 Cal.Rptr. 630 (1989) (purchaser has notice of rights that would be revealed by inspection of unrecorded instrument referred to in recorded document; subsequent purchaser took free of lessee’s unrecorded option to purchase leased premises where written lease made no reference to option and recorded short-form lease referred only to lease, not to separate option agreement; where tenant’s possession is consistent with a recorded lease that does not refer to unrecorded option to purchase and there are no circumstances indicating the tenant has additional rights, the purchaser has no duty to make inquiry of the tenant). Kytasty v. Godwin, 102 Cal.App.3d 762, 162 Cal.Rptr. 556 (1980) (purchaser took subject to implied easement for roadway where she had used the road to view the property before purchasing it and knew that it was passable and extended beyond the property she purchased). Gilpin Investment Co. v. Blake, 712 P.2d 1051 (Colo.Ct.App.1985) (purchaser took subject to existing unwritten easement created by estoppel for television cable and service path; purchaser of real property takes title subject to any open, visible, continuous, permanent easement). Williams Island Country Club, Inc., v. San Simeon at the California Club, 454 So.2d 23 (Fla.Dist.Ct.App.1984) (subsequent purchaser took subject to implied easement for golf-cart crossing; visible use at time of purchase put purchaser on inquiry notice). Dixon v. Feaster, 448 So.2d 554 (Fla.Dist.Ct.App.1984) (implied ways of necessity are not found where existing access is simply “impracticable” because a way that is not established physically and visibly on the ground does not give notice of its existence to subsequent purchasers; neither a careful examination of the chain of title or the servient tract will necessarily or usually give notice of facts that would put a cautious title examiner or prudent person on notice of the potential claim). Leffler v. Smith, 388 So.2d 261 (Fla.Dist.Ct.App.1980) (purchaser of lot takes subject to easements for recreational use granted to all lot owners in the subdivision by prior deed; even if deed was ineffective under old common-law rule prohibiting creation of easements in favor of third parties, reference in deed to easement was sufficient to give notice of facts that would have been discovered if inquiry were made; simple inquiry would have shown continuous use of the property by the lot owners for many years). Carroll v. Pierce, 221 Ga.App. 805, 472 S.E.2d 560 (1996) (jury instruction that “a purchaser will be charged with notice of an easement where an inspection of the premises would have readily revealed such physical facts as would put him upon inquiry in the exercise of ordinary diligence” accurately reflects Georgia law which requires the factfinder to determine whether the purchaser rather than a reasonable person would have been put on notice by an inspection of the premises). Enderle v. Sharman, 422 N.E.2d 686 (Ind.Ct.App.1981) (purchaser of land subject to previously created visible easement

implied on basis of prior use takes subject to the easement). Newell v. Standard Land Corp., 297 N.E.2d 842 (Ind.Ct.App.1973) (purchaser takes free of unrecorded implied reciprocal restrictions; observations of the nature of the area not sufficient to give constructive notice of restrictions). Halverson v. Turner, 268 Mont. 168, 885 P.2d 1285 (1994) (reference to recorded Certificate of Survey establishing subdivision in description of property conveyed by quitclaim deed gave notice of easement shown on survey that burdened property conveyed). Kiler v. Beam, 539 A.2d 1138 (Md.Ct.Spec.App.1988) (case remanded for determination whether purchaser had actual or constructive knowledge of easement holder’s use of roadway; prescriptive easement not enforceable against subsequent purchaser without actual or constructive notice). In re Willmus, 568 N.W.2d 722 (Minn.Ct.App.1997) (reference in registered land survey to easement did not give notice to purchaser of registered land; good-faith purchaser is protected against encumbrances mentioned in a descriptive document but not explicitly noted on certificate of title). Kohlleppel v. Owens, 613 S.W.2d 168 (Mo.Ct.App.1981) (purchaser of land burdened by prescriptive easement that is apparent on ordinary inspection of the premises takes subject to the easement). Fortenberry v. Bali, 668 S.W.2d 216 (Mo.Ct.App.1984) (plaintiff not entitled to easement of necessity because plaintiff’s land appears to be benefited by prescriptive easement; easement was not extinguished by third-party purchase of servient estate because an ordinary inspection would have revealed the existence of the roadway; gravel was clearly visible at the time of the purchase). Riddock v. City of Helena, 212 Mont. 390, 687 P.2d 1386 (1984) (prescriptive easement is not divested by subsequent transfer of servient estate; landowner’s lack of knowledge of the underground line is matter that must be settled between the purchasers and their grantor). Court relied on O’Connor v. Brodie, 153 Mont. 129, 454 P.2d 920 (1969). Thomas v. Barnum, 211 Mont. 137, 684 P.2d 1106 (1984) (purchaser of property subject to visible roadway easement acquired by prescription takes subject to easement). How v. Baker, 388 N.W.2d 462 (Neb.1986) (purchaser took subject to improperly recorded restrictions; reference in deed to restrictions in records of clerk’s office sufficient to put purchaser on inquiry even though filing restrictions with clerk was not proper and would not give constructive notice). Johnson v. Mays, 216 Neb. 890, 346 N.W.2d 401 (1984) (purchaser of land burdened with openly used driveway that was way of necessity takes subject to easement by necessity). City of New York v. Delafield 246 Corp., 662 N.Y.S.2d 286 (App.Div.1997) (purchaser took subject to servitudes created in recorded declaration and agreement). Tiller v. Hinton, 19 Ohio St.3d 66, 482 N.E.2d 946 (1985) (subsequent purchaser took free of easement for access created in unrecorded deed even though ruling resulted in landlocking dominant parcel; record adequately supported trial court’s finding that there was no evidence of open use of the easement; dominant owner could have avoided loss by recording). Renner v. Johnson, 207 N.E.2d 751 (Ohio 1965) (subsequent purchaser takes free of implied easement for sewer and water lines created in 1914 to serve house next door where no signs indicate the existence of the lines to a casual observer and nothing in the record suggests that the parties or anyone in the neighborhood knew of their existence; enforceability of easement implied on basis of prior use rests on grantee’s equitable right to reformation of the deed to include the easement; equitable right should not be enforceable against a bona fide purchaser without notice; prescriptive easements are different because not dependent on mere equitable right; dominant owner could have protected himself by requesting a deed or seeking reformation; long-established policy of the state exemplified by statute of frauds and recording acts requires protecting bona fide purchaser against implied easement). Kuhn v. Heerwagen, 604 P.2d 416 (Or.Ct.App.1979) (purchaser of servient estate had notice of easement previously created by implication from prior use; access road was visible and apparent; seller testified that she expressly told purchaser of easements, and it should have been apparent that the 2 parcels accessed by the road were occupied, at least making it reasonable for plaintiffs to have inquired more closely about status of the road going through the property than they claim to have done; plaintiffs did not make a reasonably prudent inquiry). Townsend v. Yankton Super 8 Motel, Inc., 371 N.W.2d 162 (S.D.1985) (fact that purchaser was aware that a continuous parking lot served both motel and restaurant was sufficient to give inquiry notice of existence of unrecorded easement for parking; inquiry as to location of property lines would have resulted in conclusion that some parking arrangement existed). Louden v. Apollo Gas Co., 417 A.2d 1185 (Pa.Super.Ct.1980) (purchaser took subject to unrecorded easement for main natural-gas transmission line; inspection revealed a 20-foot wide cleared and mowed swath traversing the property for 3,600 feet in addition to 3 known wells with 10-foot wide cleared and mowed swaths to each well from the 20-foot swath, and gate boxes at the junction of branch and main lines; purchaser’s duty to inquire into full extent of appellant’s activity was not excused by his assumption that all the lines were part of a gathering system instead of including a main transmission line). Wiege v. Knock, 293 N.W.2d 146 (S.D.1980) (right of servient owner to use water from well despite failure to reserve right in grant of easement for water from the well to others was not cut off by subsequent purchase of dominant estate; a reasonably careful inspection of the well would have revealed that it served the house on the servient estate). Russakoff v. Scruggs, 400 S.E.2d 529 (Va.1991) (purchaser of lake took subject to subdivision lot owners’ implied easements for use of lake for docks, piers, sprinkler systems and recreational uses; use for sprinkler systems and other

purposes was apparent).

Publicly Held Servitudes May Not Be Subject to Extinguishment Under Recording Acts

Beach v. City of Fairbury, 207 Neb. 836, 301 N.W.2d 584 (1981) (city’s prescriptive easement for collector line for storm sewer was not extinguished by subsequent bona fide purchase). Kimco Add’n, Inc. v. Lower Platte So. Nat. Res. Dist., 440 N.W.2d 456 (Neb.1989) (action for inverse condemnation is appropriate remedy for owner of servient estate who purchased without notice of unrecorded easement held by entity with power of eminent domain; case remanded for trial on question of what inspection would have revealed about drainage-canal easement).

Action Under Torrens Act May Extinguish Servitudes

In states with a Torrens Act, servitudes may be extinguished if not shown on the registered title and proper procedures are followed: Rael v. Taylor, 876 P.2d 1210 (Colo.1994) (en banc) (usufructuary rights including grazing, hunting, fishing, timbering, firewood gathering, and recreation could not be extinguished in action to register title under Torrens Act unless landowner exercised reasonable diligence to identify all reasonably ascertainable persons who claimed interests in the property).

STATUTORY NOTE


Uniform Simplification of Land Transfers Act

USOLTA: Section 3-202 Title Acquired by Purchaser for Value Who Has Recorded. (a) Except as provided by this Article, in addition to the interests a purchaser acquires under Section 3-201, a purchaser for value who has recorded his conveyance also acquires the real estate free of any subsisting adverse claim, whether or not the transferor had actual authority to convey, unless the adverse claim is: (1) created or evidenced by a document recorded before the conveyance to the purchaser is recorded; (2) a use or occupancy inconsistent with the record title to the extent the use or occupancy would be revealed by reasonable inspection or inquiry; (3) one of which the purchaser had knowledge at the time his interest was created as provided in § 3-205; * * * [other exceptions for forgery, lack of capacity, fraud, spousal claims, governmental interests, etc. omitted].




Chapter 8. Enforcement Of Servitudes

§ 8.3 Availability And Selection Of Remedies For Enforcement Of A Servitude

(1) A servitude may be enforced by any appropriate remedy or combination of remedies, which may include declaratory judgment, compensatory damages, punitive damages, nominal damages, injunctions, restitution, and imposition of liens. Factors that may be considered in determining the availability and appropriate choice of remedy include the nature and purpose of the servitude, the conduct of the parties, the fairness of the servitude and the transaction that created it, and the costs and benefits of enforcement to the parties, to third parties, and to the public.

(2) Except when failure to enforce servitudes in common-interest communities or general-plan developments provides the basis for modification or termination due to changed conditions under § 7.10, property owners or an association of property owners may enforce the servitudes against subsequent similar violations by the same or different parties unless, under the circumstances then prevailing, enforcement would be unreasonable or inequitable.

Cross-References:

Section 1.7, General-Plan Development Defined; Chapter 2, Creation of Servitudes; Chapter 3, Validity of Servitude Arrangements; Chapter 4, Interpretation of Servitudes; Chapter 5, Succession to Benefits and Burdens of Servitudes; § 6.2, Common-Interest-Community Definitions; Chapter 7, Modification and Termination of Servitudes; § 8.1, Right to Enforce a Servitude; § 8.2, Absence of Privity Does Not Affect Availability of Remedy; § 8.4, Remedy for Condition Broken by Violation of General-Plan Restrictions; § 8.5, Enforcement of Conservation Servitudes Held by Public Bodies and Conservation Organizations.

Comment:

a. Scope and relation to other sections. This section is not intended to include a comprehensive discussion of remedial principles applicable in tort and contract actions, which may be found in the Restatements of those subjects. The purpose of this section is to highlight particular characteristics of servitudes that may be relevant in the selection of appropriate remedies. It is also intended to illustrate how factors such as the conduct of the parties, continuing utility of the servitude, and the costs and benefits of enforcement may affect the availability and choice of appropriate remedies. Subsection (2) provides a special rule for the application of waiver to property owners and associations of property owners in communities protected by reciprocal servitudes (general-plan servitudes), which is designed to allow some flexibility in covenant enforcement.

Complete defenses to enforcement of a servitude may arise under other Chapters in this Restatement, which would warrant denial of all relief under this section. There may be no servitude if the requirements for creation of a servitude under Chapter 2 have not been met, or if the servitude is invalid under Chapter 3. The facts may not establish a violation of the servitude as it is interpreted under Chapter 4. The party against whom enforcement is sought may no longer be bound under the servitude under § 4.4, or may not be bound as a successor under Chapter 5. Alternatively, the servitude may have terminated under Chapter 7. Another possibility is that the burdened party may seek modification under Chapter 7 so that the facts complained of no longer violate the servitude.

Defenses to servitude enforcement in addition to those available under other Chapters are available under this Chapter. The defenses covered in this Chapter may prevent enforcement, or limit the availability of remedies, when a violation or threatened violation of a valid servitude has been established. Ordinarily, violation of a servitude establishes a right to relief, if only to nominal damages, but under some circumstances, the conduct of the claimant or the equities of the situation may justify a complete denial of relief. Denial of relief under this section may have the practical effect of modifying the servitude, but does not usually result in termination. The servitude may be enforceable by another party, or

may become enforceable under other circumstances in which its enforcement would not be inequitable, or substantially interfere with the public interest. If termination is not warranted, but enforcement is not appropriate, an award of nominal damages may be appropriate in situations where the prevailing party is entitled to attorney’s fees, where there is a possibility that the person violating the servitude may acquire additional rights by prescription or adverse possession under the rules set forth in §§ 2.16-2.17 and § 7.7, or where an award of punitive damages may be made.

The result of denying coercive relief under this section may be similar to that produced under § 7.10 when relief is denied because of changed conditions. Damages may be awarded under either section to compensate the beneficiary for harm caused by the servitude violation. Section 7.10 should be applied when it is appropriate to terminate the servitude, and damages should be awarded to compensate for loss of the remaining value of the servitude benefit, if any. If it is not appropriate to enforce the servitude with a coercive remedy in the particular case, but it is not clear that the circumstances warrant termination, this section should be applied. If damages are appropriate under this section, they should be measured by the harm caused by the particular violation rather than permanent loss of the servitude benefit.

b. The servitude’s nature and purpose are important in selection of remedies. Judges have wide discretion in selecting remedies to provide full and appropriate relief to an injured party, and in states with merged law and equity jurisdictions, may mix remedies formerly exclusive to law or equity. Appropriate remedies may include declaratory judgment, compensatory damages, punitive damages, nominal damages, injunctions, restitution, and imposition of liens. In selecting an appropriate remedy, the nature and purpose of the servitude are important.

Servitudes have traditionally enjoyed the strong protection afforded property interests by specific remedies designed to secure enjoyment of the intended servitude rather than compensation designed to substitute for its loss. Because servitudes usually are intended to create rights to use or protect specific property, to provide shared amenities, or to maintain the character of a neighborhood, their value is often difficult to monetize and impossible to replace without a change of location; they are appropriately protected by property rules rather than liability rules.

Many affirmative covenants fit the typical servitude pattern, providing benefits that cannot be adequately replaced with money, and they are appropriately enforced with specific remedies. Covenants to obtain approval of architectural plans and covenants to improve and turn over common areas to an association, for example, should ordinarily be specifically enforced. On the other hand, covenants to pay money, or provide services readily available in the market, are easily monetized and damages remedies ordinarily provide appropriate relief.

Affirmative covenants that are not designed to maintain or enhance the value of particular property or communities are less likely to be enforced than others because of the threat they pose to land values. If not limited, servitudes can go on forever unless all parties involved consent to modification or termination. In traditional servitudes law, the touch-or-concern doctrine and the limitations placed on enforcement of benefits in gross were available to prevent enforcement of such covenants. Those doctrines have been rejected in this Restatement, however, because they were overly broad and generated substantial uncertainty (see discussion in §§ 2.6 and 3.2). In their place, several narrower doctrines are available to invalidate or terminate affirmative covenants that should not be enforced. Covenants that impose unreasonable restraints on alienation or competition, or that are unconscionable or otherwise violate public policy, are invalid under rules set out in Chapter 3. Covenants that are not invalid at their inception may be terminated under rules set out in § 7.12, which covers indefinite covenants to pay money and covenants to pay for services or facilities when the obligation becomes excessive in relation to the value received by the burdened property.

Injunctive relief is normally available to redress violations of easements and restrictive covenants without proof of irreparable injury or a showing that a judgment for damages would be inadequate. The value of a restrictive covenant or easement is often difficult to quantify and may be impossible to replace. When it is enjoyed as an appurtenance to ownership of land, its value to the land owner may not be adequately reflected by market values. An award of damages instead of injunctive relief that would allow the other party to buy out of the servitude obligation will seldom be appropriate so long as the servitude continues to serve the purpose contemplated at its creation. This consideration is even more important for conservation and preservation servitudes than for other types of servitudes.

Actions for violation of easements usually involve claims that use of the easement has been interfered with or that the use made of the easement has exceeded its scope. Claims may also be made for contribution to maintenance of the easement under § 4.13. Excessive use or unauthorized use of an easement is generally a trespass to the servient estate for which damages and injunctive relief are normally granted. The injunction may be tailored to reduce the use to one that does not impose an excessive burden on the servient estate. For obstruction of an easement, damages and injunctions requiring removal of the obstruction, restoration of the easement, and prohibiting future obstruction are normally appropriate. Whether the claim is for excessive use or obstruction, if the servient owner successfully claims the right to relocate the easement under § 4.8(3), the injunction against interference with use of the original location may terminate on completion

of the relocation. A judgment for money damages ordinarily provides an adequate remedy for a claim for maintenance, repair, or replacement expenses, but the judgment could be secured by a lien against the benefited property in an appropriate case. Actions involving profits should involve the same general considerations as easements. Actions involving easements and profits may be brought to redress claimed violations by either the dominant or servient owner. While both are usually entitled to protection by injunction, monetary relief with protective conditions may be appropriate where legitimate interests of both can be accommodated without seriously compromising the interests of either or frustrating the purpose for which the servitude was created.

