Real Estate Law Newsletter – A Survey of Colorado: Easement Law-Part II

by David L. Masters

This article originally appeared in The Colorado Lawyer, June 1993; reproduced here with permission.

This article, which is the second in a two-part series on the law of easements in Colorado, describes the scope of use and the termination of easements. Part I appeared in the May 1993 issue of The Colorado Lawyer. It described types of easements, especially in terms of their origin of right.

In particular, easements by way of necessity and easements by preexisting use both arise by implication of the intent of a prior common owner of the dominant and servient estates. Nonetheless, easements by preexisting use are the more resilient of the two types, as this Part II demonstrates.

Scope of Use

The rights of an easement holder are first defined by the nature and purpose of the easement.(1) That is, the range of permissible uses of an easement will be affected by the means through which the easement was created.(2) Therefore, the scope of use allowed within the easement varies, depending on whether the easement was created by (1) implied grant or reservation, (2) express grant or reservation or (3) prescription. This distinction in permissible uses may require litigants to choose to assert only one type of easement right when the facts would support more than a single theory.

Implied Grants

Ways of Necessity

The scope of an easement by necessity should embrace all uses required or necessary for the complete and beneficial utilization of the land to which the easement is appurtenant.(3) While such a general rule may be drawn from the case law of other jurisdictions, it must be drawn in Colorado by extrapolation from the stated purpose of implied easements by way of necessity.

Colorado courts have held that easements by implication rest on an implied grant and that every grant carries with it, by implication, whatever is necessary to the enjoyment of the thing granted.(4) From this follows the conclusion that the grant of easement that is necessary for the use of the thing conveyed must be broad enough in its scope to allow such uses as will permit full enjoyment of the dominant estate.

Easements by Preexisting Use

As with easements by way of necessity, easements by preexisting use are, in part, based on the implied intention of the grantor who severed unity of title. However, unlike easements by way of necessity, the implication here is not as broad as that required or necessary for the complete and beneficial use of the land to which the easement is attached. Because an easement arising from a preexisting use presumes that the grantor intended that use to be permanent, the best argument is that the scope and use of the easement should be limited to the use that gave rise to the easement in the first instance.

Easements by Express Grant or Reservation

Easements created by an express grant or reservation may be used for the purposes and to the extent specified in the grant. Of course, when the scope of use is clear, legal questions and lawsuits rarely arise. It is those cases where the grant is vague or ambiguous which present questions of scope.

Colorado courts have held that when the writing that expressly grants or reserves an easement does not limit the use to be made of the easement, it may be used for any purpose to which the dominant estate may then, or in the future, reasonably be devoted.(5) This rule is subject to the qualification that no use of the easement or right of way may be made if it imposes an additional burden on the servient estate that is different from the use that was established at the time the easement was created. Presumably, uses that differ from those established at the time when the easement was created, but which do not impose an additional burden on the servient estate, are permissible.

In Wright v. Horse Creek Ranches(6) the Colorado Supreme Court gave passing approval to the rules found in the Restatement of Property (“Restatement’) for determining permissible uses under easements created by express grant or reservation.(7) These rules suggest that if the conveyance does not adequately or accurately fix the extent of the easement, the court must look at (1) the context in which the easement was granted or reserved, (2) what uses of the servient estate were in fact made both before and after the conveyance and (3) what a normal development of the dominant estate would require in the way of an easement.(8)(c) the use made of the servient tenement before the conveyance, (d) the use made of the servient tenement after the conveyance. 484. In ascertaining, in the case of an easement appurtenant created by conveyance, whether additional or different uses of the servient tenement required by changes in the character of the use of the dominant tenement are permitted, the interpreter is warranted in assuming that the parties to the conveyance contemplated a normal development of the use of the dominant tenement.

Easements by Prescription

Colorado has expressly adopted the standards articulated in Restatement §§ 478 and 479 for assessing the permissible uses of easements created or acquired through prescriptive use.(9) Restatement § 478 provides for evaluating the claimed use in comparison to the originating use in relation to “(a) their physical character, N their purpose, (c) the relative burden caused by them upon the servient tenement.”

Such a rule would be inflexible if it did not allow for some change in behavior and circumstances between the fractions that made out prescriptive use and all subsequent permissible uses. This is precisely one of the issues before the court in Wright.7b resolve it, the court adopted § 479 of the Restatement. With respect to changes or expansion of subsequent uses, § 479 provides for considering in addition to the factors enumerated in section 478, the needs which result from a normal evolution in the use of the dominant tenement and the extent to which the satisfaction of those needs increases the burden on the servient tenement.

