Landowner could not limit access of easement holder to one specific route

by Victoria Heldt

Enbridge Energy, LP v. Donovan Dyrdal, et al.
(Minnesota Court of Appeals, October 24, 2011)

The Dyrdals own agricultural property that is subject to easements held by Enbridge Energy.  The easements were granted in 2009 by the power of eminent domain and allowed Enbridge “rights of ingress and egress as are reasonably necessary or convenient in the exercise of such easement rights.”  Enbridge, a public-service corporation, installed and maintained pipelines in the easement.  Soon after completing the pipeline installation, Enbridge discovered problems at two locations, so the crew began working to correct them in January of 2010.  They used a field road on the Dyrdal property to access the two spots.  In response, the Dyrdals placed large hay bales across the field road and in the ditch between the problem sites, preventing Enbridge from accessing their work site.  Enbridge claimed this delay cost them an additional $28,697.80 in project costs.

Enbridge sought a declaratory judgment and injunctive relief in district court alleging a breach of easements and a violation of the eminent-domain order, among other things.  They also moved for a temporary injunctive relief to prevent the incident from reoccurring during litigation, which the court granted.  The Dyrdals countered with a claim of immunity under Minnesota’s statute preventing strategic litigation against public participation (SLAPP).  The statute’s goal is to prevent parties from using the threat of costly litigation to silence those who want to debate public issues.  The district court eventually granted Enbridge’s motion for summary judgment on the issue of declaratory relief, finding Enbridge did indeed have the right to access the property to maintain the pipelines.

The Dyrdals appealed, their first claim being that the district court erred when it denied their request for partial summary judgment on the grounds of Minnesota’s anti-SLAPP statutes.  The anti-SLAPP statute can be used to dismiss claims that relate to public participation.  The Court noted that public participation is defined as “speech or lawful conduct that is genuinely aimed in whole or in part at procuring favorable government action.”  The Dyrdals argued that, since Enbridge gained access to the property by means of an eminent-domain procedure, it was acting as a government agent in its actions.  Consequently, they claimed that the anti-SLAPP statue was applicable.  The Court disagreed.  They noted that the power of eminent domain does not make the entity a government agent once the power has been exercised.  In addition, they found that Enbridge was exercising its rights as an easement owner, not a government agent, in accessing the property.  Further, the Dyrdals previously claimed that they placed the hay bales on the road in order to load them and not to interfere with Enbridge’s work.  If that is true, then their conduct was not to “procure favorable actions from Enbridge,” but for their own private farming operations.  As a final note, the Court noted that it had recently found that a preexisting legal relationship could limit a party’s ability to file an anti-SLAPP claim.

The Dyrdals also alleged that the district court abused its discretion when it granted temporary injunctive relief.  In evaluating whether a temporary injunction is appropriate, the Court considers five factors:  1) the nature and background of the relationship between the parties; 2) the balance of harm to the parties; 3) the likelihood that the party seeking the injunction will prevail on the merits of the action; 4) wither there are public-policy considerations; and 5) whether there are any administrative burdens involved in judicial supervision and enforcement of the temporary injunction.  After analysis, the Court found that the first three factors favored Enbridge, while the last two were neutral.

The Dyrdals focused mainly on the third factor.  The Court had reasoned that the language in the eminent-domain ruling showed Enbridge had a clear right to access the property and that constituted a showing that they would most likely win on the merits of the case.  The Dyrdals claimed that the real-estate doctrine of practical location limited Enbridge’s right of entry to one specific route.  The boundary by practical location can be established by acquiescence if one party chooses a specific route and the other agrees accepts it over a period of time.  The Dyrdals contend that an alternative route (and not the field road) that was previously used had been established by acquiescence.  The Court noted the plurality in the phrase “rights of ingress or egress” that appeared in the eminent-domain ruling.  It found that the ruling did not prescribe one specific route of access, so the Dyrdal’s claim was insufficient to disprove the likelihood of Enbridge’s success in a claim.  Additionally, the practical location by acquiescence doctrine requires acquiescence over a period of time.  In this case, the easement was relatively new and substantial time had not passed in which to establish a route by acquiescence.  The Court affirmed the district court’s decision regarding the temporary injunction.