Conservation servitudes may be enforced by injunctions and damages like other servitudes. Because of the public interest involved, additional remedies are provided for conservation and preservation servitudes held by public bodies and conservation and preservation organizations under the rules stated in § 8.5. Conservation and preservation servitudes held by private parties that are not covered by § 8.5, may also provide public benefits that should be taken into account in fashioning appropriate remedies for their protection. The historical division of covenants into those enforceable at law and those enforceable in equity may account for the fact that damages are seldom sought for breach of restrictive covenants. In the cases concerning restrictive covenants, there are few, if any, where damages are granted in addition to or in lieu of an injunction, although damages commonly accompany injunctions in easement cases. A possible explanation is the difficulty of establishing damages caused by violation of a restrictive covenant. In any event, there is no barrier to the award of damages in addition to or in lieu of injunctive relief to remedy violation of a restrictive covenant. Mandatory injunctions are commonly granted requiring removal of structures or other steps necessary to comply with the covenant. Injunctions may be narrowly tailored to achieve a just result, and may order partial rather than full compliance with the covenant. Injunctive relief may also be denied for reasons discussed in § 8.3. There is much greater variety in affirmative covenants than in other types of servitudes, and the choices of appropriate remedies are correspondingly more varied. Some covenants require that particular uses be made or things be done on the covenantor’s land; others that structures or facilities be constructed and maintained on land of the covenantor or land of the covenantee, or elsewhere. Other covenants require submission of plans to architectural-approval committees or provide the governance structure for common-interest communities. Other covenants require payments of money, sometimes for use of an easement or services that benefit the covenantor’s land, sometimes for other purposes. The variety in affirmative covenants makes generalizations more difficult than with other types of servitudes. Specific performance is a remedy usually available for performance of contracts requiring conveyance of land and hence may be an appropriate remedy for breach of an affirmative covenant. If a substitute performance cannot readily be obtained or would be inadequate, specific performance should be considered. In determining whether specific coercive relief should be granted, the importance of the performance to securing the overall purposes for which the servitude was created should be considered. If specific performance is not practicable, or is otherwise undesirable, a prohibitory injunction might be fashioned to accomplish the objective. If a substitute performance can be readily obtained, a judgment for damages may be satisfactory. Covenants that require payment for services made available to the burdened estate through assessments or otherwise are often secured by an express lien. Even if the documents do not provide for a lien, a court may impose a lien on the burdened estate if there is doubt that the judgment is collectable. A lien may be particularly appropriate where funds are immediately necessary for maintenance or repair of common facilities or to carry on other functions of a common-interest community. Recognizing the importance of assessment funds and the widespread practice in common-interest communities, § 6.5 provides that the assessment obligation is secured by a lien unless negated by the declaration. On the other hand, imposition of a lien not provided for by the parties would seldom, if ever, be appropriate to secure payment of a covenant to pay money that is not related to ongoing maintenance of a common facility or community. For such covenants, if they are not terminated under the rule set forth in § 7.11, a judgment for money damages is ordinarily sufficient.

Illustrations:

1. Whiteacre is benefited by an easement to use a private road across Blackacre for access to a public highway. The owner of Whiteacre changed the use of Whiteacre from a single-family residence to a garbage dump and began using the access road for the passage of garbage trucks. The owner of Blackacre sued, claiming excessive use of the easement. If it is determined that the use exceeds the scope of the easement, it would be appropriate to award an injunction against the excessive use and damages for the period of time the excessive use continued. 2. Same facts as Illustration 1, except that the use of Whiteacre remained single-family residential. The owner of Blackacre built a concrete-block wall that completely blocked access from Whiteacre to the driveway. In the absence of other facts or circumstances, the owner of Whiteacre is entitled to an injunction requiring removal of the obstruction and damages for the period of time the obstruction remains in place. 3. A common drive is located on the border of Lots 1 and 2, which have reciprocal easements to use it. When the original pavement needed replacement, the owner of Lot 1 requested participation from the owner of Lot 2, who refused. After notice to the owner of Lot 2, the owner of Lot 1 proceeded to repave the drive at a cost of $500. When the owner of Lot 1 prevails in

the suit, an award of money damages would be an appropriate remedy. 4. Restrictive covenants for Green Acres prohibit structures with two or more stories. The owner of Lot 2 began building a two-story house. The owner of Lot 1 promptly sought judicial enforcement of the covenant. In the absence of other facts or circumstances, an injunction requiring removal of the second story would be appropriate. 5. Covenants for Briarwood Subdivision require that vegetation on Lot 1 be trimmed to a height 25 feet above grade to protect the view from Lot 8. The owner of Lot 1 fails to trim the trees, which grow above 25 feet in height. The owner of Lot 8 seeks judicial relief. An injunction ordering the owner of Lot 1 to trim the trees would be appropriate in the absence of other facts or circumstances. If the owner fails to have the trees trimmed, the owner of Lot 8 could be authorized to have the work done and be compensated with a judgment for damages secured by a lien against Lot 1. 6. Covenants for Westwood Estates provide that the developer will construct tennis courts and a clubhouse on a designated parcel and convey title to the property-owners association to be formed. After formation of the property-owners association, the developer fails to convey the designated parcel to the association. An order of specific performance to enforce the covenant against the developer would be appropriate. c. Forfeiture of the burdened estate is seldom appropriate. At one time, defeasible fees were used instead of restrictive covenants to create general-plan restrictions. That usage is obsolete, and the restrictions so created are now treated as servitudes enforceable by normal servitude remedies. The forfeiture provisions are not given effect under the rule stated in § 8.4. In modern practice, however, it is possible to provide specifically that either a servitude benefit, for example an easement, or the burdened property be forfeited on the occurrence of a condition. Unless the provision is unconscionable, is invalid as an unreasonable restraint on alienation, or is otherwise illegal or violates public policy under principles set forth in Chapter 3, it may be enforceable. Provisions for forfeiture of a servitude are much more readily enforced than provisions for forfeiture of the burdened estate. Frequently, they are simply reasonable provisions for termination of the servitude. Where forfeiture of the burdened estate is called for, however, it should ordinarily be enforced only under conditions in which an order requiring specific performance is appropriate. Otherwise, the remedy should be injunctive relief against the conduct that caused the condition to occur, or damages. Absent an express provision for forfeiture, a court will not order forfeiture of the burdened property to the benefited party as a remedy for violation of a servitude obligation. In the absence of an express provision allowing termination of an easement or profit for excessive use, a court order of forfeiture for excessive use is warranted only if injunctive relief cannot practicably be used to prevent excessive or unauthorized use of the servitude. Although a covenant to convey land on the occurrence of a condition is valid unless it constitutes an unreasonable restraint on alienation, only under extraordinary circumstances is forfeiture of the estate burdened by a servitude an appropriate remedy for breach of an obligation imposed by a servitude. Difficult questions may arise as to the nature of a conveyance requirement. It may be simply an option to purchase, or it may be an attempt to create a forfeiture remedy for violation of a covenant restricting land use. See § 8.4 for the rule on forfeiture of the burdened estate for breach of condition in a defeasible fee in a residential subdivision. d. Attorney fees. Servitude documents, particularly in common-interest communities, commonly include provision for an award of reasonable attorney fees to the party who prevails in a suit to enforce the servitudes. Attorney fees may also be provided by statute in some states. In recent years, increasing concerns over use of litigation to resolve disputes over minor covenant violations and management of the common property have led to development of alternative-dispute-resolution procedures and increasing use of the business-judgment rule to encourage associations and their members to avoid costly judicial process for resolving disputes. When such disputes do come to court, in calculating a fee award it is appropriate to take into account the reasonableness of the actions of the parties before resorting to litigation as well as the other factors normally relevant. e. Factors other than the nature of the servitude may determine the availability and choice of remedy. Courts have wide discretion in making remedial choices. Factors other than the nature and purpose of the servitude, which are discussed in Comment b, above, that may be considered include the conduct of the parties, the fairness of the transaction that created the servitude, and the fairness of the servitude’s terms. The severity of the breach or violation, the continuing utility of the servitude to the parties, and the costs and benefits of enforcement to the parties, to other persons interested in the servitude, and to the public may also be considered along with any other circumstances that affect the equities of the parties or the interests of the public. A servitude may have utility beyond its benefit to the immediate parties, suggesting that it should be enforced with a coercive remedy even if damages would be appropriate if only the plaintiff’s interest were considered. Conversely, an injunction may have negative effects beyond those to the immediate parties, which may suggest that monetary relief alone is appropriate, even though an injunction would be appropriate if only the plaintiff’s interest were considered. The fact that a servitude has little continuing utility because the purpose it was designed to serve is less important or compliance is less effective in accomplishing the purpose than when the servitude was created may also suggest that monetary rather than coercive relief is appropriate. f. Laches, waiver, estoppel, and unclean hands may be considered. The conduct of the claimant may be considered in determining both the availability and choice of remedy. A finding of laches, waiver, estoppel, or unclean hands may lead

either to denial of relief altogether, or to denial of the requested remedy in favor of another that is less onerous to the party who violated the servitude. The conduct that leads to a finding that the claimant is not entitled to relief, or is not entitled to coercive relief under this section is similar to, but generally falls short of conduct that would lead to the conclusion that the servitude was terminated by abandonment under § 7.4 or by estoppel under § 7.6. Unfairness to the person against whom enforcement is sought is the factor that motivates a court to deny or limit the remedies available to the claimant when laches, waiver, estoppel, or unclean hands is found. Laches is unreasonable delay by the plaintiff in prosecuting a claim or protecting a right under circumstances that cause prejudice to the defendant. Reasonableness of the plaintiff’s delay is determined by examining the plaintiff’s position as the violation of the servitude developed. Laches claims are frequently raised where the plaintiff seeks removal of a structure that interferes with an easement or that was built in violation of a restriction. The statute of limitations may not provide an appropriate time limit because of the prejudice to the defendant, at least one who innocently went ahead with construction. Waiver usually involves a failure to object to other violations of the same or similar servitudes such that it would be unfair to allow the claimant to enforce the servitude against the current violation. In determining whether a failure to object should lead to denial of an injunction, or other relief, the prime consideration is fairness to both parties. Fairness to the complaining party requires recognizing that a servitude beneficiary need not take steps to prevent violations that do not have a present negative impact on the beneficiary’s use or enjoyment. Thus, a servitude beneficiary who fails to seek enforcement against one violation does not waive the right to enforce against violations that have a different or greater impact on the beneficiary’s interests. Fairness to the defendant usually requires treatment similar to that accorded others similarly situated. The defendant may also claim unfairness if plaintiff’s failure to act in the past reasonably led defendant to believe that plaintiff would not act in the future. Where the parties are part of a larger development with similar or identical servitudes, the wider impact of a finding of waiver and denial of injunctive relief should also be considered. Refusal to enjoin a violation on the ground of waiver may lead to initiation of enforcement efforts by others, or to loss of the benefit of the particular servitude throughout the development. If the servitude has become obsolete, that result may be appropriate, but if it still serves a useful purpose, consideration of the interests of other beneficiaries should lead to specific enforcement. In many situations denial of injunctive relief is tantamount to denial of all relief because damages may be impossible to establish. Recognizing the importance of servitude enforcement to areas developed according to a general plan, the rule stated in subsection (2) limits the applicability of waiver to situations in which failure to enforce has led to changed conditions that justify modification or termination under § 7.10, or situations in which it would be unreasonable or inequitable to enforce the servitude. This rule is particularly important in common-interest communities and other real-estate developments with associations, because the association should not be impelled to engage in overzealous covenant enforcement fearing possible waiver of future enforcement rights. Overzealous enforcement is costly to the community both financially and because it tends to be socially divisive. Estoppel is based on an express or implied communication of an intention not to enforce the servitude that leads to a substantial change of position by the burdened party. Unclean hands is a broader concept and generally refers to any conduct by the claimant that would make it inequitable to allow the claimant to enforce the servitude.

Illustrations:

7. O, the owner of Lot 1 in Green Acres subdivision assured Able, the owner of Lot 2, that there would be no problem if Able wanted to build a carport on Lot 2 in violation of the subdivision restrictions. After Able built the carport, O and Able had a falling out over another matter and O sued Able asking for an injunction requiring removal of the carport. O’s conduct would justify the denial of any relief. 8. Same facts as Illustration 7. Before building the carport, Able mentioned his plans to Baker, the owner of Lot 3 and the owners of the lots across the street from Lot 2. None of them objected and they watched Able build the carport and said nothing. Baker joined O’s suit against Able. Baker’s conduct would justify the denial of any relief. 9. Same facts as Illustrations 7 and 8. The Green Acres homeowners association, which is expressly empowered to enforce the Green Acres covenants, also joined the suit to enforce the restriction against Able’s carport. There was no communication between Able and the association before Able began construction of the carport. In the absence of other facts or circumstances, the conclusion would be justified that an injunction requiring removal of the carport should be issued in favor of the association. 10. Same facts as Illustration 9, except that Able sent a letter to the President of the Green Acres homeowners association advising of his plans. When Able did not receive a response, he called the President who advised him that the association would take no action unless it received a complaint from the owner of one of the lots in the immediate vicinity of Able’s lot. No lot owner other than those mentioned in Illustrations 2 through 4 complained to the association. The conclusion would be justified that the association’s conduct would justify denial of any relief against Able. 11. Able, the owner of Blackacre, sat by for more than one year while Baker, the owner of Whiteacre and Greenacre, spent $11,000 clearing the ground and making other preparations for construction of a house straddling the boundary line between Whiteacre and Greenacre. The only access to Whiteacre is by means of an easement across Blackacre. Greenacre is

landlocked. Able knew of Baker’s plans to build the house and knew that Baker planned to use the easement for access to both lots. After a dispute over another matter, Able blocked the easement, and Baker sued for an injunction against further interference with use of the easement. Able countered by seeking an injunction against use of the easement to serve any part of Greenacre, including the portion of the house to be built on Greenacre. In the absence of other facts or circumstances, Able’s delay in seeking relief against unauthorized use of the easement (see § 4.10) would justify denying the injunction requested by Able, and granting of the injunction requested by Baker, subject to the condition that the easement be used only for access to one single-family dwelling on the combined Whiteacre-Greenacre parcel, or other uses of the combined parcel that could in the aggregate be legally made if located on Whiteacre alone. 12. Covenants in Sand Acres Estates prohibited use of any lot for other than single-family dwelling and residential uses and specifically prohibited parking commercial vehicles in the subdivision. Able, the owner of Lot 4, had kept a cement mixer in the driveway of Lot 4 for two years when Baker began construction of a duplex on Lot 6. Able promptly sued for an injunction against construction of the duplex. In the absence of other facts or circumstances, the conclusion would be justified that the injunction should issue. Able’s violation of the covenant is unrelated to Baker’s violation and does not make issuance of the injunction inequitable. 13. A small, tasteful sign identifying a commercial business was installed on the north side of a mixed-use condominium building in violation of a covenant that prohibited all signs on the north side. The association took no action. Three years later, a 32-foot yellow neon sign was installed on the east side of the building in violation of a covenant limiting signs on the east side to five square feet. The association promptly sued for an injunction requiring removal of the sign. In the absence of other facts or circumstances, the injunction should issue. The association’s failure to object to the sign on the north side does not waive its right to enforce the covenant against the much larger and more obtrusive sign. 14. Lot owners in Briarwood subdivision did not object to operation of a day-care center for six children on Lot 1. Later, the owner of Lot 53 opened a day-care center for 87 children, and the neighbors sued for an injunction. In the absence of other facts or circumstances, the injunction should issue. The lot owners did not waive their right to object to further violations that more substantially affect enjoyment of their premises. g. Fairness of the transaction and servitude terms may be considered. Traditionally, specific performance of contracts has been denied if the contract was induced by mistake or unfair practices, or the relief would cause unreasonable hardship or loss to the party in breach, or to third persons, or if the exchange is grossly inadequate or if the terms of the contract are otherwise unfair. Clarity of the terms of the contract is often a factor in the decision to grant or deny specific enforcement. The same considerations may lead to denial of specific enforcement of a covenant obligation. In considering whether unfairness at the inception of the covenant should lead to denial of injunctive relief, the interests of other parties subject to the same or similar covenants should also be considered. If the covenant is part of a general plan for a subdivision or common-interest community, it is usually important that all owners be equally bound and benefited by the covenants. If denial of specific enforcement would have the effect of creating disparities of privilege in the community or of eliminating the particular property from the community, reliance interests of the community members ordinarily should prevail. Unfairness may also lead to defenses under other sections of this Restatement. Unfairness that rises to the level of unconscionability provides a complete defense to enforcement of a servitude under § 3.7. Affirmative covenants that impose indefinite long-term payment obligations or long-term obligations to pay for services or facilities without regard to the continuing value of the services may be modified or terminated after a reasonable time under the rule stated in § 7.12. h. Costs and benefits of enforcement may be considered. The costs and benefits of enforcement of the servitude by various means may be considered in determining the availability and appropriate selection of remedies. The purpose of the servitude arrangement and its continued utility to the claimant and others may be important factors. If the servitude has utility beyond the benefit to the claimant, it should probably be enforced with a coercive remedy even if damages would be appropriate if only the claimant’s interest were considered. Conversely, an injunction may have negative effects beyond those to the immediate parties, which may suggest that monetary relief alone is appropriate, even though an injunction would be appropriate if only the claimant’s interest were considered. If the negative impacts of servitude enforcement on third parties or the public interest are substantial, denial of all relief, or termination of the servitude on the payment of appropriate damages may be appropriate. See § 3.1 for a discussion of servitudes that are invalid because enforcement would be against public policy. The fact that a servitude has little continuing utility because the purpose it was designed to serve has become less important, or compliance has become less effective in accomplishing its purpose than when the servitude was created may also suggest that monetary rather than coercive relief is appropriate. If a servitude has become obsolete, or nearly so, denial of an injunction may be justified, short of the point where termination under the doctrine of changed conditions would be warranted under § 7.10. Damages may be awarded under either section if appropriate; damages under § 7.10 are measured by permanent loss of the remaining value of the servitude benefit; damages under this section are measured by harm caused by the particular violation. Denial of coercive relief, under this section rather than under § 7.10, leaves open the possibility that the servitude may be enforceable in other circumstances.