Thus, when courts decree easements on the basis of prescriptive use, the initial scope of the easement is fixed by the use through which it was created. Thereafter, the determination of whether a particular use is permissible will be made by applying the balancing test laid out in § 479, which by necessity requires consideration of the factors listed in § 478.

Reliance on such a balancing test, while laudably fair and equitable, does little for allowing a prediction of what the law, in fact, permits. When balancing the changing needs in use of the dominant estate against the relative burden that may be imposed on the servient estate, the opportunity to predict an outcome is diminished.

Private Condemnation of Easements

The scope of permissible uses of an easement obtained through exercise of the private right of condemnation logically should be limited to the uses for which it was sought and obtained. To do otherwise would impose additional burdens on the servient estate-perhaps amounting to an additional taking of private property for private use-without the payment of additional compensation.

Conversely, this issue can be viewed from the perspective that the private right of condemnation is only available when necessity exists. Then, perhaps, the scope of permissible uses should be measured by the same standard as implied easements for ways of necessity: that which is required or necessary for the complete and beneficial use of the land to which the easement is appurtenant.

Still another alternative for determining the scope of privately condemned easements would be to view this type of easement as arising from an express grant, the grantor being the court. From this perspective, the rules found in Restatement §§ 482 through 486 would apply. Indeed, they lend themselves to making such determinations.

Colorado appellate courts have not yet issued a reported decision on this subject, but could be expected to look to the laws and decisions of Missouri for guidance. In Crystal Park Co. v. Morton, the Colorado Supreme Court recognized and confirmed that the provisions of the state constitution allowing for the condemnation of private ways of necessity have direct lineage to the constitutional provisions of Missouri.(10)Crystal Park, supra, note 4 at 81. The connection is so immediate that the court declared that the construction given to the Missouri constitutional provisions by the courts of that state would be “persuasive, if not controlling” in Colorado.

The Missouri courts have held that proceedings under their constitution and statutory scheme to acquire a private way over the lands of another “are in invitum, against the common. law and against the common rights, and must be strictly construed.”(11) The claimants must clearly establish the way to be acquired and the underlying necessity. Once a private way or road has been established, determination of the issues pertaining to the scope of use are largely controlled by statutes. This leaves to the courts the task of balancing the hardship and injury to the owner of the servient estate against the necessity of increasing the scope of use or size of the easement to the owner of the dominant estate.(12)

Easements by Estoppel

The scope of permissible uses under an easement by estoppel-as with easements acquired through private condemnation proceedings-has not been the subject of a published opinion by Colorado appellate courts. Logic suggests that this type of easement be limited in scope to the use for which the easement was created and for the same considerations that impose such limits on easements acquired through prescriptive use. Easements by estoppel may be decreed by the court when one party (the owner of the dominant tenement) reasonably relies on and detrimentally changes his or her position based on the false representation or concealment of material facts by the owner of the servient estate. The actions comprising the change of position, such as construction of roads or other improvements, should logically impose the limit on the scope of uses permissible under this type of easement.(13)

Termination of Easements

All easements, regardless of the mechanism of creation, may be terminated in the following circumstances. First, the holder of the easement (the fee owner of the dominant estate) may surrender the easement in writing by conveyance to the fee owner of the servient estate.

When the owner of the dominant estate also becomes the owner of the servient estate, the easement will cease to exist by merger of the two estates.(14) Easements are interests in property conferring a right on the holder to use the property of another for a specific purpose.(15)

This definition presupposes two tracts of land in separate ownerships-a dominant and a servient tenement. If the two tracts come into common ownership, they cannot, consistent with the definitional constraints, continue to be dominant and servient. The right to use the property consisting of the former servient estate, which had existed by virtue of the easement, would now exist by virtue of fee ownership of such property. Accordingly, once the dominant and servient es’ tates come into common ownership, easements appurtenant to what had been the dominant estate cease to exist.