Use of roadway by mobile home park residents went beyond scope of easement

by Gary Taylor

113th Avenue Road Fund Assn. v. I & R Properties, Inc.
(Iowa Court of Appeals, November 9, 2011)

Plaintiff 113th Avenue Road Fund Association (the association) is a voluntary, unincorporated group of lot owners in a subdivision called BJ Mahoney‟s Second Subdivision in Scott County. Plaintiff Sandra K. Moore is the former association president and owns Lot 1 in the subdivision.The defendant, I & R Properties, Inc. (I & R), owns lots 13, 14, and 15 in the subdivision and operates a trailer park—the Lake Canyada Mobile Home Park—“partially on, and adjacent to, the subdivision.” (although I & R denied owning the lots and affirmatively stated that Lake Canyada L.L.C. is the record title holder of the property. The district court observed, “the legal relationship between I & R Properties and Lake Canyada is not clear. . . . [but] I & R Properties is at least the resident manager and authorized agent of Lake Canyada L.L.C.”).

I & R and Lake Canyada use residential buildings on lots 13 and 14, located on 113th Avenue, as an office for the mobile home park and as a residence for the park‟s manager. Several mobile home residents use 113th Avenue as their ingress and egress to their mobile homes. In addition, I & R cut a roadway through lot 15, which connects with 113th Avenue. The crude roadway provides the occupants of approximately 235 trailer lots with a shortcut to 113th Avenue so that they may access Lake Canyada’s business office.  The sixty-six-foot-wide roadway was first recorded in a 1948 plat of the B.J. Mahoney‟s Second Subdivision, and the Mahoneys recorded an affidavit in 1964 reaffirming their dedication of the roadway for the use of “all of the owners of lots” in the 1948 plat. On June 30, 1986, the owners of the land adjoining the road signed an agreement for continued maintenance and access to and from their properties. That agreement stated that 113th Avenue is designated “as a private road for residential use for all owners and residents of the Lots in said Auditor’s Plat of B.J. Mahoney’s Subdivision and B.J. Mahoney’s 2nd Subdivision. The owners of the following adjoining lots to the described road state that each party has the right to use the described road for residential use to Ingress and Regress.” In 1986, Dean Harding managed Hawkeye Real Estate Investments and signed the agreement for Lots 13, 14, and 15.  Over the years, several disagreements arose between trailer park management and subdivision landowners concerning the meaning of the agreement, and the use and maintenance of 113th Avenue.  The latest disagreement resulted in this lawsuit over the interpretation of the agreement.  The district court ruled that I & R could not use lots 13, 14, and 15 for commercial purposes, and that the association could erect blockades to prevent trailer park residents from using 113th Avenue.  I & R appealed.

The parties agreed that the district court went beyond the scope of pleadings in restricting the use of lots 13, 14, and 15.  However, they still disagreed about the scope of the 1986 agreement concerning use of the road.  I & R recognizes the 1986 agreement referenced “residential use” of the road, but argued that phrase “cannot fairly be construed to ban traffic related to the operation of the park as a place where persons reside. The Court of Appeals disagreed.  The testimony about 113th Avenue reveals that the lots adjoining the private road were held and used by about twenty people for their own residences in 1986, as opposed to any commercial or business endeavors. The notion that more than two-hundred occupants of mobile homes may use I & R’s easement to transact business at the manager’s office and to gain a quicker connection to a public road was not contemplated by the lot owners who signed the 1986 agreement for access and maintenance of the private road.  The agreement did not contemplate that I & R could open the private road to hundreds of customers who rented trailer lots from the company. That commercial use of the road by non-residents has created an unintended burden on common holders of the easement.  The agreement’s reference to proportional responsibility for the maintenance costs also supports the conclusion that the signatories did not anticipate opening 113th Avenue to non-residents who would benefit from their use of the private road without contributing to its upkeep.

The Court of Appeals found that I & R violated the 1986 agreement by allowing the different type of use of 113th Avenue by their tenants. It affirmed the district court’s declaration that I & R’s roadway on Lot 15 should be closed to through traffic to 113th Avenue, the north end of 113th Avenue should be closed to access from the mobile home park, and I & R should be prohibited from interfering with the association’s enforcement of the agreement.

Court interprets easement to allow access at location of grantee’s choosing

by Melanie Thwing and Gary Taylor

Binns v. Stewart
(Iowa Court of Appeals, August 25, 2010)

Don and Brenda Stewart own lot 19 and Mark and Grace Binns own lot 20 in Hidden River Heights Subdivision Part III in Cedar County, Iowa.  The lots are located in a cul-de-sac that is subject to restrictive covenants. On the Stewart’s lot (19) runs a private blacktop driveway that provides access to the subdivision’s well. The Stewarts acquired their land from Wilton Motors, Inc and the deed included two easements. One gave Hidden River Heights Homeowners Association (HOA) an easement of ingress and egress over the private drive of lot 19, up to #1 Well and required the HOA to maintain that portion of the driveway.  The HOA thus built a blacktop service road across the property subject to this easement.  The service road was approximately 10 feet from the boundary between lots 19 and 20  The second easement – the subject of the litigation – states that owners and successors to Lot 20 will share access to that same access road.