Illustrations:

15. A covenant in Green Acres, a 200-lot single-family residential subdivision with large lots and large houses, restricts lots to single-family residential use and defines “single family” as a group of people related by blood or marriage who operate as a single housekeeping unit. Many residential areas in the locality are burdened with similar covenants. Handicapped Services purchases a large house in Green Acres for the purpose of operating a group home for not more than six developmentally disabled persons with a resident couple as “parent” caregivers. The Green Acres community association seeks an injunction against Handicapped Services’ proposed use on the ground that it violates the single-family restriction. If the covenant is interpreted to prohibit the group-home use, it would be appropriate to deny any remedy on grounds of public policy. The adverse effects of the covenant fall on third parties, the consequences of upholding the validity of the covenant are likely to increase the difficulties of finding suitable housing opportunities for developmentally disabled persons who need group-home living environments, and enforcing the covenant would be likely to encourage future use of such covenants to the detriment of public policies favoring fair treatment for disabled persons. Enforcement of the covenant against group-home use may also be illegal under the Federal Fair Housing Act and local law. 16. City Supermarket, located in an older inner-city neighborhood, sold its property to Merchant and relocated to a larger building three miles away. The deed to Merchant included a covenant prohibiting use of the premises for a grocery store or supermarket. There were no other supermarkets in the area, and, after relocation, City Supermarket remained the closest market for many residents in the old neighborhood. Many residents who lacked transportation and had formerly walked to City Supermarket were now forced to use taxis or rely on inadequate public transportation to get groceries. Inner City Food Store has purchased the City Supermarket’s former store and plans to operate a grocery store in the location. It sues for a declaration that the covenant is invalid. Merchant counterclaims seeking injunctive relief. In the absence of other facts or circumstances, the conclusion would be justified that injunctive relief should be denied because of the substantial detrimental impact on residents of the area. If the anti-competitive effects are not substantial enough to warrant the conclusion that the covenant is invalid under § 3.6, damages, or an award of restitution to City Supermarket for any reduction in the price paid by Merchant on account of the covenant, might be appropriate. 17. Exclusive Estates is a gated community of 5,000 homes. The recorded covenants include a provision that access is restricted to residents and their invitees. Citizens for Good Government seeks access to solicit signatures on a petition to recall a member of the city council. Citizens establishes that it has no other equally effective means of communicating with the residents of Exclusive Estates. In the absence of other facts or circumstances, the conclusion would be justified that Citizens should be granted access at reasonable times and subject to conditions designed to protect the security of residents because application of the covenant to bar door-to-door political communication would violate public policy. The burden on the exercise of political-speech rights of the Citizens group outweighs the benefit to the residents of freedom from intrusion. 18. At Developer’s request, and over the objections by other lot owners in the subdivision, the City rezoned the part of Arrowhead Subdivision located along Fair Oaks Avenue, a major thoroughfare, for commercial development and prohibited residential use of the property. Developer now plans to develop the property with commercial structures that comply with the zoning. Owners of other lots in Arrowhead, all of which is restricted to residential use, sue Developer seeking an injunction against any nonresidential use of the property. At trial, evidence is presented that the lots are not suitable for residential development and will remain vacant if an injunction issues. An official of the City testified that additional commercial development along Fair Oaks Avenue is highly desirable, and that use for residential purposes would be contrary to the city’s comprehensive plan. In the absence of other facts or circumstances, the conclusion would be justified that under the circumstances, an award of damages rather than injunctive relief would be appropriate. 19. A covenant in Lakewood Estates required consent of all property owners adjoining or across the street for construction of a second house on an existing lot. Able, the owner of Lot 3, has obtained the consent of all the adjoining property owners and owners of property across the street for construction of a second house, except that of the owner of Lot 5, who has lived in England for the past 10 years, during which time her property has been left unoccupied and in a state of disrepair. The proposed house would not be visible from Lot 5 and is consistent in style, size, and value with other homes in the subdivision, and either would have no effect on or would increase the value of Lot 5. In the absence of other facts or circumstances, the conclusion would be justified that limiting relief to the owner of Lot 5 to an award of nominal damages would be appropriate on the ground that issuance of the injunction would substantially harm the owner of Lot 3 without substantial benefit to the owner of Lot 5. 20. After spending $15,000 on remodeling, Doctor opened a small professional practice in her home in the Green Acres subdivision. The Green Acres covenants prohibited any nonresidential use of the property. A neighbor, whose property was also subject to the Green Acres covenants, promptly sued for an injunction. Evidence was presented that there was no adverse impact on the neighborhood and that issuance of an injunction would cause hardship to Doctor. In the absence of other facts or circumstances, the conclusion would be warranted that an injunction should issue because it would not be inequitable. Interests of the neighbors in preserving the residential integrity of the neighborhood outweigh Doctor’s interests. The severity of the breach or violation may be an important factor. If it is minor, injunctive relief may not be warranted unless necessary to protect a property interest.

Illustrations:

21. Green Hills Condominiums are subject to a restriction that no exterior signs of any kind are permitted. Several owners put up small nameplate signs next to their front doors. The Condominium Association sued to enforce the restriction. If the judge determines that the individual interests of the owners in identifying their units is greater than the association’s interest in preventing identification of the units through nameplates, any relief other than damages might be refused. If the association establishes harm to its interest in controlling the exterior appearance of the units, the requested injunction might be issued to become effective when the association approves a name-plate design for use by unit owners. 22. Several lot owners in Foxwood Estates converted their garages in violation of covenants requiring that each house have a two-car garage. The owner of Lot 10 then converted the garage on that property. Six months after the conversion was complete, the owner of Lot 12 sued to enforce the covenant, asking for an injunction requiring restoration of the garage. Evidence that reconversion would cost $9,000, that the appearance of the residence is in harmony with the subdivision, that five other garages in the immediate vicinity of Lot 10 had converted garages, and that no parking problem was created by the conversion was presented. Under the circumstances, denial of injunctive relief would be appropriate. 23. Whiteacre is benefited by an easement to use a private road across Blackacre for access to a public highway. The owner of Whiteacre acquires Greenacre, a small parcel that abuts Whiteacre, combines the two into a single parcel, and builds a single-family dwelling that occupies parts of both. The owner of Whiteacre continues to use the easement across Blackacre for access to the house. The owner of Blackacre sues to enjoin use of the easement for access to Greenacre. If use of the easement to serve the combined parcels is determined to exceed the scope of the easement, an award of damages rather than an injunction would be appropriate because there is no increase in burden to the servient estate. In taking into account the costs and benefits of enforcement of servitudes in common-interest communities, or other communities with reciprocal servitudes, the effects of or lack of enforcement on other members of the community should be taken into account and the interests of the community should be protected as well as those of the individual members involved in the dispute.

Illustrations:

24. The governing documents require developer to build a clubhouse on Parcel A. Developer builds the clubhouse on Parcel B instead. Parcel B is as suitable as Parcel A for the use, except that the owner of Unit 1, located immediately adjacent to Parcel B, finds the increased traffic and noise objectionable. The owner of Unit 1 sues developer asking that developer be required to move the clubhouse to parcel A. In the absence of other facts or circumstances, if the owner of Unit 1 is entitled to relief, the court would be warranted in denying the requested injunction and in granting damages or other mitigation measures instead, because of the costs involved in moving the clubhouse. 25. Deeds to burial plots included a restriction prohibiting erection of mausoleums. Two years after it had been constructed and defendant’s husband buried in it, plaintiff sought removal of the mausoleum erected by defendant with the permission of the cemetery owner. There was evidence that defendant’s health would be seriously affected by its removal. Under the circumstances, denial of an injunction requiring removal of the mausoleum, but grant of an injunction against future violations and an award of damages against the cemetery owner, would be appropriate.

REPORTER’S NOTE

Scope and relation to other sections, Comment a. Actions to enforce servitudes may sound in contract or tort, and are generally subject to the same remedial rules as other actions brought to protect interests in land. The subject of remedies is addressed in Chapter 16 of the Restatement Second of Contracts, and in Division 13 of the Restatement Second of Torts. Other sections that include discussions that may affect remedies or collections of cases involving remedies include § 6.8, Association’s Enforcement Powers, and §§ 7.10-7.13, covering modification and termination of servitudes under various conditions. An additional defense will arise under § 8.1 if the person seeking enforcement is not a current beneficiary of the servitude, or lacks a legitimate interest in having the servitude enforced. Appropriate remedies, Comment b. For recent treatment of the classic work analyzing situations in which “property rules” (injunctions and other coercive relief) and “liability rules” (damages) are appropriate, see James E. Krier & Stewart J. Schwab, Property Rules and Liability Rules: The Cathedral in Another Light, 70 N.Y.U. L. Rev. 440 (1995). James E. Krier & Stewart J. Schwab, The Cathedral at Twenty-Five: Citations and Impressions, 106 Yale L.J. 2121 (1997). Anthony Kronman, Specific Performance, 45 Univ. of Chi. L. Rev. 351, 359-61 (1978), provides an illuminating analysis of the situations in which specific performance is appropriate.

Judges Have Flexibility in Designing Remedies for Servitude Enforcement

Oceanside Community Ass’n v. Oceanside Land Co., 195 Cal.Rptr. 14 (Cal.Ct.App.1983) (court asked to enforce covenant in equity has broad powers to fashion a remedy; court may create new remedies to deal with novel factual situations; court is not strictly limited to particular relief requested in prayer of complaint; imposition of equitable lien in favor of homeowners, foreclosable so long as burdened property was not in process of restoration or actively maintained as golf course, was appropriate where mandatory injunction would have been inequitable because costs of restoration and maintenance were

economically not feasible, given servient owner’s investment in the property). Exit 1 Properties Ltd. Partnership v. Mobile Oil Corp., 692 N.E.2d 115 (Mass.Ct.App.1998) (even if covenant restricting gas station to vending-machine food sales was obsolete, court could modify covenant to allow gas station more food and beverage sales and then enforce modified covenant to protect restaurant owner benefited by covenant; in enforcing restriction on competition, court may adjust restriction to make it reasonable in circumstances of the parties at the time they seek court enforcement).

Servitudes May Be Enforced by Legal and Equitable Remedies

McRae v. Lois Grunow Memorial Clinic, 14 P.2d 478 (Ariz.1932) (court could properly award damages for violation of restrictive covenant where injunction refused because of plaintiff’s unclean hands and other inequities). Knox v. Streatfield, 79 Cal.App.3d 565, 145 Cal.Rptr. 39 (1978) (demurrer reversed; subdivision lot owner had cause of action for damages and injunctive relief for violation of declaration of restrictions). Cordogan v. Union Nat’l Bank of Elgin, 64 Ill.App.3d 248, 380 N.E.2d 1194 (1978) (person benefited by restriction is prima facie entitled to have it enforced by a court of equity). Woodson v. Okanogan River Ranches Homeowners Ass’n, 1997 WL 740778 (Wash.Ct.App.1997) (beneficiary of running covenant can sue for injunction or damages against a party who uses land in violation of restrictions).

Proof of Harm Is Not Ordinarily Required for Issuance of Injunction Against Violation of Restrictive Covenant

Tubbs v. Brandon, 374 So.2d 1358 (Ala.1979) (right to enjoin breach of restrictive covenant does not depend on whether covenantee will be damaged by breach; injunction against violation of 40-foot setback properly issued). Turner Advertising Co. v. Garcia, 311 S.E.2d 466 (Ga.1984), cert. denied, 469 U.S. 824 (1984) (if clear breach of covenant restricting building on property is shown, equity may issue injunction without regard to injury to the plaintiff; the covenantee is entitled to the benefit of the covenant). Wier v. Isenberg, 420 N.E.2d 790 (Ill.Ct.App.1981) (mere breach of covenant is sufficient ground to enjoin its violation; covenant beneficiary need not show injury; residential-only covenant will be enforced against combined use for residence and professional psychotherapy practice; argument that community benefits from use and that increased density is no greater than other neighborhood activities lacks force in absence of evidence that covenants’ purpose can no longer be accomplished). Cordogan v. Union Nat’l Bank of Elgin, 64 Ill.App.3d 248, 380 N.E.2d 1194 (1978) (quoting from Hartman v. Wells, 257 Ill. 167, 100 N.E. 500 (1912): “The evidence as to whether appellant’s property was damaged by the violation of the agreement was conflicting, but we do not think that was a material question. In Consolidated Coal Co. v. Schmisseur, 135 Ill. 371, 25 N.E. 795, the court, in discussing the enforcement of negative covenants in courts of equity, said it was well settled that equity would entertain bills for injunctions to prevent their breach although the breach would cause no substantial injury or although the damages might be recoverable in an action at law. ‘This is upon the principle that the owner of land selling or leasing it may insert in his deed or contract just such conditions and covenants as he pleases touching the mode of enjoyment and use of the land.... He is not to be defeated, when the covenant is broken, by the opinion of any number of persons that the breach occasions him no substantial injury. He has a right to define the injury for himself, and the party contracting with him must abide by the definition.”’). Gladstone v. Gregory, 596 P.2d 491 (Nev.1979) (generally restrictive covenants may be enforced irrespective of amount of damage that will result from breach; no actual damages need be shown). Logston v. Penndale, Inc., 576 A.2d 59 (Pa.Super.Ct.1990) (right to enforce covenant against sale of liquor in residential subdivision did not depend on showing that plaintiffs would suffer damage as result of breach of covenant). Stergios v. Forest Pl. Homeowners’ Ass’n, Inc., 651 S.W.2d 396 (Tex.Ct.App.1983) (if association establishes substantial breach of covenant, it is not required to show any injury or damage resulting from violation; mandatory injunction requiring replacement of composition roof with material permitted by covenants upheld despite evidence of $20,000 cost; fact that material used has superior fire-resistant qualities to wood shingles is irrelevant). Greenberg v. Koslow, 475 S.W.2d 434 (Mo.Ct.App.1971) (irreparable injury need not be established to enjoin breach of restrictive covenants; covenants must be observed whether or not nonobservance will inflict injury; a party may not make a solemn engagement and then disregard it on the ground no harm will result). Golden City Commercial Bank v. Hawk Properties Corp., 658 N.Y.S.2d 257 (App.Div.1997) (likelihood that association’s lien for unpaid common charges would be relegated to junior status or extinguished by referee’s failure to pay real-estate taxes and expenses of sale out of proceeds of foreclosure sale before delivering proceeds to assignee of mortgage was sufficient to establish that association would suffer irreparable harm in absence of injunction against sale or transfer of condominium units prior to payment of real-estate taxes). Dice v. Central Natrona County Imp. & Serv. Dist., 684 P.2d 815 (Wyo.1984) (showing of irreparable harm or uncompensable damage not necessary to suit for injunction against subdivision of lots contrary to covenants).

Calculation of Damages

Normal damages principles apply to servitudes, including reduction for losses that the injured party could reasonably have avoided: Cohen v. Banks, 642 N.Y.S.2d 797 (Justice Ct.1996) (dominant owner not entitled to cost of installing new water main on her own property after servient owner wrongfully blocked her access to water main in which she had easement rights where she might have obtained mandatory injunction permitting her to continue to use easement; she deliberately decided to increase her damages at plaintiff’s expense by installing a new main water line away from plaintiff’s property; defendant must take reasonable legal action to protect her rights rather than charging plaintiff for the cost of a new line; she failed to mitigate damages and indeed determined to maximize them; because defendant would not have been able to collect attorney’s fees for seeking injunction, there is no justification for requiring him to pay for cost of alternative self-help she chose in lieu of court action).

Availability of Punitive Damages

Kalenka v. Taylor, 896 P.2d 222 (Alaska 1995) (punitive damages not available for violation of covenants; contract claim cannot be transmuted into tort claim by alleging that defendants’ violation was willful and with reckless disregard of interests of other lot owners; “automatic” penalty of $1,000 per day for unapproved construction until approval is received is invalid as impermissible liquidated-damages provision because it fails to distinguish among degrees of violations). Reintsma v. Lawson, 727 P.2d 1323 (Mont.1986) (award of attorney’s fees and costs entered under the guise of punitive damages was not appropriate though award of punitive damages may be proper).

Enforcement of Architectural-Control Covenants and Building and Use Restrictions

For additional cases involving design controls in common-interest communities, see Reporter’s Note to § 6.9. Tubbs v. Brandon, 374 So.2d 1358 (Ala.1979) (injunction prohibiting violation of 40-foot setback restriction and requiring removal of parts of house under construction from setback area proper). Posey v. Leavitt, 280 Cal.Rptr. 568 (Cal.Ct.App.1991) (unit owner’s suit against another unit owner for removal of deck that encroached on common area was equitable action; jury verdict was advisory only and trial court should have made independent assessment of the evidence and weighed relative hardships in deciding whether to grant or deny the injunction). Castonguay v. Plourde, 699 A.2d 226 (Conn.Ct.App.1997), certif. denied, 701 A.2d 660 (Conn.1997) (injunction against further construction of house that interferes with view protected by covenants was justified; injury to plaintiff’s view would be permanent, irreplaceable, and without suitable compensation; harm to defendants not greatly disproportionate to plaintiffs’ injury; continued construction would forever destroy plaintiffs’ view for which they had also expended substantial sums of money). Moore v. Serafin, 301 A.2d 238 (Conn.1972) (injunction against future violation of covenant prohibiting above-ground tombstones or mausoleums properly issued where defendant threatened to violate the covenant, without regard to amount of damage that would be suffered by covenant beneficiary). Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685 (Fla.Dist.Ct.App.1971) (association entitled to mandatory injunction requiring removal of glass jalousies and return of balcony enclosure to original screened condition; substitution was material alteration requiring approval of association). Sandstrom v. Larsen, 583 P.2d 971 (Haw.1978) (mandatory injunction to eradicate the violation is the appropriate remedy when a property owner deliberately and intentionally violates a valid express restriction running with the land or intentionally takes a chance on violating the restriction; injunction ordering removal of second story built in violation of covenant was appropriate where defendants knew of covenant and knew that plaintiffs intended to enforce it when they proceeded with construction). McColm v. Stegman, 596 P.2d 167 (Kan.Ct.App.1979) (trial court did not abuse discretion in granting injunction requiring removal of mobile homes located on property subject to covenant prohibiting mobile homes; although appellate court might have refused the injunction, test is whether any reasonable person could have taken the view adopted by the trial court). Fuller v. Hill Properties, Inc., 259 So.2d 398 (La.Ct.App.1972) (if one-foot projection of overhang into setback area violated restriction, violation was too minor, technical, and insignificant to justify issuance of injunction requiring its removal). Blakeley v. Gorin, 313 N.E.2d 903 (Mass.1974) (“... in the past this court has upheld mandatory injunctions calling for the destruction and removal of substantial permanent structures built in violation of such a restriction [16-foot passageway at rear of lots to be kept open].... We have done so over the strong objection that ‘it would operate oppressively and inequitably, and impose on the defendant a loss disproportionate to the good it can accomplish....’ ... But [Mass. Gen. Laws ch. 184, § 30], was designed to change the law in this field and make certain equitable considerations between the parties, as well as a consideration of the public interest, grounds to relegate the beneficiary of such a restriction to money damages.” Award of damages instead of injunction for construction of 12-story bridge above 16-foot passageway required to be kept open by restrictions is proper). Brown v. Linnell, 269 N.E.2d 447 (Mass.1971) (injunction would not issue to require removal of beach access ramp that violated restrictions; unsightly features resulted from strictly functional requirements and erection of different type of walk or stairs would not make any difference aesthetically; electrical cabinet would not be ordered removed because its appearance

