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Blanket Easements

A Blanket Easement Defined.  Sometimes an easement grant recites a right to use the land for a limited purpose, but does not designate the bounds or footprint to be employed for that purpose.  This is called a “blanket form” easement.[1]  We often see the blanket form used for utility easements (e.g., electrical power lines, cable, natural gas pipelines, oil or fuel pipelines).

A Blanket Easement Is Limited to Reasonable Use.  Although its form suggests that the easement holder can put its power lines, cable or pipelines anywhere on the owner’s land,[2] a blanket form easement does not grant the entire servient lot to the easement holder.  It only conveys a right of reasonable use.

So, for example, a blanket easement might not allow the easement holder to use the only ground available for the landowner to build a house or other valuable development, if there is other available space the easement holder can reasonably use.  The issue of what is reasonable involves a balancing of interests.  Suffice it to say that the blanket form does not give the easement holder unlimited discretion when initially deciding what part of the landowner’s lot to use.

A Blanket Easement Is Limited To Its Initial Footprint.  Once such an easement is employed, it is defined by what the cases often call “practical location” or “user”.[3]  In short, once an initial footprint is laid for the easement holder’s use, that route across another’s land, or that use on another’s land, is limited to the initial footprint.  This is a general rule and not unique to Alaska.

The Montana Supreme Court put it this way:

If the easement is not specifically defined, it need only be such as is reasonably necessary and convenient for the purpose for which it was created.  … [W]here the grant or reservation of an easement is general in its terms, … an exercise of the right with the acquiescence and consent of both parties, in a particular course or manner, fixes the right and limits it to that particular course or manner.[4]

Similarly, the California Supreme Court summarized the law, citing other states, as follows:

The rule is well settled that where a grant of an easement is general as to the extent of the burden to be imposed on the servient tenement, an exercise of the right, with the acquiescence and consent of both parties, in a particular course or manner, fixes the rights and limits it to the particular course or manner in which it has been enjoyed.  …  In Jennison v. Walker, 11 Gray (Mass.) 423, the court said:

Where an easement in land is granted in general terms, without giving definite location and description to it, so that the part of the land over which the right is to be exercised cannot be definitely ascertained, the grantee does not thereby acquire a right to use the servient estate without limitation as to the place or mode in which the easement is to be enjoyed.  When the right granted has been once exercised in a fixed and defined course, with the full acquiescence and consent of both parties, it cannot be changed at the pleasure of the grantee.[5]

This case involved the location and course of an aqueduct.  The same principle has been applied to the construction of a dam (Orphan Home v. Buffalo Hydraulic Association, 64 N.Y. 561); and to the location of a right of way Wynkoop v. Burger, 12 Johns 222, Bannon v. Angier, 2 Allen (Mass.) 128; O’Brien v. Goodrich, 177 Mass. 32, 58 N.E. 151; Garraty v. Duffy, 7 R.I. 476.

The foregoing cases are individual statements of the principle stated in Restatement (3rd) of Property § 4.8, Location, Relocation, and Dimensions of a Servitude, comment c:

1. 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. … [T]he location is fixed by the placement of the improvements ….

The rule is so universal that it should be presumed to apply in Alaska.

A Blanket Easement May Not Be Enlarged, Unless That Intent Is Expressed In The Grant.   While some courts vary, it can safely be said that the easement holder should not assume that its initial footprint may be expanded to accommodate increased use, unless the granting document opens the door to that interpretation.  Some examples of that general rule are as follows:

The California Supreme Court put it this way:

[T]he grant is indefinite as to the number of pipes.  The city, having elected to lay one, is bound by this election.  …  It by no means follows … that the grantors, in conveying a right of way for water pipes over their land intended to burden that land with an easement the extent of which could never be definitely ascertainable, and which might be enlarged again and again, as often as the growth of the City of Vallejo might make it necessary to extend that operation of the water plant.[6]

Decisions from other states are to the same effect.[7]  The rule was well-stated by the Georgia Court of Appeals:

