Latham v. Garner

673 P.2d 1048, 105 Idaho 854, 1983 Ida. LEXIS 564

• Court: Idaho Supreme Court
• Decided: December 28, 1983
• Docket: 13435
• Status: Published

Opinions

BAKES, Justice.

Plaintiff appellant appeals from a lower court decision that a roadway easement over plaintiff’s servient estate belonged exclusively to the defendant respondents, enjoining plaintiff from either using the road or interfering with the defendants’ use.

The uncontroverted facts before the lower court were that the defendant respondents have owned certain real property located in Kootenai County, Idaho, since 1962. Until 1968, defendants’ only access to their property was through privately owned adjoining land, on an inconvenient and sometimes impassable road. On March 29, 1968, defendants purchased right-of-way easements from Madeline Leischner and Earl Lucas for purposes of a proposed roadway between defendants’ property and the county road. The defendants paid $500 to Leischner and $40 to Lucas for the easements and incurred legal expenses in preparing the easement documents.

The documents were essentially identical: they were entitled “easement”; they described the roads in detail, containing words of grant; and, they specifically provided that the easements and rights-of-way granted to the defendants were “exclusively for their use, and unto their successors and assigns forever.” The location of the easements is undisputed.

Defendants began and substantially completed construction of the road during summer and fall of 1968, at their own expense. Upon completion of the road they erected a chain barrier and posted a sign on the road designating the road as private, to be used by permission only. Defendants at all times maintained the road and kept it in a travelable condition.

Plaintiff, in 1973, purchased the property formerly owned by Madeline Leischner through which the longest portion of the aforementioned easements runs. The trial court found that around the time of purchase, plaintiff and defendant Harold Garner conversed about the easement. At this time, Harold Garner advised plaintiff that an agreement for joint use of the road could be reached if plaintiff would reimburse him for part of the construction cost and share in maintenance costs. Alternatively, Garner offered to dedicate the road to the county if plaintiff brought it up to county specifications. Plaintiff refused both offers and took the position that he was entitled to use the road without contribution. In 1977, plaintiff acquired the property owned by Earl Lucas over which the balance of defendants’ easement ran. Thus, when this action commenced plaintiff owned both servient estates; for ease of reference, the two easements will be referred to as one.

Testimony before the trial court indicated that plaintiff, among others, used the road, but upon detection by defendant, was ordered to stop such use. Plaintiff and defendant resorted to blows over the disputed right to use the road when plaintiff attempted to remove a chain across the road with his pickup truck in June, 1977. Plaintiff filed this Action to Quiet Title on October 20, 1977.

The trial court determined that the easement was granted for the exclusive use and benefit of the defendants and enjoined plaintiff “from interfering in any manner with the exclusive use of the road by the ... Defendants .... ” From this judgment in favor of defendants, plaintiff appeals.

The primary question to be decided on appeal is whether the trial court was correct in concluding that the instruments granting the easement to defendants conveyed an easement solely for defendants’ use, to the exclusion of the owner of the servient estate, the plaintiff herein. To reach that decision, we must first determine whether an easement which excludes use by the owner of the servient estate is an interest recognized by law. We are cited to no Idaho cases directly on point, nor do we find any.