was inconsequential compared to the ramp). Westmoreland Ass’n, Inc. v. West Cutter Estates, Ltd., 174 A.D.2d 144, 579 N.Y.S.2d 413 (1992) (injunction against violation of subdivision setback restriction properly issued where court correctly found that equities balanced in favor of grant of injunction; defendants learned of setback prior to closing and proceeded despite protests of property-owners association, and there is no indication of good faith on defendants’ part or unclean hands on plaintiff’s). Association of Owners of Regency Park Condominiums v. Thomasson, 878 S.W.2d 560 (Tenn.Ct.App.1994) (mandatory injunction requiring removal of deck built despite association’s disapproval of plans upheld; association need not show that unit owner’s proposed change to exterior of condominium would significantly undermine the health, safety, or welfare of the condominium as a whole; interest in maintaining uniform exterior of condominium may be vindicated by restrictions on changes, which are enforceable so long as reasonably applied; test for reasonableness is whether decision is arbitrary or unreasonable, or nondiscriminatory and evenhanded and made in good faith for the common welfare of the owners and occupants; court did not discuss owner’s contention that changes were made in part to secure second fire exit) (court suggests that timeliness of request for injunction affects the appropriateness of injunctive relief, citing Smith v. Rodgers, 677 S.W.2d 1 (Tenn.Ct.App.1984), where the court refused to grant a mandatory injunction requiring defendant to remove dirt from plaintiff’s property because application not timely made and plaintiff had adequate remedy at law, and Brandon v. Stover, 447 S.W.2d 374 (Tenn.Ct.App.1969), where court refused to require removal of house located in violation of covenant in part because injunction was not applied for with reasonable promptness). Inwood North Homeowner’s Ass’n, Inc. v. Meier, 625 S.W.2d 742 (Tex.Ct.Civ.App.1981) (association entitled to injunction requiring removal of small window-type air-conditioning unit from garage-door panel where garage door faced the street, unit had caused discoloration on door and drive from algae, and unit preventd garage from functioning as two-car garage; covenant required approval for all exterior alterations or additions). Calvary Baptist Church v. Adams, 570 S.W.2d 469 (Tex.Ct.Civ.App.1978) (preliminary injunction warranted against threatened construction of parking lot on property restricted to residential purposes as construction would constitute substantial violation of covenant). Schulz v. Zoeller, 568 S.W.3d 677 (Tex.Ct.Civ.App.1978) (injunction requiring removal of house moved onto lot in violation of subdivision restriction prohibiting moving any structure or house trailer onto lot upheld). Gunnels v. North Woodland Hills Community Association, 563 S.W.2d 334 (Tex.Ct.Civ.App.1978) (preliminary injunction requiring removal of antenna erected in violation of covenant was proper without showing of actual damages or irreparable injury; neither is necessary where a distinct or substantial breach of restrictive covenants is shown). Walker v. Vaughn, 491 S.W.2d 489 (Tex.Ct.Civ.App.1973) (trial court had refused to issue mandatory injunction requiring defendants to bring house into compliance with covenant requiring that 60% of exposed exterior walls be of brick, stone, or stucco reversed; defendant knowingly violated covenant by using other materials on 65% of walls; that house was as valuable and arguably more attractive than others that complied was irrelevant; if defendant was allowed to violate the covenant, others would claim the same right and the covenant will eventually fail; $1,500 cost did not mandate conclusion that enforcement would be inequitably oppressive; knowing violation made case for mandatory injunction stronger).

Enforcement of Covenants Against Competition

Dick v. Sears-Roebuck & Co., 160 Atl. 432 (Conn.1932) (substantial damage to plaintiff’s business caused by defendant’s breach of covenant not to compete justified grant of injunction). Hudson Oil Co., Inc. v. Shortstop, 168 Cal.Rptr. 801 (Cal.Ct.App.1980) (successor to covenantee entitled to injunction against breach of covenant against sale of petroleum products on burdened property).

Enforcement of Assessment Covenants

See Reporter’s Notes to § 6.5 and § 6.8 for cases involving enforcement of covenants to pay assessments and fees to common-interest communities.

Enforcement of Developers’ Covenants

Additional cases involving duties of a developer may be found in the Reporter’s Notes to §§ 6.19 and 6.20. Oceanside Community Ass’n v. Oceanside Land Co., 195 Cal.Rptr. 14 (Cal.Ct.App.1983) (equity court has broad powers to fashion a remedy; where mandatory injunction requiring maintenance of golf course was not appropriate because not economically feasible, an equitable lien in favor of homeowners at rate of $10 per residence per month so long as land was not in process of being renovated or maintained as a golf course would be imposed). In re Wildflower Landholding Assoc., 49 B.R. 246 (Bankr.M.D.Fla.1985) (debtor liable for damages for breach of term in sales contract requiring vendor to provide buyer at buyer’s option a dedicated road for access to certain lots; liability persisted after bankruptcy even though buyer purchased burdened property at post-petition auction; debtor, which was successor to seller, was bound by covenants as equitable servitudes because it accepted conveyance of burdened land with notice; parties directed to submit affidavits on cost of completion of road to put court in position to enter money judgment for buyer).

Woodlands Golf Ass’n, Inc. v. Feld, 429 So.2d 846 (Fla.Dist.Ct.App.1983) (lot owner entitled to damages for breach of covenant providing lot owners in golf-course development with right to apply for membership in nonprofit social golf club where club advised lot owner that membership was not available; case involved breach of covenant in written document, not just social-club dispute). Haugh v. Smelick, 887 P.2d 26 (Idaho 1993) (subsequent developer of project is bound by number of units shown in recorded master plan; trial court abused its discretion by issuing permanent injunction prohibiting further development where master plan permitted 18 additional units). Wessel v. Hillsdale Estates, Inc., 266 N.W.2d 62 (Neb.1978) (plaintiff lot owners entitled to injunction against developer’s destruction of commons; no showing of damage or irreparable injury is necessary; in fact it borders on the ridiculous to say that owners are not damaged by virtual elimination of promised park, recreational area, and swimming pool). Nisbet v. Watson, 251 S.E.2d 774 (W.Va.1979) (mandatory injunction requiring subdivider to fulfill obligation set forth in declaration of covenants to construct and maintain sewage system until all lots were sold and title passed to lot owners properly issued).

Enforcement of Covenants to Provide Services or Facilities

Cases involving the duties of common-interest communities to provide services or facilities to their members are collected in the Reporter’s Note to § 6.13, Duties of Common-Interest Community to Members. Paley v. Copake Lake Dev. Corp., 463 N.Y.S.2d 910 (App.Div.1983) (preliminary injunction against termination of sewer service properly granted; irreparable harm would occur on termination of service, and there was no adequate remedy at law). Greenspan v. Rehberg, 224 N.W.2d 67 (Mich.Ct.App.1974) (injunction requiring plaintiff to construct bridge after it became apparent that rebuilding roadway and culverts would not relieve flooding problem was proper, even though not within contemplation of original parties to covenant requiring purchaser to expand and improve right of way; equity may shape relief according to the situation at the time when the decree is entered; to carry out the parties’ intent that defendants have improved access to Plymouth road, it was necessary that bridge be constructed after upstream construction increased runoff, so that culverts beneath roadbed would be temporary and wholly unsatisfactory solution; defendants properly required to pay one-half of cost under covenant requiring that maintenance expenses be shared equally). Pine Valley Meats, Inc. v. Canal Capital Corp., 566 N.W.2d 357 (Minn.Ct.App.1997) (punitive damages not available for breach of contract; obligation to maintain cattle walkway was contractual obligation even though license became irrevocable by estoppel; no independent tort claim accompanied the breach-of-contract action). Rollins v. Schwyhart, 587 S.W.2d 364 (Mo.Ct.App.1979) (defendant did not appeal from trial court’s grant of injunction requiring removal of gate across drive despite plaintiffs’ failure to maintain cattle guard as required by easement agreement; defendant servient owner was entitled to damages; proper measure of damages would be cost to maintain the guards, not sums expended to fence the right of way). Reid-Strutt, Inc. v. Wagner, 671 P.2d 724 (Or.Ct.App.1983) ($31,500 damages awarded for breach of servient owner’s covenant to construct road on easement).

Enforcement of Covenants to Pay Servient Owner for Use or Maintenance of Easement

Cohen v. Banks, 642 N.Y.S.2d 797 (Justice Ct.1996) (dominant tenement owner of water-main easement is liable in damages to servient owner co-user of easement for failure to pay proportionate share of repair costs if servient owner notified defendant of the need for repairs and provided reasonable opportunity to participate in decisions, and used reasonable care to see that repairs were performed adequately and properly and at a reasonable price; servient owner lost right to damages by refusing access to defendant to make her own repairs to the branch line servicing dominant tenement only, rendering line unusable; servient owner’s remedy for dominant owner’s failure to contribute to repair costs for water main did not include self-help of denying entry to dominant owner to make repairs necessary to connect her branch line to the water main; appropriate remedy was suit for damages or perhaps to enforce a forfeiture of the easement).

Enforcement of Easements Against Obstruction

Additional cases involving claims that servient owner unreasonably interfered with an easement or profit are collected in the Reporter’s Note to § 4.9, Servient Owner’s Right to Use Estate Burdened by Easement or Profit. Pelzer Homes, Inc. v. Alabama Power Co., 475 So.2d 558 (Ala.1985) (action to enjoin obstruction of easement and compel removal of structures built on easement is not ejectment action to recover possession; defendants not entitled to file counterclaim for adverse possession under statute permitting counterclaim when action is commenced to recover possession of land). Furrh v. Rothschild, 575 P.2d 1277 (Ariz.Ct.App.1978) (case remanded for new trial on claim of compensatory and punitive damages for wrongful interference with easement by scattering roofing nails on roadway used by horses and vehicles and destroying directional signs to guest ranch on dominant estate). Warsaw v. Chicago Metallic Ceilings, Inc., 676 P.2d 584 (Cal.1984) (servient owner properly ordered to remove portion of

building encroaching on easement acquired by prescription; structure was erected after declaratory judgment suit was filed and completed while litigation was pending; whether mandatory injunction is appropriate is within sound discretion of trial court and injunction may issue even if cost is great, especially when structure erected with knowledge of easement claim; court may not order payment for easement acquired by prescription; under circumstances, it would be inequitable to order plaintiff to contribute to cost of removing building). Williams Island Country Club, Inc. v. San Simeon at the California Club, Inc., 454 So.2d 23 (Fla.Dist.Ct.App.1984) (trial court erred in denying preliminary injunction preserving easement for golf carts between 13th and 14th holes; plaintiff made prima facie showing of implied easement and golf course could not be operated without it; plaintiff’s condominium and resort developments would be severely damaged without golf course). Rife v. Corbett, 455 S.E.2d 581 (Ga.1995) (trial court did not abuse discretion in granting interlocutory injunction against placing obstructions in roadbed of claimed easement). Borrowman v. Howland, 457 N.E.2d 103 (Ill.Ct.App.1983) (injunction requiring contract purchaser to remove farm building that interfered with drainage-channel easement upheld; damages would not be satisfactory remedy because structure would render proper maintenance impossible; even if maintenance only more difficult, easement is perpetual and damages remedy would require continuing suits; defendant is not innocent because easement was of record). General American Realty Co. v. Greene, 107 Ill.App.3d 1011, 438 N.E.2d 540 (1982) (injunction requiring servient owner to permanently remove all material that in any way encroached on or obstructed access to use, repair, or maintain utility easement, to remove portions of building that encroached on easement, and to refrain from obstructing easement properly granted without proof of substantial injury from the encroachment where easement expressly provided that servient owner would not obstruct easy and immediate access to the easement; where encroachment was deliberate, injunction is proper without regard to relative hardship). Mid-America Pipeline Co. v. Lario Enterprises, Inc., 942 F.2d 1519 (10th Cir.1991) (applying Kansas law, owner of easement entitled to mandatory injunction requiring removal of racetrack constructed over pipeline on showing that reasonable probability of injury exists, there is no adequate remedy at law, and rights under easement are clear; balancing of equities not proper where servient owner acted with knowledge of the easement and is therefore not innocent; Restatement Second, Torts § 936 is not in accord with Kansas authority). Mid-America Pipeline Co. v. Wietharn, 787 P.2d 716 (Kan.1990) (trial court’s grant of mandatory injunction requiring relocation of pipelines with 60% of cost allocated to easement owner and refusal to grant injunction ordering removal of buildings constructed over pipeline easement was abuse of discretion where buildings created continuing violation of easement provision prohibiting use by servient owner that would interfere with normal operation and maintenance of pipelines). Harthcock v. Hurst, 413 So.2d 636 (La.Ct.App.1982) (injunction requiring restoration of easement to original condition by removal of boat house and flower bed bordered by railroad crossties and damages for replacement of septic tank blocked by owner of servient estate upheld). Patin v. Richard, 357 So.2d 1285 (La.Ct.App.1978) (easement holder is entitled to preliminary injunction against interference with easement without showing of irreparable injury). Fine Line, Inc. v. Blake, 677 A.2d 1061 (Me.1996) (punitive damages are available in action for obstruction of easement if conduct was motivated by actual ill will or was so outrageous that malice is implied; it was not error to deny punitive damages for servient owner’s threat to shoot persons trying to use the easement where pleadings did not assert claim for punitive damages and issue was not tried by consent). Mondelli v. Saline Sewer Co., 628 S.W.2d 697 (Mo.Ct.App.1982) (interference with or obstruction of easement is a nuisance; easement holder is entitled to damages proximately caused by wrongful interference; if obstruction is temporary, measure of damages is the reduction in rental value of the property during the maintenance of the obstruction; if permanent, the measure is the difference in value of the property before and after the interference occurred; easement holder is also entitled to injunctive relief; interference is permanent if it extinguishes access to the dominant estate; removal of retaining wall causing erosion to roadway is temporary because access has not been extinguished). M.H. Siegfried Real Estate, Inc. v. Renfrow, 633 S.W.2d 272 (Mo.Ct.App.1982) (judgment for $5,316.57 actual damages for reduction in rental value during period of obstruction of easement and $1,000 for punitive damages upheld). Tanner v. Dream Island, Inc., 913 P.2d 641 (Mont.1996) (injunction against obstruction of easements acquired by prescription was proper). Rhodes v. Tanner, 591 S.W.2d 90 (Mo.Ct.App.1979) (lot owners entitled to injunction against erecting barriers, gates, or fences on any roads shown on subdivision plat where declaration granted each lot an easement over all roads shown on plat without regard to damages sustained by them; even though only 13 lots out of 146 were ever sold and remainder were purchased by defendant for use as cattle ranch, defendant was not entitled to barricade roads not necessary for access to plaintiffs’ lots). Camino Sin Pasada Neighborhood Ass’n v. Rockstroh, 889 P.2d 247 (N.M.Ct.App.1994) (trial court’s refusal to award damages for blocking easement upheld where damage claimed due to increased travel time and increased wear and tear on vehicles was at best speculative and there was no evidence of actual medical emergency or monetary damage incurred; claim for damage to truck resulting from its hitting railroad tie used as gatepost was not supported).

Consolidated Rail Corp. v. MASP Equip. Corp., 67 N.Y.2d 35, 490 N.E.2d 514 (1986) (order requiring removal of obstructions from easement within 45 days and permanent injunction against encroachment on easement were appropriate, but judgment requiring payment of $1,000 per day for each day after deadline that defendant failed to remove obstructions from easement could not be sustained as penalty because fines for civil contempt are limited to actual damage or $250 plus costs, as liquidated damages, because there was no contractual provision or proof of actual damage sustained, or as punitive damages in absence of proof that interference with easement was malicious, vindictive, morally culpable, wanton, or reckless). Lake Anne Homeowners Ass’n v. Lake Anne Realty Corp., 640 N.Y.S.2d 200 (App.Div.1996) (trial court properly granted injunction against landlord’s interference with tenants’ easements granted in leases and compensatory damages for repair of ditches dug along roadway, but erred in awarding attorney’s fees without statutory authority and improvidently exercised discretion in awarding treble damages; punitive damages were properly denied). Shortt v. Bleier, 598 N.Y.S.2d 632 (App.Div.1993) (order directing removal of dock erected at end of pathway leading to St. Lawrence River shore proper where dock interfered with right to full and complete use of easement). 487 Elmwood, Inc. v. Hassett, 486 N.Y.S.2d 113 (App.Div.1985) (tenant entitled to damages measured by diminution in usable value of the property for balance of lease term against new tenant that obstructed parking easement by construction of building, and against landlord for partial eviction; damages against landlord for loss of profits and rent attributable to parking lot destroyed; damages may be arrived at differently depending on plaintiff’s relationship to defendants, but injury is single and plaintiff is entitled to only one satisfaction). Filby v. Brooks, 105 A.D.2d 826, 481 N.Y.S.2d 865 (1984), aff’d, 495 N.Y.S.2d 362 (N.Y.1985) (plaintiff is entitled to removal of barrier blocking easement, but is not entitled to have barrier restored to former position). Knott v. Washington Housing Auth., 318 S.E.2d 861 (N.C.Ct.App.1984) (damages for destruction of access easement acquired by implication from prior use or necessity properly valued by difference between value of property with and without the easement immediately after the destruction). Shippy v. Hollopeter, 304 N.W.2d 118 (S.D.1981) (award of $700 damages for loss of profits due to delay in cropping 40-acre tract caused by obstruction of easement was proper; even though exclusion was forcible, treble damages were not justified because defendants held possession of servient estate under claim of right and valid issue existed as to possible termination of easement). Dean v. Wilbur, 484 S.W.2d 798 (Tex.Ct.Civ.App.1972) (preliminary injunction requiring removal of gate and lock from roadway was justified on showing of probable easement right to preserve status quo).

Use by Servient Owner That Does Not Interfere with Current Use of Easement

Lakeside Assoc. v. Toski Sands, 346 N.W.2d 92 (Mich.Ct.App.1983) (injunction requiring removal of servient owner’s improvements to easement properly denied where they did not interfere with dominant owner’s current or foreseeable future use of easement and court retained jurisdiction to give relief to dominant owner if future development of dominant estate required additional use of easement). O’Hara v. Wallace, 382 N.Y.S.2d 350 (App.Div.1976) (because no present necessity exists for use of entire roadway shown on plat map, defendant need only be ordered to remove obstructions from 4-foot width needed for walkway to the ocean).

