From time to time I’m called on to help resolve disputes about easements, whether utility easements (e.g., pipelines or power lines), right of way or access easements (e.g., roads or trails through the land of another), or other classes of easements (e.g., drainfields). Often, there are questions or disputes about what was intended when the easement was granted. There may be questions about the scope or duration of an easement. Is it temporary or permanent? Or conditioned on some circumstance or event? Was its beneficial use limited to the person receiving the grant, or the family of that person, or does it run with the land for the benefit of whomever may later own that land? What about increased use, volume, or traffic? What is the size or footprint of the area subject to the easement? Who is liable for its maintenance and repair? All these questions and more arise when we deal with easements.
As a starting point for prospective clients, here are a few general principles governing easements. Note that these are general principles, which may vary in application depending on particular circumstances.
Easements Defined. The policy of American law favors an owner’s free use of his or her land, to enjoy it and develop within the bounds of the law. One limitation on that right involves easements. An easement is a non-possessory right to use the owner’s land for a limited purpose. To identify easements on your land, look to your deed, which will typically recite easements. The deed will likely identify your land by reference to a plat, as of a subdivision. The subdivision will typically depict certain easements. Inspect the land. If you see signs that there is underground pipe or cable, or overhead wires, these are typically placed pursuant to an easement. If you see a trail or road across the land, leading beyond it, then this, too, may indicate an easement, established by contract or by use. For present purposes I’ll focus on easements expressly granted as opposed to easements established by use.
Easements Interpreted. The grant of an easement is typically in writing, and recorded, like a deed. “The touchstone of deed interpretation is the intent of the parties and where possible the intentions of the parties will be given effect.” If the language of the document is ambiguous, the court considers extrinsic evidence of the surrounding facts and circumstances. If this does not clear up the ambiguity, the court then looks at rules of construction.
Rights and Duties of Parties to an Easement. The holder of an easement may use the owner’s land only as reasonably necessary to fulfill the purpose of the easement. The easement holder may not exceed reasonable use, and may not cause unreasonable damage to the owner’s land.
For example, if electrical utility lines are strung above-ground on your property, the electrical utility will want to cut away trees or branches that might interfere with their electrical wires. It is arguable that the electrical utility may only cut that which is reasonably necessary for the protection of its wires within the easement boundary, and not cut outside the boundary of the easement even if a tree there might pose a threat to its wires. The landowner’s permission may be required. May the electrical utility leave the downed trees and brush on the ground? It may be unsightly, or obstruct travel on the land, or prevent the landowner’s chosen use of his or her property. It may pose a fire hazard in Alaska’s dry summer conditions of late.
Exceeding the bounds of an easement (boundaries or permissible uses) constitutes a trespass against the rights of the landowner. A landowner is often entitled to declaratory relief from the court, deciding the bounds and permissible uses of the easement, an injunction against exceeding the bounds of the easement, and damages for trespass. In trespass actions, the measure of damages is normally the loss in value of the land or the cost of its restoration. The easement holder is also entitled to seek declaratory relief in his or her favor, and an injunction against the landowner, prohibiting interference with appropriate use of the easement, and sometimes damages for interference with the easement.
The easement holder has a duty to the landowner to repair and maintain the portions of the owner’s land used, and to make improvements to the extent necessary to prevent unreasonable interference with the owner’s enjoyment of his land. The landowner has no duty to the easement holder to repair or maintain his land or the easement holders’ improvements. The land owner has the right to make any use of his land that does not unreasonably interfere with the easement as granted. This is consistent with the general rule in America that favors an owner’s free use of his or her land, to enjoy it and to develop it within the bounds of the law.
For further discussion, 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.
 See, e.g., Mattson v. Montana Power Co., 215 P.3d 675, 691 (Mont. 2009):
It is a nonpossessory interest in land – a right which one person has to make limited use of another’s property for a particular purpose; it is neither a grant of title to the property nor a possessory interest.
 This isn’t always so. For example, an easement can be acquired by historical use rather than by a written grant. That is the case with easement by prescription or via RS2477. Establishing an easement by historical use requires clear and convincing evidence of use rather than interpretation of a written grant.
 HP Ltd. Partnership v. Kenai River Airpark, LLC, 270 P.2d 719, 727 (Alaska 2012), quoting Estate of Smith v. Spinelli, 216 P.3d 524, 529 (Alaska 2010).
 Id. If the circumstances resolve the ambiguity, the intent of the parties is enforced. If, on the other hand, a document is not ambiguous, but expresses a mutual mistake, it may be reformed as appropriate. See Nichols v. City of Evansdale, 687 N.W.2d 562, 570-572 (Iowa 2004).
 Restatement (3rd) of Property § 4.10, Use Rights Conferred by a Servitude.
 See, e.g., Grygiel v. Monches Fish & Game Club, Inc., 787 N.W.2d 6, 18-19 (Wisc. 2010), and cases cited therein.
 Id., at 19; Winslow v. City of Vallejo, 84 P. 191, 193 (Cal. 1906). Such an injunction is typically an order telling the easement holder not to do certain acts. If the easement holder defies the court’s injunction(s), the court has discretion in extreme cases to extinguish or nullify the easement.
 Ostrem v. Alyeska Pipeline Service Co., 648 P.2d 986, 990 (Alaska 1982).
 Restatement (3rd) of Property § 4.13, Duties of Repair and Maintenance, subsection (1).
 Id., at subsection (2); Anderson v. Stokes, 163 P.3d 1273, 1287 (Mont. 2007). The easement holder has not only the right but the duty to keep the easement in repair, and the owner of the land is under no duty to maintain or repair the easement in the absence of an agreement. There, the easement holder argued that the landholder should not have removed topsoil from his property. The court disagreed, noting that the landholder had no duty to maintain his land for the benefit of the easement holder.
 Restatement (3rd) of Property, § 4.9 Servient Owner’s Right to Use Estate Burdened by a Servitude.