Prior to acquiring lot 19 the Stewarts offered an addendum to the warranty deed that stated Lot 20 will share access to the driveway. The owners of lot 20 then built an access driveway directly from the property line, across the 10-foot strip to the blacktop access road. 

When the Binns purchased lot 20 they wanted to change the angle of the access driveway. The Stewarts argued against this arguing that the easement only allowed the owners of Lot 20 to travel from the cul-de-sac to the driveway, to the well, without access to lot 20.  Binns filed a declaratory judgment motion in district court for the use of the easement.

In district court the Stewarts argued that the easement was ambiguous and therefore unenforceable. Looking to the addendum that was offered by them prior to purchasing, the court held that the addendum granted the owners of Lot 20 the right “to access the road from any portion of their lot across the road from any portion of their lot across the 10-ft. space between the Lot 19 boundary and the blacktop road.”

The Stewarts had also argued that the easement was in contravention of the restrictive covenants. The district court dismisses this, stating that the Stewarts had allowed to easement in their deed and therefore did not have the right to complain that it is in violation. In all totality, the court concluded that the owners of Lot 20 have direct access to the service road that leads from the cul-de-sac to the well and serves as the driveway for lot 19, and that the owners of Lot 19 could not create any obstruction that would block this. It allowed the owners of Lot 20 to build a road from the boundary of Lot 20 to the service road.

The Stewarts appeal to the Iowa Court of Appeals, first arguing the easement was not ambiguous and that the easement should be enforced as written, without consideration of the offer to purchase. This easement was created by grant, and in Iowa the grantor’s intent is controlling and applied by general contract principles. The Stewarts’ interpretation of the easement is unreasonable, because the language in the easement has a clear intent to an easement over the 10-ft. in question. The Stewarts’ interpretation would render the easement completely useless to the owners of lot 20.  The only reasonable reading can come from allowing Lot 20 to share access to the drive as well as the land between the two lots necessary to access the driveway.

Finally, the Stewarts argue that the district court had effectively expanded the easement because their ruling does not limit where the owners of Lot 20 can access the driveway on Lot 19’s property. The Binns argue that the easement simply does not limit the area under the easement as the blacktop portion of the easement way, but that they also have the right to build an access to the blacktop at any point along the way. The Binns argued they were not seeking an expansion of the easement, they were merely asking the court to define their right so they could continue with the construction of their driveway. The court could not find any reason to disagree with this. The district court was correct in their ruling.

Insufficient evidence to show easement essential to beneficial enjoyment of property

by Gary Taylor

Gibson v. Hatfield
(Iowa Court of Appeals, December 22, 2010)

The Gibsons and Hatfields own adjoining parcels of land that were once in single ownership.  A steep, wooded bluff runs along the middle of Gibson’s property, and for several years Gibson used a gravel road running across the Hatfield’s property to access the rear portion of her parcel.  Hatfield  purchased his parcel in 2007.  Nothing in the title search, or in representations made by the realtor indicated to Hatfield that Gibson held a recorded easement to use the gravel road, nor that circumstances suggested the existence of an easement by implication. Nevertheless, Hatfield testified that both before and after Gibson filed suit against him, he made written and verbal offers to the Gibsons to let them use the road if they would make a reasonable effort to call him first, and that in the event they could not reach him or it was an emergency, they would have access to a key in a lockbox.

Gibson filed a declaratory action for an easement by implication.  Gibson testified that she and her husband used the gravel road once per week, on average, for the last 31 years, and that the land was inaccessible by vehicle without the use of the gravel road.

The Court of Appeals found insufficient evidence to establish that the prior owners of the adjoining parcel had ever agreed to provide an easement for access of the rear lot. Likewise, the Court found that Gibson did not meet the four-prong test required for establishing an easement by implication. To obtain an easement by implication the benefitting landowner must show (1) separation of title; (2) that the use was obvious and intended to be permanent; (3) that the use is continuous rather than temporary; and (4) that the easement is essential to the beneficial enjoyment of the land.  The Court observed that item (4) is the primary consideration in establishing an easement by implication.  The Court found that automobile access was not “essential to the Gibsons’ beneficial enjoyment of the land.”  Nothing prohibited Gibson from removing trees on her own property to create a lane for automobile access to the rear portion of the parcel.

Iowa C.A. adjudicates easement rights of Mississippi River frontage owners

by Gary Taylor

Clancy v. Jessen
(Iowa Court of Appeals, October 7, 2009)

Landowner may grant easement rights beyond prior deed restrictions so long as they do not impair existing rights of other easement holders.