We begin with the observation that an exclusive easement is an unusual interest in land; it has been said to amount to almost a conveyance of the fee. Mitchell v. Land, 355 P.2d 682, 685 (Alaska 1960); City of Pasadena v. California-Michigan Land & Water Co., 17 Cal.2d 576, 110 P.2d 983, 985 (1941); Keeler v. Haky, 160 Cal.App.2d 471, 325 P.2d 648, 651 (1958); 2 Thompson, Real Property § 426 (1980).¹ The grant of an exclusive easement conveys unfettered rights to the owner of the easement to use that easement for purposes specified in the grant to the exclusion of all others. Because an exclusive grant in effect strips the servient estate owner of the right to use his land for certain purposes, thus limiting his fee, exclusive easements are not generally favored by the courts. See Hoffman v. Capitol Cablevision System, Inc., 52 A.D.2d 313, 383 N.Y.S.2d 674, 676 (1976). Nevertheless, if parties agree to do so, exclusive easements can be created. In M.G.J. Corp. v. City of Houston, 544 S.W.2d 171 (Tex.Civ.App.1976), the court was faced with the question whether the plaintiff’s easement in a parking lot excluded use by successors of the grantors, the defendants. The deed in question in M.G.J. Corp. provided that the tract “shall be set aside [and] used exclusively by the grantee herein .... ” The Texas appellate court held that plaintiffs owned an exclusive easement and that they were entitled to the free and undisturbed use of their property for the purposes of the easement to the exclusion of the owner of the fee.

The Supreme Judicial Court of Massachusetts was faced with a similar question in Butler v. Haley Greystone Corp., 352 Mass. 252, 224 N.E.2d 683 (1967). In Butler, a subdivider granted beach easements for the benefit of a certain group of lots. When the subdivider attempted to grant easements in favor of another section of lots, the first lotholders sought to quiet title in themselves. The court held that the intention of the parties sufficiently showed that the original beach easement was to exist exclusively in the first lot owners and that the grantor reserved no right to grant easements in favor of any other parcels.

Finally, in Hoffman v. Capitol Cablevision System, Inc., 52 A.D.2d 313, 383 N.Y. S.2d 674 (1976), defendant easement holders attempted to apportion their easement in gross. Defendants owned an easement to construct and maintain power poles and wires for the distribution of electricity and messages. The court determined that the very nature of the easements indicated that they were intended to be exclusive vis-a-vis the grantor. Id. 383 N.Y.S.2d at 676. The court affirmed the easement owner’s exclusive right to distribute electricity and messages across the servient estate and allowed defendants to apportion their right.

These cases illustrate that exclusive easements are recognized servitudes on land which may be created when the parties so intend. Many other cases acknowledge the possibility that an easement may exclude use by the servient estateholder, but have construed the easements involved to be nonexclusive in nature. See, e.g., Mitchell v. Land, 355 P.2d 682 (Alaska 1960); City of Pasadena v. California-Michigan Land & Water Co., 17 Cal.2d 576, 110 P.2d 983 (1941); Holbrook v. Telesio, 225 Cal.App.2d 152, 37 Cal.Rptr. 153 (1964); Barnard v. Gaumer, 146 Colo. 409, 361 P.2d 778 (1961); Wiggins v. Lykes Bros., Inc., 97 So.2d 273 (Fla.1957); Folk v. Meyerhardt Lodge No. 314 F. & A.M., 218 Ga. 248, 127 S.E.2d 298 (1962); Lindhorst v. Wright, 616 P.2d 450 (Okl.App.1980). The reason most often cited for finding a particular easement nonexclusive is that the granting instrument does not clearly and specifically provide for exclusivity in the dominant estate.² E.g., Holbrook v. Telesio, supra; Mitchell v. Land, supra. “No intention to convey such a complete interest can be imputed to the owner of the servient tenement in the absence of a clear indication of such an intention.” City of Pasadena v. California-Michigan Land & Water Co., supra 110 P.2d at 985, citing Reiver v. Voshell, 18 Del.Ch. 260, 158 A. 366 (1932).

Our cases are clear that the legal effect of an unambiguous written document must be decided by the trial court as a question of law. See J.R. Simplot Co. v. Chambers, 82 Idaho 104, 350 P.2d 211 (1960); Ohms v. Church of the Nazarene, 64 Idaho 262, 130 P.2d 679 (1942). If, however, the instrument of conveyance is ambiguous, interpretation of the instrument is a matter of fact for the trier of fact. See Rutter v. McLaughlin, 101 Idaho 292, 612 P.2d 135 (1980).