All types of easements, other than those created by express grant or reservation, may be abandoned. Abandonment, which may be difficult to establish, requires proof of affirmative acts manifesting an intention on the part of the owner of the dominant estate to abandon, the easement(16) No matter how long continued, mere nonuse of an easement acquired by an express grant or reservation will not constitute abandonment.(17)

In addition to the foregoing general rules, implied easements by way of necessity terminate on the cessation of the necessity which gave rise to the easement.(18) Interestingly, implied easements by preexisting use, which also depend for their existence on the element of necessity, do not terminate on cessation of the necessity. This would seem to follow from the rule that to establish such easements, the courts look to the necessity at the time of severance of unity of title and not at the necessity existing at the time of the hearing.(19) Colorado appellate courts have not addressed the termination of easements created by prescription, private condemnation or estoppel, and the decisions from other jurisdictions are not sufficient to state a general or majority rule.

Conclusion

Colorado courts have recognized that easements may arise through various means and that, depending on the means of creation, the extent and perhaps the life of the easement will vary. Given the frequency with which these courts have addressed the subject of easements, continuing developments and refinements in this area of the law may be expected.


NOTES

1. Bijou Irr. Dist. v. Empire Club, 804 R2d 175 (Colo. 1991).

2. Wright v. Horse Creek Ranches, 697 P.2d 384 (Colo. 1985).

3. See generally 25 Am.Jur.2d, Easements and Licenses § 83 (1966).

4. Crystal Park Co. v. Morton, 27 Colo. App. 74, 146 R 566 (1915).

5. Westland Nursing Home, Inc. v. Benson, 517 R2d 862 (Colo.App. 1974). The court specifically adopted the rule as stated in Cushmann Virginia Corp. v. Barnes, 129 S.E.2d 633 (Va. 1963).

6. Supra, note 2.

7. The Wright court used a comparison between Restatement of Property (hereinafter, “Restatement’) §§ 477-481 and §§ 484-486 to illustrate the difference between the rules for determining the permissible use of easements created by prescription and those created by express grant (or reservation), respectively Supra, note 2 at 388. The parties to the conveyance contemplated a normal development of the use of the dominant tenement.

8. See especially Restatement §§ 482-484. Those rules provide: 482. The extent of an easement created by a conveyance is fixed by the conveyance. 483. In ascertaining the extent of an easement created by conveyance, the following are important factors:

(a) the circumstances under which the conveyance was made,

(b) the fact that the conveyance was or was not gratuitous,

(c) the use made of the servient tenement before the conveyance, (d) the use made of the servient tenement after the conveyance. 484. In ascertaining, in the case of an easement appurtenant created by conveyance, whether additional or different uses of the servient tenement required by changes in the character of the use of the dominant tenement are permitted, the interpreter is warranted in assuming that the parties to the conveyance contemplated a normal development of the use of the dominant tenement.

9. Wright, supra, note 2, approving the adoption of these standards by the Court of Appeals in Westland, supra, note 5.

10. In the Crystal Park case, the court observed that when official report of the proceedings of the covenant that framed the Constitution of Colorado furnishes abundant and conclusive proof that sections 20 and 21 of article 2 of the Constitution of Missouri were copied verbatim into the drafts to be considered by the Colorado convention, and that, after full consideration, those sections changed only in mode of expression, and so as to avoid duplication of provisions, and by addition of the word “reservoir’ and the words “mining, milling, domestic,’ became and are sections 14 and 15 of article 2 of our Constitution. Crystal Park, supra, note 4 at 81.

11. Welch v. Shipman, 2 10 S.W2d 1008 (Mo. 1948).

12. See, e.g., Reid v. Jones, 594 S.W2d 339 (Mo.App. 1980) and Lewis v. Hilkerbaumer, 599 S.W2d 7 (Mo.App. 1980).

13. Note that easements by estoppel are not addressed within the chapters pertaining to “Creation,” “Extent’ or ‘Extinguishment” of the Restatement. Whether easements by estoppel will receive any treatment in the Restatement of Property, Second, remains to be seen.

14. Restatement § 497 (1944).

15. See, e.g., DeReus v. Peck, 162 P.2d 404 (Colo. 1945).

16. Qjovig v. Spino, 701 P.2d 1267 (Colo. App. 1985); Westland, supra, note 5.

17. Westland, supra, note 5.

18. This rule has not been announced by a Colorado court but has found general acceptance in other jurisdictions. See 25 Am.Jur. 2d, Easements and Licenses § 106 (1966).

19. Proper v. Greager, 827 P.2d 591 (Colo. App. 1992).