Enforcement Against Excessive or Unauthorized Use of Easement

Additional cases involving claims of excessive use of easements are collected in § 4.10, Use Rights Conferred by Easements and Profits. Hullar v. Glider Oil Co., Inc., 219 A.D.2d 825, 631 N.Y.S.2d 971 (1995) (injunction directing removal of 2 concrete islands constructed in violation of terms of recorded easement was proper even though there was only nominal damage; unlawful use of easement was continuing trespass on servient estate).

Federal Avigation Servitude

Fiese v. Sitorius, 526 N.W.2d 86 (Neb.1995) (federal statute grants public right of freedom of transit through navigable airspace including space needed to insure safety in take-off and landing of aircraft but preempts remedies; under statute no private right of action lies; sole remedy is filing complaint with Secretary of Transportation or Civil Aeronautics Board).

Statute of Limitations

Barker v. Jeremiasen, 676 P.2d 1259 (Colo.Ct.App.1984) (1979 action for injunction not barred by statute of limitations; horse-breeding operation begun in 1974 created repeated and successive breaches of covenant prohibiting activity that constituted an annoyance and nuisance to the neighborhood; covenant imposed continuing obligation). Heard v. Whitehall Forest East Homeowners Ass’n, Inc. 495 S.E.2d 318 (Ga.Ct.App.1997) (2-year statute of limitations for breach of “covenant restricting land to certain uses,” rather than 6-year statute on a “simple contract in writing” applies to

action to enforce condominium assessment covenant on assessments accruing prior to July 1995; new 4-year statute on actions for breach of covenant for failure to pay assessments or fees applies to later assessments). Forfeiture, Comment c. Forfeiture of the burdened property as a remedy for violation of general-plan covenants in residential subdivisions is not available under the rule stated in § 8.4. If expressly provided for, breach of a condition may lead to termination of a servitude under the rules stated in §§ 7.1 and 7.2. Harris & Gurganus, Inc. v. Williams, 246 S.E.2d 791 (N.C.Ct.App.1978) (plaintiff not barred by delay of 3 years and 3 months from date of breach in filing suit to enforce covenant requiring reconveyance if construction not commenced within 2 years from date of delivery of deed; plaintiff had demanded that defendant comply and filed suit when defendant returned to U.S. from Tahiti; defendant failed to show that delay was unreasonable; lapse of time is not most important element in determining whether laches is available as a defense; question is whether delay results in an inequity based on some change in the condition or relations of the property and the parties; 10-year statute of limitations applies). Parolisi v. Beach Terrace Imp. Ass’n, 463 A.2d 197 (R.I.1983) (termination of easement under clause providing for forfeiture upon any misuse of easement, defined as any use for purpose other than ingress and egress from the beach or use by persons not association members, properly denied; violations were minor; equity abhors forfeiture and trial court properly balanced equities by enjoining further misuse and ordering association to lock the entrance and restrict keys to association members). Knight v. Utz, 673 S.W.2d 161 (Tenn.Ct.App.1984) (forfeiture is not appropriate remedy for overuse of easement for common driveway; proper remedy is to enjoin unauthorized use). Attorney fees, Comment d. Additional discussion of the propriety and amount of appropriate attorney fees in cases involving common-interest communities may be found in § 6.8, Enforcement Powers of Associations and § 6.13, Duties of Common-Interest Community to Members. Westwood Homeowners Ass’n v. Tenhoff, 745 P.2d 976 (Ariz.Ct.App.1987) (defendant entitled to attorney fees in action to enforce covenant held invalid as against public policy under statute providing for award of attorney fees in contested action arising out of contract). Pinetop Lakes Ass’n v. Hatch, 659 P.2d 1341 (Ariz.Ct.App.1983) (action to enforce restrictive covenants is action arising out of contract within meaning of statute providing that court may award successful party reasonable attorney fees). Furrh v. Rothschild, 575 P.2d 1277 (Ariz.Ct.App.1978) (party seeking to quiet title to prescriptive easement is entitled to attorney fees under statute providing that if, 20 days before bringing the action, plaintiff requests adverse party to execute a quitclaim deed and tenders $5, and other person refuses, court may award attorney fees to the plaintiff; tender of deed, subject to condition that if easement is no longer used for purpose set forth in complaint, it terminates, does not meet statutory requirement; prescriptive easement does not terminate when no longer necessary or used). Deane Gardenhome Ass’n v. Denktas, 16 Cal.Rptr.2d 816 (Cal.Ct.App.1993) (homeowner entitled to attorney fees for successful defense of association’s suit seeking injunction requiring homeowner to repaint house a different color; it was abuse of discretion to deny attorney fees to homeowners where judgment entered was a simple unqualified win; that homeowners behaved unpleasantly or prevented dispute from being resolved in small-claims court because they refused to repaint and sue association for damages or allow association to repaint and sue them for the cost does not make their attorney fees unreasonable; $15,000 is reasonable given association’s own claim for fees in excess of $16,000 up to time of trial). Harbor View Hills Community Ass’n v. Torley, 7 Cal.Rptr.2d 96 (Cal.Ct.App.1992) (1983 statute expanding provision for attorney fees with respect to certain provisions of contract to cover entire contract applies to CC&R’s created in 1971; association entitled to attorney fees for successful enforcement of covenant requiring prior approval for addition to home even though CC&R’s provided attorney fees only for collection of delinquent assessments; judgment for prejudgment fees of $98,735 reinstated and remanded for award of reasonable postjudgment fees, including fees for appeal). Share v. Casiano Bel-Air Homeowners Ass’n, 263 Cal.Rptr. 753 (Cal.Ct.App.1989) (homeowners are entitled to attorney fees against association if they were prevailing party in civil-contempt action brought to secure enforcement of the CC&R’s; prevailing party is the one who obtained a greater relief in the action on the contract; court should consider extent of relief sought by homeowners with respect to enforcement of the covenants and the extent to which their efforts were successful). Reynolds Metals Co. v. Alperson, 599 P.2d 83 (Cal.1979) (statute [Cal. Civ. Code § 1717] providing for mutuality of remedy where contractual provision makes attorney fees available to only one party applies to nonsignatory defendants sued on the contract as if they were parties). Ares v. Cypress Park Garden Homes I Condominium Ass’n, Inc., 696 So.2d 885 (Fla.Dist.Ct.App.1997) (prevailing-party fees can be awarded based on settlement of a claim; in suit involving multiple claims, prevailing party on each claim is entitled to an award for fees produced in association with that claim; statute providing attorney fees to prevailing party in action under Condominium Act does not authorize fees in action for accounting; unit owner entitled to fees on claim for injunction requiring association to comply with applicable statutes and condominium documents). Jakobi v. Kings Creek Village Townhouse Ass’n, Inc., 665 So.2d 325 (Fla.Dist.Ct.App.1995) (declaration of covenants for townhouse association is contract within meaning of statute mandating that contractual attorney-fees provisions be reciprocal; homeowner entitled to fees as prevailing party after settlement of lawsuit in which association agreed to allow owner to install screening; statute applied to 1992 townhome purchaser even though declaration became effective prior to effective date of statute; purchase of townhome effects novation of contract because new owner becomes personally liable on covenants and previous owner is discharged).

Imperial Terrace East Homeowner’s Ass’n v. Grimes, 649 So.2d 301 (Fla.Dist.Ct.App.1995) (provision in covenants that attorney fees be awarded to prevailing party in action to foreclose lien for assessments is not discretionary; case remanded for award of fees and costs). Association of Poinciana Villages, Inc. v. Moore, 630 So.2d 229 (Fla.Dist.Ct.App.1994) (trial court lacked discretion to decline to award attorney fees to prevailing party in action to enforce deed restrictions). Gittelmacher v. Anttila, 595 So.2d 237 (Fla.Dist.Ct.App.1992) (unit owner who successfully sued neighboring unit owner for negligence for damage caused by broken water pipe entitled to attorney fees; declaration provided that each owner was responsible for expenses caused by his negligence and that prevailing party was entitled to attorney fees in any suit arising from owner’s alleged failure to comply with declaration; statute also provided that prevailing party was entitled to attorney fees in suit for failure to comply with declaration). Kirou v. Oceanside Plaza Condominium Ass’n, Inc., 425 So.2d 650 (Fla.Dist.Ct.App.1983) (award of attorney fees to association as well as to unit owner was error; association lost main action to cancel pet agreement and remove dogs; association’s successful defense of claim seeking declaration that rules did not apply to the situation did not make association the prevailing party; notwithstanding the intermediate skirmish, which had no effect on the ultimate result, unit owner plainly won and association plainly lost because at the end, the dogs were still there). Brickell Bay Club Condominium Ass’n, Inc. v. Forte, 397 So.2d 959 (Fla.Dist.Ct.App.1981) (prevailing party entitled to attorney fees even though litigation was brought in good faith and on fairly debatable grounds where contract provided that prevailing party in any litigation arising out of contract was entitled to recover attorney fees and costs). Dolphin Towers Condominium Ass’n, Inc. v. Del Bene, 388 So.2d 1268 (Fla.Dist.Ct.App.1980) (association entitled to attorney fees as prevailing party after unit owners voluntarily dismissed suit seeking injunction requiring removal of trellis and trees from common area; fact that owner immediately filed new action on same cause of action but joining additional party claimed indispensable by association was irrelevant). Mainlands of Tamarac by the Gulf Unit No. Four Ass’n, Inc. v. Morris, 388 So.2d 226 (Fla.Dist.Ct.App.1980) (statute providing for attorney fees to prevailing party in actions between unit owners, associations, and developer’s directors does not apply to suits involving management company). Ellis v. Gallof, 469 S.E.2d 288 (Ga.Ct.App.1996) (where each party recovered against the other on breach of restrictive covenant and nuisance claims, neither was established as prevailing party entitled to attorney fees under statute). Forest Lakes Home Owners Ass’n v. Green Ind., Inc., 463 S.E.2d 723 (Ga.Ct.App.1995) (attorney fees properly awarded to defendant lot owner dismissed from case pursuant to settlement with developer under statute providing for assessment of fees if trial court finds that a party brought or defended an action that lacked substantial justification or unnecessarily expanded the proceedings; claim against lot owner was based on claim of implied servitudes under general plan, but minimal diligence in reviewing public lots would have revealed that lots had been sold piecemeal over the years; several appellants were also in violation of the covenants included in plaintiff’s deeds, and some parties claiming oral representations by developer had not purchased from developer). 400 Condominium Ass’n, v. Wright, 608 N.E.2d 446 (Ill.Ct.App.1992) (award of $8,000 to association for attorney fees was not abuse of discretion; amount at issue was only $7,455, trial lasted only 2 days; little preparation should have been required; exorbitant time spent by association’s counsel in attempt to prepare an adequate petition for fees suggests that enormous amount of time spent on the case resulting in over $24,000 in fees must have been due to inadequacy in the quality of time spent; even though unit owner changed counsel 5 times and association attorneys had 17 court appearances, no research and minimal preparation time was required for most; no further attorney fees would be awarded for defending appeal). Board of Managers of Village Square I Condominium Ass’n v. Amalgamated Trust & Sav. Bank, 494 N.E.2d 1199 (Ill.Ct.App.1986) (association, request for assessment of attorney fees in action to enforce restrictions against use of property as day-care center was not attempt to levy a fine or penalty that triggered requirement for notice and hearing before condominium board). Verni v. Imperial Manor of Oak Park Condominium, Inc., 425 N.E.2d 1344 (Ill.Ct.App.1981) (association not entitled to award of attorney fees for defense of action to compel association to disclose its books and records, even though related to association’s action to collect assessments; provisions in declaration and statute for attorney fees applied only to action to collect assessments). Brendonwood Common v. Franklin, 403 N.E.2d 1136 (Ind.Ct.App.1980) (community-association bylaws providing for interest, attorney fees, and costs constitute a contract between it and the members; interest and attorney-fee provisions are enforceable and trial court was obliged to award them). Travasos v. Stoma, 672 So.2d 1070 (La.Ct.App.1996), writ denied, 679 So.2d 1343 (La.1996) (successful plaintiff not entitled to attorney fees under covenant provision that any person owning a lot in the subdivision may prosecute any proceedings to recover “damages or other dues” for violation of the covenants; other dues does not include attorney fees). Fine Line, Inc. v. Blake, 677 A.2d 1061 (Me.1996) (statute authorizing award of attorney fees when trespasser has damaged or carried away property from land not owned by the trespasser does not apply in action against servient owner for wrongful interference with easement; interference with easement is a nuisance, not a trespass, and servient owner owns the land). Dominion Home Owners Ass’n, Inc. v. Martin, 953 S.W.2d 178 (Mo.Ct.App.1997) (trial court did not abuse discretion in

awarding association entitled under declaration to attorney fees incurred in collecting assessments a reasonable-fee amount even though award was higher than amount association was obligated to pay under contingent-fee contract; private relationship between association and its counsel is not material to award against delinquent homeowner). Stokes v. Board of Dir. of La Cav Imp. Co., 654 So.2d 524 (Mo.Ct.App.1995) (finding that construction of boat slip did not violate restrictions required reversal of award of attorney fees to association). Reintsma v. Lawson, 727 P.2d 1323 (Mont.1986) (award of attorney fees and costs entered under the guise of punitive damages was not appropriate though award of punitive damages might be proper). Tanner v. Dream Island, Inc., 913 P.2d 641 (Mont.1996) (absent statutory or contractual authority, attorney fees will not be awarded as part of compensatory damages except in isolated instances where necessary to make a party whole or in which bad faith or malicious behavior is involved; defendant’s erection of fence around her property that blocked easements was not so reprehensible that trial court abused discretion in denying award of attorney fees; test for abuse of discretion is whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice). Jordan v. Elizabethan Manor, 593 P.2d 1049 (Mont.1979) (attorney fees should not be awarded until the entire case between the parties has been concluded). Lake Anne Homeowners Ass’n v. Lake Anne Realty Corp., 640 N.Y.S.2d 200 (App.Div.1996) (trial court properly granted injunction against landlord’s interference with tenants’ easements granted in leases and compensatory damages for repair of ditches dug along roadway, but erred in awarding attorney fees without statutory authority and improvidently exercised discretion in awarding treble damages; punitive damages were properly denied). Four Seasons Homeowners Ass’n, Inc. v. Sellers, 323 S.E.2d 735 (N.C.Ct.App.1984) (attorney fees incurred in collecting delinquent assessments limited by statute to 15% of indebtedness). Nottingdale Homeowners’ Ass’n v. Darby, 514 N.E.2d 702 (Ohio 1987) (association entitled to $12,000 attorney fees in successful action to collect $2,500 in assessments). Donaca v. Ivall, 605 P.2d 709 (Or.Ct.App.1980) (declaration of covenants is a contract within meaning of statute providing that, if contract specifically provides for award of attorney fees to one party, prevailing party is entitled to attorney fees, whether or not specified in the contract; however, attorney fees on appeal were not available because not specifically provided for in the declaration). Shipler v. Van Raden, 599 P.2d 1141 (Or.Ct.App.1979) (attorney fees not recoverable because not pleaded or proved at trial where statutedistinguishes between attorney fees and costs; claim to fees made pursuant to statute providing for enforcement of contractual provision for attorney fees). Wild Acres Lakes Property & Homeowners Ass’n, 690 A.2d 794 (Pa.Commw.Ct.1997) (lot owner held liable for unpaid assessments also liable for attorney fees despite “good faith belief” that no assessments were due where association bylaws provided for attorney fees). Giles v. Cardenas, 697 S.W.2d 422 (Tex.Ct.App.1985) (plaintiff entitled to injunction requiring removal of fence built in violation of restrictions, but $10,000 attorney-fee award was too high where defendant presented no evidence). Arthur M. Deck & Assoc. v. Crispin, 888 S.W.2d 56 (Tx.Ct.App.1994) (award of $23,526 to defendant lot owners who prevailed in establishing that amended restrictions were valid as applied to defendant’s lots; award discretionary in declaratory-judgment action and trial court’s award would not be reversed without clear showing of abuse of discretion; trial court could have concluded that even though other causes of action were alleged, all of fees incurred by defendants were related to the declaratory-judgment action). Sassen v. Tanglegrove Townhouse Condominium Ass’n, 877 S.W.2d 489 (Tex.Ct.App.1994) (unit owner who prevailed in suit against association for breach of contract is entitled by statute to attorney fees; judgment rendered for $16,500 found by jury). Nelson v. Jordan, 663 S.W.2d 82 (Tex.Ct.App.1983) (award of attorney fees to prevailing party in action based on breach of restrictive covenant is mandatory under Tex. Rev. Civ. Stat. Ann. Art. 1293b (1980)). Inwood North Homeowners’ Ass’n, Inc. v. Meier, 625 S.W.2d 742 (Tex.Ct.Civ.App.1981) (award of attorney fees to prevailing party in action based on breach of restrictive covenant under statute). Riss v. Angel, 934 P.2d 669 (Wash.1997) (en banc) (lot owner held entitled to damages for unreasonable rejection of building plans was prevailing party entitled to attorney fees; issues of validity of covenants and right to control exterior finish of house on which association prevailed were minor and had no significant impact on expense of trial). White v. Wilhelm, 665 P.2d 407 (Wash.Ct.App.1983) (defendants entitled to attorney fees incurred in pretrial efforts to dissolve injunction dissolved at trial). Factors other than the nature of the servitude may determine the availability and choice of remedy, Comment e.