The granting clause of the Easement in question provides that “the First Parties have this day bargained and sold, and by. these presents do hereby grant, bargain, sell, convey, transfer and deliver unto the Second Parties [the defendants], a permanent easement and right of way, for the following purposes, namely: [to build and maintain a roadway].” However, the habendum clause of the Easement later provides:

“TO HAVE AND TO HOLD the said easement and right of way unto the Second Parties, exclusively for their use, and unto their successors and assigns forever.”

The trial court, in its Memorandum Decision, stated:

“It would ... appear to be the general rule that the grant of an exclusive easement in effect passes the fee simple title to the grantee; and in this case all the elements of exclusiveness are present as well as the words of conveyance and description.”

The court concluded: “[T]he rights of the defendants] to the exclusive use of the roadway to the exclusion of all others, including the plaintiffs, should be quieted and confirmed in them.” Although somewhat unclear, it appears from the above statements that the trial court considered only the language in the instrument and held as a matter of law that the defendants had the exclusive right to use the easement. We conclude, however, as set forth below, that the Easement is ambiguous and should have been interpreted as a question of fact rather than as a matter of law.

The mere use of the word “exclusive” in creating an easement is not, in and of itself, sufficient to preclude use by the owner of the servient estate. The Supreme Court of Oregon, in George v. Coombes, 278 Or. 3, 562 P.2d 200 (1977), was faced with the following provision: “[T]he [defendants], their heirs, executors and assigns would have ‘a perpetual and exclusive easement for roadway purposes.’ ” Id. 562 P.2d at 200. The Oregon court acknowledged that the literal language in the grant, “without more, would ordinarily, but not necessarily, be held to mean that defendants’ right to use the easement was exclusive in the sense that it could not be used by others, including the plaintiff.” Id. 562 P.2d at 202. However, the court considered evidence other than the instrument and found that the servient estate owner was not prohibited from using the easement because the parties did not intend to make the easement exclusive in the grantees.

The Utah Supreme Court similarly interpreted a like clause in Weggeland v. Ujifusa, 14 Utah 2d 364, 384 P.2d 590 (1963). The instrument in Weggeland provided that the plaintiff was to receive “an exclusive right of way for roadway purposes as a private driveway,” along the edge of defendant’s land. The court determined that to make the easement exclusive in the plaintiff would burden the servient estate to a greater degree than was intended or necessary to satisfy the purpose of a private driveway.

An instrument which is reasonably subject to conflicting interpretation is ambiguous. See Rutter v. McLaughlin, 101 Idaho 292, 293, 612 P.2d 135, 136 (1980). The phrase “exclusively for their use” lends itself, without contortion, to a number of interpretations. The instrument could be interpreted as (1) the grant of an easement right of way to the grantee, the defendants herein, to the exclusion of all others, except the grantor; or (2) the grant of an easement right of way excluding all others, including the grantor; or, (3) as the grant of a fee simple estate to the grantee.³ Thus, the instrument is reasonably subject to conflicting interpretations and as such is ambiguous.