In 1964 the Kelloggs acquired 2.07 acres of property north of the city of McGregor that included 198 feet of riverfront along the Mississippi River.  The property was bisected by railroad tracks.  Three years later they subdivided the property into 17 lots.  Lot 17 had the entire 198 feet of riverfront, but the Kelloggs platted drives so that the other 16 lots were given vehicular access to the riverfront via Lot 17.  The 10 lots west of the railroad tracks were sold over the years – purchasers coming to be known as West Enders – with the following language granting the easement:

“Grantors convey easement to use platted drives, and to travel access and use over and across Lot 17 of Kellogg’s Subdivision, to Mississippi River, and use of riverfront adjacent thereto.”

The 6 lots east of the tracks were sold – purchasers coming to be known as East Enders – with the same language, and also included the following notation:

“Grantors further agree that no buildings of any type shall be allowed on said Lot 17.  Permission granted to grantees to install 3 docks for 3 boats on said Lot 17.” 

Eventually 3 docks were built with room for multiple boats.  Historically, both East Enders and West Enders docked boats at those docks. 

The Kelloggs sold Lot 17 in 1986.  In 2007 several lot owners proposed several new dock plans to the Army Corps of Engineers, who must review and approve such plans on the Mississippi River for navigability.  The Corps approved a plan that provided for one large community dock in the middle of Lot 17 that would accomodate the boats of all West Enders, and two smaller new docks.  The plan left two of the existing docks in place. 

Two East Enders brought suit to stop development of the new dock plan, arguing that only the  deeds of the East Enders granted permission for boat docks, and that the West Enders’ deeds granted no such rights.  The Court of Appeals disagreed.  The East Enders’ claims must fail, reasoned the court, if the docking priviledges granted to the West Enders do not impair the East Enders’ easements rights.  The owner of Lot 17 may elect to confer on the West Enders more benefits than they are entitled to, but that is not concern of the East Enders unless their rights are adversely affected.  The granting of rights to East Enders to install “3 docks for three boats” did not give them rights to have their docks in a particular location on Lot 17.

Iowa Supreme Ct. examines scope of access easement

by Allison Arends

Stew-Mc Development v. Fischer
(Iowa Supreme Court, August 14, 2009).

Proposed use of farm access lane for access to residential subdivision would exceed original scope of easement.

In 1888, Anton Birkel purchased land in Dubuque County, which was eventually passed down to Ferdinand Birkel. During Ferdinand’s ownership, his mother, Rosa, lived on a separate farm on the northern part of his property. Ferdinand allowed Rosa and other relatives to travel across his land in order to access public roads and other parts of the property. After Rosa sold her property and it was divided into two lots, Ferdinand continued to allow the new owners of Rosa’s property to travel across his land. This “access way” was later named Kress Lane. In 1983, Ferdinand Birkel’s land was sold to Nancy and Thomas Fischer, who continued to allow the owners of the northern properties to use Kress Lane for access purposes. Prior to this case, the owners of the two northern lots were James Kress and Joseph and Penni Schmitt. Although Kress Lane is vital to the survival of these farms, Dubuque County never formally accepted it as a public road, although over the years the county has rocked and graded it, and given it a name for 911 emergency addressing purposes.  The Birkel-Fischer chain of ownership has never established a written legal instrument granting a formal easement across the Fischer party for Kress Lane.

In February 2002, Stew-Mc Development, Inc. made an offer to purchase the two-hundred acre Kress estate in hopes that the Dubuque County Board of Supervisors would approve an application to rezone the property to permit single-family residential development. At the Dubuque County Planning Zoning Commission where Kress’ application was considered, Nancy Fischer objected, stating that Kress Lane was only an access easement over her property, and the northern landowners had no real ownership. As a result, the application was denied on the grounds that the Kress property had insufficient public access.

Kress and Stew-Mc filed for a declaratory judgment claiming that Kress Lane was a county road, thereby providing sufficient public access necessary for residential development. The district court granted summary judgment in favor of the Fischers. The court determined that Kress lane was a private road based on “an easement and was not a public roadway, either by direct acquisition, formal dedication and acceptance, implied dedication or prescriptive easement.” The court also determined that despite the “scope” of the easement, it was not “broad enough to cover the proposed residential development. “

The court applied law of easements in which they found they must look at the original scope and use of the easement, which was granted to the two farm properties at a time when residential development was not contemplated. The court also decided that if the scope of the easement was not defined, the easement is limited to what is “reasonably necessary and convenient for the purposes for which it was created.” The court also noted that the development of the residential area would not only increase the use of the easement, but it would change the nature of the easement constituting an extra burden upon the dominant estate.





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