In General Courts Balance Equities

Reynolds v. The Four Seasons Condominium Ass’n, Inc., 462 So.2d 738 (Ala. Ct. Civ. App. 1984) (association estopped to demand removal of patio enclosure even though patio was common element where contract for purchase of unit included provision that buyer would be permitted to enclose patio, seller then owned 100% of units, board in 1980 passed resolution

allowing enclosure of patios in units that did not face other units, new board in 1981, after turnover, had actual knowledge of construction of enclosure, but no action was taken until another new board in 1982 decided to demand removal of enclosure). Posey v. Leavitt, 280 Cal.Rptr. 568 (Cal.Ct.App.1991) (unit owner should not automatically receive injunction against small encroachment into common area; trier of fact should exercise discretion and weigh relative hardships in encroachment cases; doubtful cases should be decided in favor of plaintiff; to deny the injunction, defendant must be innocent; if plaintiff will suffer irreparable injury, injunction should be granted regardless of injury to defendant unless rights of public will be adversely affected; hardship to defendant must be greatly disproportionate to hardship caused the plaintiff by continuance of encroachment; if these factors exist, injunction should be denied; otherwise court would lend itself to what practically amounts to extortion). Liu v. Dunnigan, 333 A.2d 338 (Md.Ct.Spec.App.1975) (equitable doctrine of comparative hardship has been adopted in Maryland; it basically provides that court may decline to issue injunction where the hardship and inconvenience that would result is greatly disproportionate to the harm to be remedied; innocent mistake by party to be enjoined is a relevant factor; substantial interests of neighbors in preserving the residential integrity of their community is not outweighed by interests of doctor in maintaining office in his home where, of total $15,000 spent on office, $9,000 was spent after he learned of neighbors’ objections). Appel v. Presley Cos., 806 P.2d 1054 (N.M.1991) (court of equity will not enforce restrictions if circumstances render enforcement inequitable; in deciding whether to issue injunctive relief, court may consider character of the interest to be protected, relative adequacy to plaintiff of injunction as compared to other remedies, delay, if any, in bringing suit, misconduct of plaintiff, if any, the interest of third persons, the practicability of granting and enforcing the order or judgment, and the relative hardship likely to result to defendant if injunction is granted and to plaintiff if injunction is denied). Meadow Run Dev. Corp. v. Atlantic Ref. & Mktg. Corp., 547 N.Y.S.2d 697 (App.Div.1989) (restrictive covenants are generally enforceable against subsequent purchasers with notice but will not be enforced in inequitable circumstances, such as where there is a change of character of the surrounding area that obviates the purposes of the restrictions, where the party seeking enforcement is guilty of laches, or where enforcement would result in a detriment disproportionate to any benefit). Holmes Harbor Water Co. v. Page, 508 P.2d 628 (Wash.Ct.App.1973) (denial of injunction requiring neighbors to remove or lower roof violating height restriction was within trial court’s discretion; defendants acted innocently and attempted to comply with covenant; application of covenant was not clear; plaintiffs delayed bringing suit until construction was complete; plaintiffs failed to prove any injury; and cost of removal was exorbitant compared to slight violation of covenant). Laches, waiver, estoppel, and unclean hands may be considered, Comment f. Armbrust v. Golden, 594 So.2d 64 (Ala.1992) (lot owners not estopped from enforcing residential-use restriction against garage business by failure to object to other business uses; the other businesses were basically service-related, e.g., plumbing, cake-baking, brick masonry, etc., and many of the owners of the businesses only accepted telephone calls at their residences and actually performed their tasks away from their homes; even if some work or storage of equipment was done on other lots, the garage was the only business noticeable to passersby). Tubbs v. Brandon, 374 So.2d 1358 (Ala.1979) (restrictive covenants in deeds will be enforced even though other owners of lots in the subdivision have violated the restrictions without objection where restrictions remain of value to plaintiff and other violations did not substantially affect plaintiff’s property; lapse of time alone does not establish laches; prejudice sufficient to make disregard of the delay inequitable must result from plaintiff’s delay). Bayless Inv. & Trad. Co. v. Bekins Moving & Stor. Co., 547 P.2d 1065 (Ariz.Ct.App.1976) (judge abused discretion in granting preliminary injunction against obstructing access to parking lot on defendant’s parcel covered by reciprocal parking easement; plaintiff had originally suggested separating the parking lots by concrete barriers to prevent overuse of parking spaces on its parcel, had placed a sign on its lot excluding anyone other than its customers or employees, had failed to object to use of defendant’s parcel as a commercial lot for more than a year, and, when apprised of defendant’s plan to lease its parcel for inconsistent uses, led defendant to believe there would be no objection and did not file suit until lease had been entered and substantial expenditures made on improvements; whether expressed in terms of laches, estoppel, change of conditions, relative hardship, or a combination thereof, it would be unfair, unjust, and inequitable to grant injunctive relief to plaintiff). McRae v. Lois Grunow Memorial Clinic, 14 P.2d 478 (Ariz.1932) (court properly exercised discretion to refuse injunction where plaintiffs did not have clean hands because they led defendant to believe they welcomed construction of clinic, suit was not filed until parcel had been assembled and purchased, and 10 days had passed from beginning of excavation for foundation; preliminary injunction not sought and suit was not pressed for trial until after completion of clinic; injunction would cause much greater hardship and loss to defendant than could possibly be suffered by requiring plaintiffs to resort to action for damages; plaintiffs appeared to have conceived the idea of encouraging defendant to buy the lots and locate the clinic in the subdivision while secretly intending to enjoin its construction unless their lots were purchased at their price; injunction may be refused where defendant acted in good faith, plaintiff was guilty of laches, or defendant’s conduct was not willful and inexcusable, and granting injunction would cause damage to defendant disproportionate to injury to plaintiff and damages will adequately compensate the plaintiff). Gentry v. Stricklin, 461 S.W.2d 580 (Ark.1971) (parties who are in substantial breach of covenant restricting use of property to residential purposes and structures to single-family dwellings not entitled to injunction against breach of the same

covenant by others). Briarwood Apartments v. Lieblong, 671 S.W.2d 207 (Ark.Ct.App.1984) (subdivision lot owners not barred from seeking injunction against use of subdivision lot as roadway for access to apartment located outside of subdivision by failing to object to construction of apartment house and by waiting to file suit until defendant paved road when apartment was from 80% to 90% complete; lot owners had protested use of the lot for access to the site from the beginning of the project; lot owners had no basis to seek injunctive relief against construction of apartment building; defendant knew of the restrictions and knew of lot owners’ objections; suit was filed within 24 days after paving made it clear that defendant intended permanent use of the lot as a roadway; one who openly defies a known right in the absence of anything to mislead him is not in a strong position to urge failure by others to take instant resort to the courts as a bar to relief). Moore v. Serafin, 301 A.2d 238 (Conn.1972) (court properly refused to grant injunction ordering removal of mausoleum erected in violation of restrictions included in deeds to burial plots where evidence established that plaintiff, an individual plot owner, did not complain for 2 years after construction, defendant’s husband was buried there, defendant’s health would be seriously affected by removal, and cemetery owner had granted permission for its construction). Brookside Community, Inc. v. Williams, 290 A.2d 678 (Del.Ct.Ch.1972) (failure to enforce covenant restricting kinds of fences that may be built on rear- and side-lot lines does not waive right to enforce covenant prohibiting fences on front-lot lines). Williams v. Tsiarkezos, 272 A.2d 722 (Del.Ct.Ch.1970) (plaintiffs’ violation of fence height restriction does not bar them from enforcing residential-only covenant against day-care center; nor does operation of nonexistent sales company as device to acquire goods at reduced prices, or automobile-rebuilding project in the nature of a hobby; failure to object to violations of fence-height restrictions is not waiver of right to object to nonresidential use; failure to object to use of home for engineering consulting service with minimal impact is not waiver of right to object to day-care center that generates substantial noise and traffic; suit not barred by laches where day-care center began in 1966 as small baby sitting project for 2 or 3 young children and expanded to 12 children by late 1968; neighbors objected at public hearing on application to expand to 25 children and filed suit shortly after county granted application; even if immediate neighbors were guilty of laches, more remote neighbors had no reason to object until project began to grow and noise and traffic problems became apparent). Mizell v. Deal, 654 So.2d 659 (Fla.Dist.Ct.App.1995) (waiver is intentional or voluntary relinquishment of a known right, or conduct which implies the relinquishment; fact that developer did not take action to enforce covenant limiting maintenance of trailer on property to 2 years until an additional 18 months had passed did not constitute clear conduct necessary to constitute waiver or constitute the long acquiescence in persistent, obvious violations necessary to prevent enforcement of the restrictions; there was no evidence that lot owners relied to their detriment on any representation that mobile homes would be permanently permitted; estoppel based on silence cannot exist where the parties have equal knowledge of the facts or the same means of ascertaining that knowledge). Davies v. Curry, 196 S.E.2d 382 (Ga.1973) (interlocutory injunction properly denied on ground of laches where plaintiffs were aware of structural changes being made to use residence as beauty parlor at least by June, when remodeling started, but did not file suit until end of July, when remodeling was nearly complete and defendants had spent between $12,000 and $15,000). Sandstrom v. Larsen, 583 P.2d 971 (Haw.1978) (exemption of 2 lots from height limit and failure to enforce height limit against 3 other lots where 2-to 3-story houses were built did not constitute waiver of one-and-one-half-story restriction because the structures did not obstruct the views from other lots in subdivision due to their location; court need not consider relative hardship where a property owner deliberately and intentionally violates a valid, express restriction or takes a chance by proceeding with construction before court has ruled on waiver or changed-conditions claim). Knolls Ass’n v. Hinton, 71 Ill.App.3d 205, 389 N.E.2d 693 (1979) (failure to object to tasteful sign in keeping with residential character of neighborhood on north side of mixed-use building where signs were prohibited did not waive association’s right to object to 32-foot yellow neon signs on east and south sides of building where signs limited to 5 square feet were permitted; changes in use of area outside of subdivision do not prevent enforcement of covenant where the character of the subdivision has not substantially changed; evidence does not establish that it would be unreasonable or oppressive to continue to enforce the covenants providing for a residential atmosphere). Cordogan v. Union Nat’l Bank of Elgin, 64 Ill.App.3d 248, 380 N.E.2d 1194 (1978) (that 1 lot owner kept cement mixer in driveway did not given him dirty hands preventing him from enforcing covenant against construction of duplex on property restricted to single-family dwelling). Exchange Nat’l Bank v. City of Des Plaines, 336 N.E.2d 8 (Ill.Ct.App.1975) (acquiescence of other lot owners in use of 2 of 25 lots for church and parochial school did not give plaintiff the right to have residential-only restriction removed to permit construction of large commercial building; churches are common in residential areas). Rushing v. Camp, 311 N.E.2d 757 (Ill.Ct.App.1974) (acquiescence in prior violations of covenant requiring that homes be built entirely of brick waived right to object to defendant’s houses that will have brick on 1 side only with brick decoration in front; minor violations of a deed restriction do not prohibit subsequent enforcement, but acquiescence in prior violations of a particular restriction does constitute waiver). Oakes v. Hattabaugh, 631 N.E.2d 949 (Ind.Ct.App.1994) (order granting injunction to neighboring landowner who waited over 2 years before objecting to construction of barn and use of property for keeping horses and donkeys and maintenance of

sign reading “Oakshire Estate and Stables” at driveway entrance reversed; neighbor’s laches would make injunction inequitable; servient owner built new home on the property and purchased additional land after 3 horses, barn, fence, and sign had been on the property without objection from the neighbors; neighbor did not seek injunction until sued by servient owner for contribution to cost of improving shared driveway). Highland v. Williams, 336 N.E.2d 846 (Ind.Ct.App.1975) (injunction requiring removal of manufactured home not excessive where defendant had actual knowledge of restrictions before he began installation). Mid-America Pipeline Co. v. Wietharn, 787 P.2d 716 (Kan.1990) (mandatory injunction requiring removal of buildings erected over pipelines should have been granted despite passage of 14 years since first building erected; easement owner did nothing to mislead servient owner and repeatedly objected to construction of each additional building and advised servient owner of danger; balancing hardships not appropriate where servient owner proceeded to build over pipelines with full knowledge of their existence and despite repeated warnings by easement owner that situation was dangerous). McColm v. Stegman, 596 P.2d 167 (Kan.Ct.App.1979) (plaintiffs had not waived right to enforce recorded covenant prohibiting mobile homes by consenting to use of lots 5-7 for a mobile-home site from 1967 until 1973 and failing to object to location of a mobile home on the parcels from 1973 to 1976, or in failing to enforce against the owner of another lot; there was no mobile home on the lots when defendants purchased; plaintiffs indicated intent to attempt enforcement against the other mobile home in the plat, and plaintiffs’ home was expensive and well-maintained and would be of greater value if covenants enforced; defendants had rented the property for 2 mobile homes and had made no permanent improvements other than installation of utilities). Holmquist v. D-V, Inc., 563 P.2d 1112 (Kan.Ct.App.1977) (use of 7 lots out of 108 for commercial purposes in major violation of covenants, including 3 for multifamily dwellings, did not prevent issuance of injunction against use of other lots for multifamily dwellings; all the violations were located on lots abutting lots reserved for commercial development on the western side of the restricted properties; defendant’s lots were located in the northeast corner and east side of the subdivision and might still serve the purpose of protecting the single-family character of the restricted properties). Antis v. Miller, 524 So.2d 71 (La.Ct.App.1988), writ denied, 531 So.2d 271 (La.1988) (failure of other lot owners to object to construction and maintenance of multifamily housing project on lots 53 through 75 of subdivision in violation of single-family use restrictions and setback requirements indicates development plan has been abandoned). Cook v. Hoover, 428 So.2d 836 (La.Ct.App.1983) (trivial violations by operation of small, unobtrusive home businesses disclosed by record do not manifest intent to abandon the residential restrictions; failure to object to operation of day-care center for 6 to 8 children does not waive right to enforce covenants against day-care center for 87 children; where previous violations did not immediately affect the enjoyment of his own premises, property owner will not be prevented from objecting to further violations that more substantially affect enjoyment of the premises). Gwatney v. Miller, 371 So.2d 1355 (La.Ct.App.1979) (acquiescence in use of lots by owner who sells real estate from home, another who sells shrimp from home, another who sells tomato plants grown on his property, owner who advertises concrete business using home telephone, and owner who parks school bus she drives for a living on her property does not manifest intent to abandon plan of development that prohibits nonresidential use of lots; no outward manifestation of nonresidential activities appears from photographs; technical violations fail to establish general intent to change substantially intended nature of subdivision; injunction against use of lot for storage of street-fair equipment properly issued). Allen v. Forbess, 345 So.2d 950 (La.Ct.App.1977) (failure to enforce against violations of covenants by small in-home business for beauty shop, piano lessons, gun repair, water-meter calibration, and drawing house plans did not waive right to enforce against worm farm; violations must be compared as to similarity of character, proximity, notoriety, number, and duration; no finding of abandonment justified unless violations result in substantial change in intended nature of the subdivision that subverts the original scheme; previous violations by indoor activities did not waive right to enforce against 35 outdoor worm beds visible to the public). Potomac Elec. Pwr. Co. v. Lytle, 328 A.2d 69 (Md.Ct.Spec.App.1974) (5-year delay in filing suit to enjoin obstruction of easement acquired by prescription did not establish laches defense where period was spent negotiating for land swap with plaintiff to eliminate easement claim; abandonment would take place only after 20 years; defendant did not establish prejudice or injury as result of delay). Chevy Chase Village v. Jaggers, 275 A.2d 167 (Md.Ct.App.1971) (waiver of residential-only use restriction to permit combined home-office use by doctors did not permit doctor to continue to maintain his office on the premises after moving away and renting the house; waiver was limited to use of office incidental to residence). Exit 1 Properties Ltd. Partnership v. Mobil Oil Corp., 692 N.E.2d 115 (Mass.Ct.App.1998) (restaurant owner not barred from relief on covenant limiting gas station to vending-machine food sales by laches where owner made it known that it would tolerate only some “overflow” of competition into its business but not a “flood”). Myers v. Salin, 431 N.E.2d 233 (Mass.Ct.App.1982) (laches is affirmative defense; proof that the delay worked some prejudice or disadvantage to the defendant is required to establish laches; 2-year delay between beginning of construction and filing of suit established laches as to construction of house where plaintiffs knew of construction and knew or should have known that defendants were making significant expenditures on the new house, but did not establish laches for claim to use of right of way to beach where expenditure for shrubbery that blocked way was not shown to have been so substantial or so early in time as to establish sufficient prejudice).