When an instrument is ambiguous in nature, the intention of the parties as reflected by all of the circumstances in existence at the time the easement was given must be considered in construing the granting instrument. Quinn v. Stone, 75 Idaho 243, 250, 270 P.2d 825, 829-30 (1954); see Cusic v. Givens, 70 Idaho 229, 215 P.2d 297 (1950). Therefore, the trial court should have considered extrinsic evidence of the circumstances and intentions of the original parties to the easement. We remand to the trial court to make a finding of fact regarding the intentions of the parties to the instrument of conveyance. In making such a factual finding, the trial court must consider all of the extrinsic evidence in the record to determine what the intentions of the parties were when they executed and accepted the instrument. See Hogan v. Blakney, 73 Idaho 274, 251 P.2d 209 (1952); Campbell v. Weesbrod, 73 Idaho 82, 245 P.2d 1052 (1952) (court must seek and give effect to intention of parties): see also, Gardner v. Fliegel, 92 Idaho 767, 450 P.2d 990 (1969). The parties should be permitted to reopen and introduce any additional relevant evidence on the question of intent that they may have.⁴ See Andrews v. Grover, 66 Idaho 742, 168 P.2d 821 (1946); Idaho Lumber & Hardware Co. v. DiGiacomo, 61 Idaho 383, 102 P.2d 637 (1940); Dybvig v. Willis, 59 Idaho 160, 82 P.2d 95 (1938); accord, Stecklein v. Montgomery, 98 Idaho 671, 570 P.2d 1359 (1977). The following factors, among others, should be considered. The granting instruments consistently referred to the interests granted as an easement or roadway, indicating that the grantors did not intend to grant any greater interest than that stated. Additionally, the roadway built by the defendants bisects the upper twenty acres of plaintiff’s property. If Madelaine Leischner, in granting the original easement, had intended that defendants have the right to exclude all others, including herself, from use of the roadway, she would have rendered one portion of her upper twenty acre parcel inaccessible from the other portion.

We reverse and remand to the trial court to reconsider all the evidence, and any new evidence which the parties may have, and make new findings of fact and conclusions of law and enter judgment thereon. See In re Lewis, 97 Idaho 299, 543 P.2d 852 (1975); Perry Plumbing Co. v. Schuler, 96 Idaho 494, 531 P.2d 584 (1975).

Costs to appellant. No attorney fees.

McFADDEN, J. (Retired), concurs.

1 . Plaintiff argues and a few courts have stated that an exclusive easement is tantamount to a fee, and therefore inconsistent with the nature of an easement. E.g., Duke v. Pine Crest Homes, Inc., 358 So.2d 148 (Ala.1978); George v. Coombes, 278 Or. 3, 562 P.2d 200 (1977); Van Natta v. Nys, 203 Or. 204, 278 P.2d 163 (1954), overruled on other grounds, Garza v. Grayson, 255 Or. 413, 467 P.2d 960 (1970); Weggeland v. Ujifusa, 14 Utah 2d 364, 384 P.2d 590 (1963). Indeed, Thompson, in his work on real property, states that “where the whole exclusive use of a thing is obtained, the right becomes an interest, and there is no longer an easement.” 2 Thompson, Real Property § 425, p. 646 (1980).

A careful reading of this passage, however, shows that an interest ceases to be an easement only where the whole exclusive use of a thing is conveyed. Accord, Restatement of Property, § 471, comment e (1944), where it is stated that “[a] conveyance which conveys the privilege of exclusive use for all purposes of all or part of the conveyor’s land conveys an estate in the land.” (Emphasis added.) Where less than the whole exclusive use is created in another, i.e., where privilege of use is for a particular purpose, the grant retains its easement status and the grantor retains the rights and privileges of a fee owner that are not inconsistent with the easement conveyed. “Whether there exist privileges of use inconsistent with that conveyed depends upon the pervasiveness of the privilege- created.” Restatement of Property, § 471, comment e (1944).

2 . Another reason given by courts refusing to find that an easement excludes use by the grantor is that such an interest in effect is a fee simple. To create an exclusive right in the easement holder is thus to give a greater interest than that which may have been intended by the grantor. See authorities cited in n. 1, supra.

3 . The trial court construed the Easement consistently with the third alternative, stating that it “appear[s] to be the general rule that the grant of an exclusive easement in effect passes the fee simple title to the grantee____” The trial court, however, found it unnecessary to hold that the defendants obtained a fee simple interest since they claimed only an “exclusive easement to the exclusion of everyone, including the grantor.”

4 . An affidavit of Madeline Leischner presented in support of plaintiffs motion to set aside the judgment indicated that Mrs. Leischner never intended that she or her successors in interest be excluded from use of the easement granted to defendants.