Having thus established the location of the line or system which was intended to be permitted by the easement, the plaintiff was thereafter precluded, after the lapse of a substantial period of time from the erection of the original line or system to enter upon the defendant’s lands and take additional portions thereof for the erection of an extension or extensions of the line or system without first obtaining from the defendants a further or additional easement ….  Martin v. Seaboard Air-Line Ry. Co., 139 Ga. 807 (1a), 77 S.E. 1060.  To construe the original easement in any other manner would be to authorize the plaintiff to eventually take all the defendants’ land if the necessities of their business dictated, without requiring the payment of any additional damages or compensation to the defendants no matter how great defendants’ losses might be as a result thereof.  This was clearly not the intention of the parties to the instrument. Certainly the defendants did not intend to convey to the plaintiff blanket authority to take any and all their land whenever it might suit the convenience or necessity of the plaintiff, without requiring the plaintiff to pay such damages as might accrue as a result of such taking.[8]

There is an exception to this rule when the grantor of the easement states an intent to allow changes for future expansion to accommodate changing needs or technologies.  The court will then decide what is reasonable, if the parties don’t agree.

Once Constructed, The Blanket Easement Holder May Not Move Its Location Without The Landowner’s Consent.  The easement holder may not move the initial footprint to some other location without the landowner’s agreement.  This is a logical corollary to the principles set forth in the preceding section.

The general and majority rule is that neither party to an easement (neither dominant estate nor servient estate) can move the easement once it is established by initial selection.[9]  This is so even if the easement holder agrees not to expand the use.

The minority rule would allow only the servient estate owner to make changes in the location or dimensions of an easement, subject to conditions avoiding prejudice to the easement holder.  This variation has been adopted by some states further to the policy favoring the full economic development of the servient estate.  Neither majority nor minority rule would permit the easement holders to relocate the easement without the landowner’s agreement.

The law is constantly changing, and it may apply differently in differing factual settings.  Accordingly, these summaries are not to be construed as legal advice, and readers should not rely upon this information as a substitute for direct consultation with your attorney.  For further discussion of these and related issues, as applied to particular factual settings, please contact JAMES B. WRIGHT & ASSOCIATES, P.C., 500 L Street, Suite 101, Anchorage, Alaska  99501.  Telephone: (907) 277-6175; E-mail: [email protected]; Facsimile: (907) 277-6181.

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[1] See, e.g., Gerstein v. Axtell, 960 P.2d 599, 600 fn. 2 (Alaska 1998) (blanket form electric utility easement).

[2] The land subject to the easement is called the “servient estate” or the “servient lot.”

[3] See, e.g., Ruddy-Lamarca v. Dalton Gardens Irrigation District, 291 P.3d 437 (Idaho 2012), and cases cited therein.

[4] Stahan v. Bush, 773 P.2d 718, 720 (Mont. 1989).  See also Leffingwell Ranch, Inc. v. Cieri, 916 P.2d 751, 757 (Mont. 1996); Guthrie v. Hardy, 28 P.3d 467 (Mont. 2001); and Anderson v. Stokes, 163 P.3d 1273, 1285 (Mont. 2007).

[5] In Jennison, the Massachusetts Supreme Court restated the rule as follows:

[W]here the terms of a grant are general or indefinite, so that its construction is uncertain and ambiguous, the acts of the parties, contemporaneous with the grant, giving a practical construction to it, shall be deemed to be a just exposition of the intent of the parties.

Jennison v. Walker, 11 Gray 423, 77 Mass. 423 (1958).  The rule was re-affirmed in Bannon v. Angier, 2 Allen 128, 84 Mass. 128 (1961).  See M.P.M. Builders, LLC v. Dwyer, 809 N.E.2d 1053, 1056 (Mass. 2004).

[6] Winslow v. City of Vallejo, 148 Cal. 723, 84 P. 191, 192 (1906).

[7] See, e.g., Orphan Home v. Buffalo Hydraulic Association, 64 N.Y. 561 (1876); Wynkoop v. Burger, 12 Johns 222 (N.Y. 1815); O’Brien v. Goodrich, 177 Mass. 32, 58 N.E. 151 (1900); Garraty v. Duffy, 7 R.I. 476 (1863).

[8] Jackson Electric Membership Corp. v. Echols, 66 S.E.2d 770, 772 (Ga.App. 1951).

[9] See Alligood v. Lasaracina, 999 A.2d 836, 838-839 (Conn.App. 2010), for a summary of the majority and minority versions of the rule against relocating easements, with citations to cases.  Washington Metropolitan Area Transit Authority v. Georgetown University, 347 F.3d 941, 946 (D.C.App 2003), is to the same effect, and further notes that “reasonable use of an easement does not entitle it to use more of the servient tenement’s land by relocating the right-of-way.”  Id. at 950.

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