Mastandrea v. Baressi, 308 N.E.2d 573 (Mass.Ct.App.1974) (9-year delay in bringing suit for injunction against obstruction of common driveway did bar plaintiff by laches; defendants were aware of claim and did not establish prejudice from the delay). Harrod v. Rigelhaupt, 298 N.E.2d 872 (Mass.Ct.App.1973) (15-foot height limit enforced by requiring removal of addition to house that exceeded limit; neighbors objected as soon as it became obvious that second story was planned, and construction proceeded despite knowing of risks involved). Kling v. Taylor-Morley, Inc., 929 S.W.2d 816 (Mo.Ct.App.1996) (restrictions applicable to an entire area that redound to benefit of all property owners in the restricted area are waived or abandoned only when violations are so general as to indicate intention or purpose to abandon the plan or scheme intended to be maintained by the restrictions; consent to use of 1 parcel for 12-unit condominium of attached townhouses and another parcel for multi-unit apartment building in consideration for restriction of 6 acres closest to other restricted land for greenspace did not waive single-family residential restriction applicable to balance of property covered by plan; developer’s proposed office building with 189-space parking lot enjoined). Stolba v. Vesci, 909 S.W.2d 706 (Mo.Ct.App.1995) (lot owners had not waived right to enforce covenant requiring “private homes” against construction of condominium by failing to take action against barns, garages, and storage buildings that may violate covenants). Dierberg v. Wills, 700 S.W.2d 461 (Mo.Ct.App.1985) (conveyance of 1 tract to state highway commission under threat of eminent domain and release of residential structure restriction as to 1 parcel isolated from balance of tract by new highway did not waive restriction as to balance of tract). Massie v. Benton, 678 S.W.2d 445 (Mo.Ct.App.1984) (release of deed restriction as to Lot 4 did not waive rights to enforce residential restrictions on remaining lots). Ashelford v. Baltrusaitis, 600 S.W.2d 581 (Mo.Ct.App.1980) (long-continued practice of granting oral approval of building plans had waived requirement that approval be given in writing). Placke v. Haggerty, 562 S.W.2d 743 (Mo.Ct.App.1978) (prohibition of fences or walls waived as to fences by widespread long-term noncompliance in subdivision, but not as to walls where there was only 1 other retaining wall; enforcement of covenants may be denied only when noncompliance is so general as to indicate an intention to abandon them; the burden is on defendant to prove a radical change in conditions, that enforcement would cause undue hardship to defendant, and that enforcement would provide no benefit to plaintiff; otherwise the condition must be enforced even though plaintiff has proved no actual damage; a wall is different from a fence; fact that the 2 restrictions were expressed in a single sentence is legally immaterial; conditions to constitute waiver must exist separately as to each). Lake Saint Louis Community Ass’n v. Kamper, 503 S.W.2d 447 (Mo.Ct.App.1973) (failure to object to signs put up by builders during construction, furnishing of signs by community manager, and adoption by architectural-control committee of guidelines for such signs waived restriction against signs as to builders’ signs, but restriction on sale signs in excess of 5 square feet would be applied to builder signs). Greenberg v. Koslow, 475 S.W.2d 434 (Mo.Ct.App.1971) (fact that 1 subdivision resident has a home listing for his contracting business in the yellow pages does not establish waiver of prohibition on business use of property in subdivision; even if it violated the covenant, defendant did not prove that trustees or other residents knew of the use; waiver is intentional relinquishment of a known right; known rights may be waived by conscious acquiescence in their persistent violation). Mountain View Cemetery v. Granger, 175 Mont. 351, 574 P.2d 254 (1978) (cemetery not barred by laches from securing injunction against blocking prescriptive easement where it failed to respond to 1973 notice to quit using the road and filed suit when easement was blocked; easement owner had no duty to object to construction that did not block the road; harm to servient owner was caused by precipitous commencement of construction without first settling the question of the road). Egan v. Catholic Bishop of Lincoln, 363 N.W.2d 380 (Neb.1985) (lot owner who knew that new structure was under construction on adjacent property notwithstanding a pending lawsuit at the time he purchased his property waived any right to enforce any restriction that might have arisen through an implied-reciprocal servitude; a covenant violation is not like a nuisance, which may be enjoined even at the behest of one who purchased with notice; nuisances are essentially unlawful or wrongful, but restrictions on land use are disfavored). Nashua Garden Corp. v. Gordon, 386 A.2d 1278 (N.H.1978) (defendants’ agreement to settle earlier suit by waiving right to enforce the noncompetition covenant against addition of a bank to shopping center in exchange for a lease on another parcel did not waive their right to enforce the covenant against addition of a department store that was directly injurious to them). Carroll v. Schechter, 293 A.2d 324 (N.H.1972) (not error to refuse to order removal of 4-unit building from large lot subjected to single-family restrictions relocated after plaintiffs’ petition objecting to construction of 18-unit building caused loss of financing; application of restriction to lot was not necessarily clear; plaintiffs may have been aware of plans in January but took no action until May; hardship to builder and lender were sufficient grounds to deny equitable relief). Wilcox v. Timberon Protective Ass’n, 806 P.2d 1068 (N.M.Ct.App.1990) (delay does not constitute laches unless unreasonable and the delay prejudiced the defendants; defendant must show that plaintiff delayed after having notice of defendant’s conduct and opportunity to seek a remedy; that defendant lacked notice that plaintiff would assert the right in a suit; and that defendant will be injured if the lawsuit is not barred; plaintiffs took reasonable steps to put defendants on notice by reporting violations to architectural-control committee, which had duty to enforce covenants; plaintiffs immediately filed suit on learning that committee did not act; defendant’s good faith is irrelevant; the only good-faith defense that prevents

enforcement of covenants is lack of notice of the covenants; reliance on misrepresentations by sales persons, covenant summaries, the developer, or the architectural-control committee is not a defense to an action by other lot owners seeking enforcement of unambiguous covenants). Cohen v. Banks, 642 N.Y.S.2d 797 (Justice Ct.1996) (dominant-tenement owner of water-main easement is liable in damages to servient owner co-user of easement for failure to pay proportionate share of repair costs if servient owner notified defendant of the need for repairs, provided reasonable opportunity to participate in decisions, and used reasonable care to see that repairs were performed adequately and properly and at a reasonable price; servient owner lost right to damages by refusing access to defendant to make her own repairs to branch line servicing only dominant tenement rendering line unusable; servient owner’s remedy for dominant owner’s failure to contribute to repair costs for water main did not include self-help of denying entry to dominant owner to make repairs necessary to connect her branch line to the water main; appropriate remedy was suit for damages, or perhaps to enforce a forfeiture of the easement; plaintiff’s actions excuse defendant from contributing to common-line repair). Perry-Gething Foundation v. Stinson, 218 A.D.2d 791, 631 N.Y.S.2d 170 (1995) (action to enforce 1913 covenant against subdivision barred by laches where plaintiffs failed to file, despite obvious presence of ongoing construction, until defendants had substantially completed construction and incurred a great deal of expense). Westmoreland Ass’n, Inc. v. West Cutter Estates, Ltd., 174 A.D.2d 144, 579 N.Y.S.2d 413 (1992) (injunction against violation of subdivision setback restriction properly issued where court correctly found that equities balanced in favor of grant of injunction; defendants learned of setback prior to closing and proceeded despite protests of property-owners association, and there is no indication of good faith on defendants’ part or unclean hands on plaintiff’s). 487 Elmwood, Inc. v. Hassett, 486 N.Y.S.2d 113 (App.Div.1985), appeal after remand, 556 N.Y.S.2d 424 (1990) (plaintiff estopped from seeking injunction requiring removal of building from parking lot on which plaintiff had easement by failure to object until after 80% of the site work and 65% of the construction had been completed and by then objecting to landlord only rather than to tenant constructing building). Orange & Rockland Utilities, Inc. v. Philwold Estates, Inc., 52 N.Y.2d 253, 418 N.E.2d 1310 (1981) (whether laches applies depends on facts of each case; significant factor is whether plaintiff inexcusably delayed in asserting his right, while to his knowledge the opposing party has changed his position to his irreversible detriment). Gordon v. Incorporated Village of Lawrence, 84 A.D.2d 558, 443 N.Y.S.2d 415 (1981) (acquiescence in violation of restriction by construction of 2 tennis courts on adjacent property did not waive right to enforce covenant to prevent construction of parking lot; lot owners are entitled to ignore inoffensive violations without forfeiting right to restrain others they find offensive). Hawthorne v. Realty Syndicate, Inc., 300 N.C. 660, 268 S.E.2d 494, reh’g den., 301 N.C. 107, 273 S.E.2d 442 (1980) (acquiescence in construction of public library and waiver of enforcement rights to permit use of former residence as branch-bank office did not preclude lot owners from enforcing residential covenant against real-estate office on another lot; waiver agreement expressly retained the right to enforce the covenant against any other lots in the block, showing no intent to waive; acquiescence is not a general waiver unless the changes are so radical as practically to destroy the residential character of the neighborhood). Harris & Gurganus, Inc. v. Williams, 246 S.E.2d 791 (N.C.Ct.App.1978) (plaintiff not barred by delay of 3 years and 3 months from date of breach in filing suit to enforce covenant requiring reconveyance if construction not commenced within 2 years from date of delivery of deed; plaintiff had demanded that defendant comply and filed suit when defendant returned to U.S. from Tahiti; defendant failed to show that delay was unreasonable; lapse of time is not most important element in determining whether laches is available as a defense; question is whether delay results in an inequity based on some change in the condition or relations of the property and the parties; 10-year statute of limitations applies). Builders Supplies Co. of Goldsboro, N.C., Inc. v. Gainey, 192 S.E.2d 449 (N.C.1972) (right to lay out and stake off 35 acres of land conveyed for sand and gravel mineral estate lost by laches where president of company holding right told land owner that company intended to abandon right, land was staked off 6 years later by a successor, but no action taken to remove sand or gravel until 6 more years had passed, and landowner had in meantime removed most of the overburden that had made exploitation undesirable). Allen v. Minot Amusement Corp., 312 N.W.2d 698 (N.D.1981) (waiver of use restriction to permit operation of movie theater for 11 years did not waive right to enforce covenant against use of same premises for church; covenant retained value because church would not generate the same kind of traffic as theater on regular basis). Swaggerty v. Petersen, 572 P.2d 1309 (Or.1977) (plaintiffs entitled to injunction requiring defendant to remove 2 houses built in violation of density restriction; balancing hardships not appropriate because plaintiffs notified him of covenant violation and brought suit when there was only a foundation in place and there was no evidence that plaintiffs had notice of the application for approval of the resubdivision; defendant proceeded with construction after suit was filed; plaintiff is not required to seek preliminary injunction; defendant did not present evidence of cost of moving the houses; right to enforce one restrictive covenant is not lost by acquiescence in violation of another, different covenant). Kembel v. Schlegel, 478 A.2d 11 (Pa.Super.Ct.1984) (refusal to enjoin operation of transportation business was not abuse of discretion; restrictive-covenant claim barred by laches where violation had existed since at least the late 1960s and suit was not commenced until 1979; claim barred by laches where individual seeks to enjoin a violation of a restrictive covenant after

an unreasonable delay). Rieck v. Virginia Manor, 380 A.2d 375 (Pa.Super.Ct.1977) (failure to object to minor violations that do not change character of neighborhood or materially alter value of the restrictions does not waive right to enforce covenant preventing construction of more than one single-family dwelling per lot). Scott v. Owings, 223 Pa.Super. 481, 302 A.2d 423 (1973) (4 violations of 2-acre minimum-lot-size restriction did not prevent owners whose lots were greater than 2 acres and who were not aware of previous violations that occurred more than 15 years earlier from enforcing restriction against owner of 8-acre tract who sought to subdivide and build on lots of two-thirds of an acre). Janasik v. Fairway Oaks Villas Horizontal Property Regime, 415 S.E.2d 384 (S.C.1992) (waiver is voluntary and intentional abandonment or relinquishment of known right; party claiming waiver must show that other party possessed at the time actual or constructive knowledge of his rights or of all material facts on which they depended; waiver does not necessarily imply that the party asserting waiver has been misled to his prejudice or into an altered position; equitable estoppel, which can be enforced in law or equity, is the inhibition to assert a right by reason of the mischief following one’s own fault and may arise even though the party had no intention to relinquish or change any existing right; prejudice to the other party is an essential element of equitable estoppel; association not entitled to order for removal of all improvements to landscaping of front and rear areas of villa that were limited common elements where visible changes were made over a 3-to-4-year period, installation of railroad ties was discussed with association’s agent at least once before installation, and unit owners had spent over $10,000 on improvements). Garlington v. Boudreaux, 921 S.W.2d 550 (Tex.Ct.App.1996) (plaintiff entitled to injunction requiring removal of 8-foot-high fence running perpendicular to street in violation of covenants; fact that fence replaced earlier 6-foot-high fence in place when plaintiff purchased her property did not negate her right to enforce the covenant; fact that plaintiff’s windows violated covenant did not negate right to enforcement where defendant did not file countersuit requesting enforcement of covenant against her; plaintiff’s failure to object to violations elsewhere in subdivision that did not materially affect her is irrelevant; courts are reluctant to find waiver; distinction is drawn between rights of subdivider and individual owners; acquiescence by developer in violations anywhere on tract may deny equitable right to enforce, but individual owners are not required to take notice of violations that do not affect them). Hicks v. Loveless, 714 S.W.2d 30 (Tex.Ct.App.1986) (defendant has the burden to prove that the other existing violations are so great as to lead the average man reasonably to conclude that enforcement of the restrictions has been waived; factors to be considered are the number, nature, and severity of the existing violations; prior acts of enforcement of the restrictions; and whether it is still possible to realize to a substantial degree the benefits intended by the restrictions; operation of machine shop is different from and has greater negative impact than portable metal outbuildings, 4 abandoned vehicles parked at back of one lot, temporary dog pen, and large barn located on lot of one of original plaintiffs, and purpose of maintaining residential character can still be achieved by enforcement of restriction). Delaporte v. Preston Square, Inc., 680 S.W.2d 561 (Tex.Ct.App.1984), overruled on other grounds by Pitt v. Bradford Farms, 843 S.W.2d 705 (Tex.Ct.App.1992) (association did not waive right to object to additions made without approval of board of directors by failing to object to other additions that expert characterized as, at most, minor violations compared to those made by defendant; failure to object to trivial violations does not result in waiver of the restrictions). Sharpstown Civic Ass’n, Inc. v. Pickett, 679 S.W.2d 956 (Tex.1984) (to support a waiver, the proposed use must not be substantially different in its effect on the neighborhood from any prior violation; the prior violation carried on without objection will not support a waiver of a new and greater violation if it was insignificant or insubstantial when compared to the proposed or new use; plaintiffs entitled to injunction against proposed construction of car wash, shopping center, and used-car lot on 2 lots in residential subdivision; neighbors’ failure to object to prior use of one lot for offices in 1-story wooden building did not waive right to object to use with substantially greater impact on neighborhood). Foxwood Homeowners Ass’n v. Ricles, 673 S.W.2d 376 (Tx. Ct. App. 1984) (trial court properly denied injunction requiring reconversion of garage altered without approval of architectural-control committee and in violation of covenant requirement that each residence have a 2-car garage; association waited until 8 months after it became aware of construction before filing suit; covenants provided that if no suit to enjoin alterations was commenced prior to completion, approval was not required; association had failed to enforce covenant against prior similar violations; appearance of residence was in harmony with the subdivision; removal of alterations would cost $9,000). Stergios v. Forest Pl. Homeowners’ Ass’n, Inc., 651 S.W.2d 396 (Tex.Ct.App.1983) (association’s failure to enforce covenant requiring prior approval of building plans did not create unreasonable delay in enforcing specific covenant prohibiting composition roofs where plans were not submitted to association and association president informed defendant of violation immediately on seeing composition shingles on building site; there was no evidence that defendant relied on any action or inaction of association in deciding to use roofing material that violated the covenant; burden is on property owner to determine whether restrictions are still in force before deliberately disregarding them; waiver requires intentional relinquishment of a right or conduct inconsistent with asserting such a right; by failing to object to construction of house without prior approval of plans, association may have waived right to insist on prior approval, but did not waive right to object to use of composition shingles). Witmer v. McCarty, 566 S.W.2d 102 (Tex.Ct.Civ.App.1978) (plaintiffs, 30 lot owners in subdivision, entitled to injunction

requiring defendant to remove mobile home pursuant to covenants that no trailer, tent, shack, tin garage, barn workshops, or other buildings of like characteristics and no building with less than 1,200 square feet were permitted; fact that some residents parked recreational trailers, barbecue trailers, and boat trailers on their property and that there were some metal outbuildings and carports without objection did not constitute changed conditions or waiver; an owner is not precluded from enforcing a restriction whose violation materially affects him by failing to complain of another’s violation that does not; there was no evidence that other outbuildings were lived in or reduced property values; there was evidence that the mobile home would reduce values). Martin v. Moore, 562 S.W.2d 274 (Tex.Ct.Civ.App.1978) (indication of approval for building new fence and assisting in locating property line did not waive right to object to portion of the fence that extended beyond setback line in violation of covenant where protests were made immediately when it became apparent that the fence would be made of solid boards 6 feet high and would extend to the street; suit to require removal of fence commenced 2 months after construction of fence, was timely). Fowler v. Brown, 535 S.W.2d 46 (Tex.Ct.Civ.App.1976) (2 asserted violations of covenant prohibiting nonresidential use found trivial by trial court did not prevent enforcement of covenant against defendant’s plan to operate retail florist shop that would be 90% delivery and 10% walk-in; garage conversion at cost of $6,000 was made after notice that plaintiffs disapproved and intended to bring legal action). Garden Oaks Bd. of Trustees v. Gibbs, 489 S.W.2d 133 (Tex.Ct.Civ.App.1972) (violation of setback restriction by carports on 7 of 180 lots does not establish either waiver or abandonment of restriction; fact that defendant spent $1,200 on carport and violation is minor does not establish sufficient disproportion of benefit and burden to deny injunction based on balance of equities; failure of other lot owners to discover violation of setback and seek enforcement for 3 years after completion does not establish laches). Ortiz v. Jeter, 479 S.W.2d 752 (Tex.Ct.Civ.App.1972) (owner who failed to object to commercial uses on border lots existing at time owner purchased but later sued to enforce restrictions when purchaser of another lot sought to build drive-in grocery had not waived right to enforce residential restriction against conversion of another lot to commercial use; where prior violations do not materially affect owner’s use and enjoyment, failure to object does not bar later enforcement against different violation; owner was barred by laches from enforcing against previous commercial users, but was entitled to enforce restriction against new proposed commercial user). First State Bank of Corpus Christi v. James, 471 S.W.2d 868 (Tex.Ct.Civ.App.1971) (court may not refuse to enforce residential restriction on the sole ground that a change of condition has rendered the lot unsuitable for residential purposes; that equities favor particular owner is only one facet of the judicial inquiry; failure to object to operations of dental offices and real-estate offices out of homes is not a waiver of residential restrictions because uses are merely incidental to use as family residence; failure to complain of parking-lot operations conducted by appellant on other lots in violation of covenant did not constitute waiver of right to enjoin use of additional lot as parking lot; failure to object to violations that did not then materially affect enjoyment of premises did not waive right to sue for substantial violation of restrictions that would materially affect the premises). Russakoff v. Scruggs, 400 S.E.2d 529 (Va.1991) (lot owner who waited 4 years until suit by other lot owners was resolved favorably before suing to establish easement in subdivision lake sold for taxes not barred by laches; purchaser of lake knew that lot owners claimed easements; any expenditures made after prior suit filed were made at purchaser’s peril). Village Gate Homeowners Ass’n v. Hales, 246 S.E.2d 903 (Va.1978) (association entitled to order directing removal of front-yard wall of row townhouse; covenants prohibited front- or side-yard fences or walls except those constructed by developer; defendant’s wall built to correct a drainage problem was attractive, well-built, and harmonized with color and texture of townhouse, height 30 inches; several side-yard fences in addition to those built by developer had been built that violated the covenant, but association had taken position that harmonizing side-yard fences would be permitted; two other front-yard fences had been earlier removed at association’s request; party claiming waiver must show that previous violations had affected the architectural scheme and general landscaping so as to render enforcement of no substantial value; waiver as to side fences is not waiver of prohibition on front fences; developer’s plan did not include any front fences). Francis v. Rios, 350 F.Supp. 1130 (D.V.I.1972) (location of shacks on 27 lots in violation of $7,000 minimum-cost covenant and use of 3 lots for grocery and dry-goods stores in violation of residential-use covenant did not waive right of owners in 200-lot subdivision to object to use of lot for pool hall and bar where subdivision remained first and foremost a residential community; failure to stop slight deviations does not waive right to enforce covenants against flagrant violations; delay of 1 month after construction began in bringing suit is not laches even though building was completed in that time). Mountain Park Homeowners Ass’n v. Tydings, 864 P.2d 392 (Wash.Ct.App.1993) (covenant will not be enforced when it has been abandoned; covenant is abandoned if it is habitually and substantially violated and nothing is done in response; covenant is not abandoned when it has been violated only a few times; enforcement of one covenant is not affected by the violation of other covenants; in suit to enforce restriction against antennas, violations of other covenants such as storing disabled vehicles, campers, boats, and building materials are not relevant). White v. Wilhelm, 665 P.2d 407 (Wash.Ct.App.1983) (plaintiffs who had built without securing architectural-committee approval not entitled to enforce requirement against defendants; widespread building without approval created impression that it had been abandoned).

Sandy Point Imp. Co. v. Huber, 613 P.2d 160 (Wash.Ct.App.1980) (developer not estopped from enforcing residential-only covenant against homeowner’s construction of storage building on second lot adjacent to their house; existence of 2 other similar buildings in 1,000-lot subdivision, constructed without permission of development committee, did not establish habitual and substantial violations of covenants sufficient to create impression of abandonment; structures were smaller and were not authorized by plaintiff, and attempts were being made to force their removal during pendency of this litigation). St. Luke’s Evangelical Lutheran Church v. Hales, 13 Wash.App. 483, 534 P.2d 1379 (1975) (no laches where residents had opposed zoning changes before planning commission and had opposed release of restrictions as to 2 other lots in 1955 lawsuit). Morris v. Nease, 238 S.E.2d 844 (W.Va.1977) (neighbors’ failure to object to predecessor’s use of lot restricted to single-family residential use for 5-unit rental waived right to enforce against defendant’s use for chiropractic clinic that did not increase traffic or cause any additional disruption to neighborhood; defendant could legitimately have assumed that neighborhood acquiesced in use of the property for commercial purposes). Hartnett v. Jones, 629 P.2d 1357 (Wyo.1981) (claim for monetary relief in the amount of increase in value of property transferred in 1965 without giving notice to co-owner in violation of right of first refusal barred by laches; claimant learned of transfers in 1970 but did not file suit until 1976, when property had dramatically increased in value; claimant had refused to pay his share of development costs on which statute of limitations had run by 1976; there is inherent injustice in allowing claimant to an ownership right to await the propitious event and then to decide when the risk has passed to come in and claim a share of the profits). Note that this case could be decided under the rule of § 7.6, Modification or Extinguishment by Estoppel. Fairness of the transaction and servitude terms may be considered, Comment g. Castonguay v. Plourde, 699 A.2d 226 (Conn.Ct.App.1997) (injunction against continuing to build house under construction and from building any house that would unduly restrict view from plaintiffs’ lot was not abuse of discretion; plaintiffs not guilty of laches where action commenced when it became apparent that house under construction would obstruct their view; earlier visits to construction site did not apprise plaintiffs of the problem; injury to defendants was not disproportionate to injury to plaintiffs where plaintiffs had expended substantial sums on their house and defendants’ construction would permanently destroy the panoramic view; loss of view would be irreplaceable and could not be suitably compensated; plaintiffs not guilty of laches where they commenced litigation as soon as it became apparent that the house being constructed was going to obstruct their view; earlier visits to defendants’ lot did not give notice to plaintiffs who were not experienced in ascertaining layout of property). Saunders v. Thorn Woode Partnership, L.P., 462 S.E.2d 135 (Ga.1995) (developer violated architectural-approval covenant by building 41 units without submitting plans to association for approval that external design conformed with and was in harmony with 24 pre-existing townhomes; approval by 41-24 vote of unit owners after court ordered post-construction submission of plans entitled developer to grant of summary judgment; trial court did not abuse discretion in considering the conveniences of the parties and fashioning the least oppressive means of remedying the violation). Costs and benefits of enforcement may be considered, Comment h. Lange v. Scofield, 567 So.2d 1299 (Ala.1990) (covenant requiring consent of all property owners adjoining or across the street for construction of second house on subdivided lot would not be enforced where the only owner who refused consent lived in England, had left her residence unoccupied and in a state of disrepair for 10 years, and had no view of the proposed residence from her property, where proposed residence was consistent in style, size, and value with the rest of the neighborhood and would enhance value of defendant’s property, and where issuance of injunction would substantially harm plaintiff without substantially benefiting defendant; increase in density would be minimal). Oceanside Community Ass’n v. Oceanside Land Co., 195 Cal.Rptr. 14 (Cal.Ct.App.1983) (mandatory injunction requiring maintenance of golf course properly refused where course had been closed for several years, was badly deteriorated, current owner had paid only $30,000, and cost of restoration would exceed $200,000; homeowners’ interests could be partially protected by imposition of lien accruing at $10 per residence per month and foreclosable unless land was in process of restoration or was maintained as golf course). O’Connell v. Larkin, 472 A.2d 26 (Conn.App.Ct.1984) (injunction to prevent servient owner from interfering with construction to restore right of way after city made public street inaccessible by lowering grade properly denied; proposed blasting of permanent trench 3 to 5 feet deep and 20 feet wide across land would create damage to servient owner greatly disproportionate to injury to dominant owner where there was other access to dominant estate, inability to use easement was not fault of servient owner, and evidence as to exact location and boundaries of right of way conflicted). Matter of Wildflower Landholding Assoc. Ltd., 49 B.R. 246 (Bankr.M.D.Fla.1985) (court unable to award damages for breach of covenant to provide free 1-year golf-course memberships and sewer tap-ins to developer of mobile-home park for each lot sold where developer was unable to make definitive showing of number of lots that would be sold in the future; evidence too speculative). Monell v. Golfview Road Ass’n, 359 So.2d 2 (Fla.Dist.Ct.App.1978) (balancing of conveniences doctrine not applicable in action to require removal of speed bumps that interfered with plaintiff’s easement; interference was substantial, willful, and intentional, and plaintiff did not delay in protesting; fact that action benefited other common owners of easement who did not need to use road for access to their properties was irrelevant). General American Realty Co. v. Greene, 107 Ill.App.3d 1011, 438 N.E.2d 540 (1982) (court may order removal of

encroaching building in accord with express easement terms without regard to relative hardship where encroachment was deliberate; dominant owner not required to prove substantial injury from the encroachment). Wier v. Isenberg, 420 N.E.2d 790 (Ill.Ct.App.1981) (while a change in the character of surrounding property might preclude injunctive relief, a court does not balance the equities as it would in an ordinary nuisance case or in a request for rezoning; restrictive covenants are in a different class and, unless against public policy or the principles of waiver or estoppel apply, their violation will generally be enjoined; injunction against maintaining small professional practice in violation of residential-only covenant upheld despite evidence that there was no adverse impact on neighborhood). United Properties, Inc. v. Walsmith, 312 N.W.2d 66 (Iowa Ct.App.1981) (pecuniary loss not sufficient basis to deny injunction requiring removal of fence built without architectural approval; purpose of covenants is to protect value and desirability of the many lots in the development; injunction requiring removal of unauthorized fence is only effective remedy; defendants knew of restrictions and knew there was opposition to construction of fence; damage to plaintiff developer and intervenor lot owners is real and substantial, but incapable of valuation; money cannot cure the damage to the desirability of the community in which intervenors live). Holmquist v. D-V, Inc., 563 P.2d 1112 (Kan.Ct.App.1977) (relative hardship does not ordinarily preclude enforcement of restrictions against party who purchased with notice of the covenant if some benefit will result to the party seeking enforcement; defendant purchased lots knowing they were restricted to single-family dwelling use; relative hardship not ordinarily used in denying enforcement to restrictive covenants unless party seeking enforcement has engaged in inequitable conduct). Liu v. Dunnigan, 333 A.2d 338 (Md.Ct.Spec.App.1975) (substantial interests of neighbors in preserving the residential integrity of their community is not outweighed by interests of doctor in maintaining office in his home where, of total $15,000 spent on office, $9,000 was spent after he learned of neighbors’ objections; failure to object to maintenance of dental practice in one home in subdivision did not waive right to object to maintenance of medical practice in another home, because development was sufficiently large that it did not indicate intent to abandon the restrictions; waiver as to some does not waive as to others absent abandonment or grounds for estoppel or laches as to the particular violation complained of). Blakeley v. Gorin, 313 N.E.2d 903 (Mass.1974) (“... in the past this court has upheld mandatory injunctions calling for the destruction and removal of substantial permanent structures built in violation of such a restriction [16-foot passageway at rear of lots to be kept open].... We have done so over the strong objection that ‘it would operate oppressively and inequitably, and impose on the defendant a loss disproportionate to the good it can accomplish....’ ... But [Mass. Gen. Laws ch. 184, § 30], was designed to change the law in this field and make certain equitable considerations between the parties, as well as a consideration of the public interest, grounds to relegate the beneficiary of such a restriction to money damages.” Award of damages instead of injunction for construction of 12-story bridge above 16-foot passageway required to be kept open by restrictions is proper under statute because, due to change in character of neighborhood from single-family residences to moderately high-rise apartments, proposed bridge will have only a modest impact on available light and air; public controls have been imposed since restriction was created that tend to preempt the restriction; continued enforcement would tend to impede reasonable use of the land for purposes for which it is most suitable; free-standing tower not feasible because of small size of parcel; proposal is for combined hotel on lower 12 stories that is part of Ritz Carlton and apartments above; enforcement would not be in the public interest; magnitude of harm to Ritz would far exceed that to the neighbors; land has been vacant for over a decade; multimillion dollar project; both balance of equities between the parties and consideration of the public interest require that respondents accept money damages; replacement of horse-drawn vehicles by the automobile and public land-use controls has rendered restriction against stables obsolete; garage is not a stable). Redfern Lawns Civic Ass’n v. Currie Pontiac Co., 44 N.W.2d 8 (Mich.1950) (even though the 9 lots bordering Grand River Avenue in 98-lot subdivision had not been developed after 33 years and are zoned for limited commercial use, covenants restricting them to residential use are enforceable; public policy does not require defendant lot owner be permitted to use them for car dealership even if there is little unrestricted business property available in the area; defendant’s business is not so closely related to needs of community as to require special consideration, and scarcity of desirable business sites does not give rise to equities superior to plaintiffs’ rights under the covenants to live in a strictly residential district). Wilcox v. Timberon Protective Ass’n, 806 P.2d 1068 (N.M.Ct.App.1990) (trial court abused discretion in denying injunction to enforce covenant prohibiting mobile homes; to allow individual lots within area subject to covenants to be relieved of the burden would destroy the right of other owners to rely on the covenants, a right traditionally upheld by property law; damages are not adequate remedy because value of loss of quiet enjoyment is incalculable). Gaskin v. Harris, 481 P.2d 698 (N.M.1971) (injunction requiring removal of pagoda-style pool enclosure not in harmony with old Santa Fe adobe style properly issued where there was no evidence of changed conditions and relative harm to defendant was far outweighed by benefits to the community). Zimmerman v. Seven Corners Dev., Inc., 654 N.Y.S.2d 523 (App.Div.1997) (injunction against violation of residential-only restriction properly denied and restriction terminated under RPAPL 1951(1) where 1986 amendment to zoning ordinance permitted commercial development and prohibited residential construction on the burdened property; trial court erred in summarily dismissing alternative request for damages; persons seeking to enforce restriction are entitled to “such damages, if any” they will suffer from extinguishment). Vossen v. Forrester, 963 P.2d 157 (Or.1998) (injunction requiring removal of 3-foot encroachment into 16-foot easement

denied on condition that servient owner provide alternate route for easement; balance of equities favored denial because easement location was not visible, servient owner did not know actual location, and removal of encroachment would require destruction of house; 9-month delay in filing suit, during which substantial construction took place, did not establish laches where servient owner did not establish that dominant owner misled him or knew that he was unaware of easement’s location). Drulard v. LeTourneau, 593 P.2d 1118 (Or.1979) (house that was more than one story above street level, but less than 24 feet above midline, violated restriction against structure of more than one story above level of street or exceeding 24 feet above midpoint of lot’s front line; injunction requiring removal of second story not appropriate because it interfered with plaintiff’s view less than 24-foot-high structure would have done, plaintiff did not object until house was framed, and defendant built in good-faith belief it did not violate covenant; damages not appropriate because plaintiff failed to prove house as constructed reduced value of plaintiff’s house more than 24-foot-high house would have done). Woodland Trails North Com. Imp. Ass’n v. Grider, 656 S.W.2d 919 (Tex.Ct.App.1983) (injunction requiring removal of alteration that did not violate covenants for failure to secure approval of architectural-control committee properly denied; trial court was required to balance equities between homeowner and association and properly weighed the harm defendant would suffer if relief were granted against benefits to be derived by association; $1,500 cost to defendant outweighed benefit of punishing owner who failed to seek prior approval). New Jerusalem Baptist Church, Inc. v. City of Houston, 598 S.W.2d 666 (Tex.Ct.Civ.App.1980) (hardship to church in moving to different site did not outweigh city’s interest in enforcing covenant restricting use to single-family dwellings; there was no evidence that church’s lots could not be sold to raise funds for another site; building constructed off-site and transported to restricted lots could be as easily transported elsewhere; disproportion of “considerable magnitude” is required to refuse enforcement of covenant by injunction; to establish affirmative defense of waiver in deed-restriction case, one must prove that then-existing violations are so great as to lead the mind of the average man to reasonably conclude that the restriction has been abandoned; number, nature, and severity of then-existing violations, prior acts of enforcement of the restriction, and whether it is still possible to realize to a substantial degree the benefits intended through the covenant are factors to be considered by the average man; existence of 4 nonconforming uses in 169-lot subdivision, including 2 beauty shops, conflicting evidence as to use of 1 lot as a salvage business, and 1 church, and evidence of 1 instance of recent enforcement of the covenant provide sufficient evidence to justify trial court’s conclusion that average man would reasonably conclude that restriction had not been abandoned or enforcement waived; suit not barred by laches where suit was begun less than 1 month after church was moved to site; small sign placed on lots 4 years earlier indicating it was future home of the church that had become faded and overgrown was not sufficient to give notice of defendant’s intentions, and local civic club informed church that it would oppose violation of restriction before church expended funds to move building to the site). Gunnels v. North Woodland Hills Community Association, 563 S.W.2d 334 (Tex.Ct.Civ.App.1978) (lot owner properly ordered to remove antenna pending trial; disproportion between harm flowing from grant of injunctive relief and benefit to be gained thereby must be of considerable magnitude to justify refusal to enforce restrictive covenants; equities balanced must include those favoring lot owners who acquired properties in reliance on the restrictions). Crimmins v. Simonds, 636 P.2d 478 (Utah 1981) (balance of hardships did not favor landowner who opened in-home beauty parlor in violation of covenants; only damage to violator would be relocation of business or liquidation of $7,000 investment; even if equities favored violator, remedy would be damages, not simply denial of injunction). Hollis v. Garwall, Inc., 945 P.2d 717 (Wash.Ct.App.1997) (trial court did not abuse discretion by issuing injunction against further mining operations; evidence of serious financial hardship to defendant not relevant; defendant who proceeds after receiving warning that the activity violates restrictive covenant is not entitled to benefit of balancing the relative hardships). Brown v. Voss, 715 P.2d 514 (Wash.1986) (trial court did not abuse discretion in denying injunction against use of easement to serve house to be built straddling dominant and adjacent nondominant parcels where injury to owner of dominant estate would be substantial, there would be no damage to servient estate, owner of servient estate sat by for more than 1 year while dominant owner spent more than $11,000 on house project, and servient owner only sought injunction as effort to gain leverage against dominant owner, and court limited use of easement to serving one single-family dwelling).

STATUTORY NOTE


California: Cal. Civ. Code § 880.030, Nothing in marketable title act applicable to abandoned easements, powers of termination, and unexpired options limits application of the principles of waiver and estoppel, laches and other equitable principles. Massachusetts: Mass. Gen. Laws Ann. ch. 184 § 23A, statute of limitations for action to recover damages or compel removal, alteration, or relocation of any structure by reason of any violation of any private restriction or condition in the nature of a restriction in regard to (a) building set-back requirements (b) size, type, number of dwelling units, or number of stories (c) the addition of any porch, garage, sign, bay window, or similar addition, or the location of construction of any driveway, fence, or wall, or (d) the materials used or the expenditures made for construction is six years from the date of completion of the building, addition, or other construction.

Massachusetts: Mass. Gen. Laws Ann. ch. 184 § 26, unless the creating instrument provides otherwise, restrictions imposed as part of a common scheme are presumed to be enforceable for the benefit of any land only when such land either (a) is bounded by a street by which the subject parcel is bounded or (b) lies in a block surrounded by the same streets as the subject parcel or (c) is contiguous to said block except for streets or ways. Massachusetts: Mass. Gen. Laws Ann. ch. 184, § 30 provides that no restriction shall be enforced or declared to be enforceable unless it is determined that the restriction is, at the time of the proceeding, of actual and substantial benefit to a person claiming rights of enforcement. There shall be a presumption that no restriction is of actual or substantial benefit, except in cases of gifts or devises for public, charitable, or religious purposes, for land located in a city of more than 100,000 population unless (1) at the time it was imposed, the restriction was not more burdensome as to requirements for lot size, density, building height, set back or other yard dimensions than such requirements established by the restrictions applicable to the land of the persons for whose benefit rights of enforcement are claimed; or (2) the restriction is part of a common scheme applicable to four or more contiguous parcels (except for intervening streets) to land of the grantor or other premises purported to be benefited thereby; or (3) unless such restriction is in favor of contiguous land of the grantor. Minnesota: Minn. Stat. Ann. § 500.20(1). When any covenants, conditions, restrictions or extensions thereof annexed to a grant, devise, or conveyance of land are, or shall become, merely nominal, and of no actual and substantial benefit to the party or parties to whom or in whose favor they are to be performed, they may be wholly disregarded; and a failure to perform the same shall in no case operate as a basis of forfeiture of the land subject thereto. New York: N.Y. Real Prop. Law § 1951. 1. No restriction on the use of land created at any time by covenant, promise or negative easement ... shall be enforced by injunction or judgment compelling a conveyance of the land burdened by the restriction or an interest therein, nor shall such restriction be declared or determined to be enforceable, if at the time the enforceability of the restriction is brought into question, it appears that the restriction is of no actual and substantial benefit to the persons seeking its enforcement or seeking a declaration or determination of its enforceability, either because the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment, or for any other reason. 2. * * * if the court shall find that the restriction is of no actual benefit ... it may adjudge that the restriction is not enforceable by injunction or ... that it shall be completely extinguished upon payment to the person or persons who would otherwise be entitled to enforce it in the event of a breach at the time of the action, of such damages, if any as such person or persons will sustain from the extinguishment of the restriction.

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