"The 2Point Way" – Does an Easement Include the Right to Repair?
In addition to the more obvious activities associated with an easement, one that may be overlooked is the question of maintenance and repair. The authority of state and local governments to maintain public highways is seldom questioned, and provisions for repair are sometimes spelled out in utility easements. However, terms of maintenance are often neglected in controlling documents for private easements, and may be omitted for other servitudes. Despite this frequent shortcoming, the common law right of maintenance for existing easements—public and private—provides the means by which the dominant users can maintain needed infrastructure.
Early English Precedent
Early English courts affirmed that the right to maintain and repair a private way was inseparable from the easement itself. Unless specific contractual obligations existed, the burden of repair fell on the dominant user. In the 1669 English decision Pomfret v. Ricroft, the court ruled in favor of a claimant—who had the legal right to water from a well—in his efforts to repair the pump.
Judge Twysden stated: “…when the use of a thing is granted, everything is granted by which the grantee may have and enjoy such use, as if a man gives me a license to lay pipes of lead in his land to convey water to my cistern, I may afterwards enter and dig the land to mend the pipes, though the soil belongs to another and not to me…” This standard was an integral part of British common law at the time of the American Revolution.
The right of repair may sometimes be considered a burden rather than a privilege. Another early English decision, Taylor v. Whitehead: 2 Doug. 745 (1781), describes a dispute over a lane running to a bridge, where the easement was created by prescription. For part of its path, the lane paralleled the river and floodwaters would periodically make the lane impassible. During these periods, the dominant users would travel outside the lane on what otherwise would be considered private land. The parties disputed the right of repair, and whether a right to travel around the flooded areas existed.
The court observes: “Lord Mansfield—the question is on the grant of this way. Now it is not laid to be the grant of a way, generally, over the land; but of a precise specific way. The grantor says “You may go in this particular line, but I do not give you a right to go either on the right or left. I entirely agree with my brother Walker, that, by common law, he who has the use of a thing ought to repair it.” In this instance, despite its origins as a prescriptive way, the application of the lost grant theory also mandates a presumption of a grant describing a distinct location—and the right to maintain it.
Mansfield makes a distinction between public highways and private ways insofar as the user of a private way has no right to trespass beyond the limits of the easement in cases where flooding blocks the way. This court also asks—rhetorically—whether the rule would be different for an easement by necessity.
English Standard Applied in the United States
In Prescott v. White, 38 Mass. 341 (1838), the Massachusetts court considered the extent of prescriptive rights associated with a mill raceway, and the attendant right to repair the structures necessary for the continued operation of the mill. This case affirms the legitimacy of Mansfield’s comments above, and considers their applicability to a mill raceway that had existed for many years, without any written record of an associated easement.
While prescriptive easements are generally defined—and bounded—by actual use, those limits are not so narrowly construed so as to make it impossible to maintain the structures that are the basis of the prescriptive right: “The effect therefore of the rule adopted by the judge and applied to the actual circumstances of this case was, that where one is the owner of an ancient mill, to which there has been attached a raceway, being an artificial canal, for conducting off the water from the mill, and without the free and unobstructed current of which the mill could not be worked, and such canal has from time immemorial passed through the land of another, and there is no grant or contract regulating the rights of the parties, the owner of the mill has a right to enter upon the land through which the raceway passes, and to clear out the obstructions therefrom, in the usual and ordinary mode in which such canals are cleansed, doing no unnecessary damage…”
Relying on Taylor v. Whitehead (described above), the court again applies the lost grant theory based on immemorial use, and concludes that the terms of the grant would have included the right to reasonable maintenance of the structures: “It must be also taken as an inference of law, in the absence of a grant or contract, that the party who enjoys the benefit of the easement is to keep it in repair.”
One of the relevant—and fundamental—corollaries of easement law is that dominant users do not need to ask permission to exercise legitimate rights relating to the driving surface, bridge, or pipeline at issue.
In North Carolina, an early dispute over the express reservation of a 33-foot private road affirms the right of the dominant user to access the entire stated width of the way. In Patton v. Western Carolina Educational Co.: 101 N.C. 408 (1888), the court considers the placement of gates and fences across the easement, restricting possible use to the width between the gateposts. This opinion is brief, but the final paragraph is telling: “The plaintiffs have shown title to the easement reserved, and we think the obstructions admitted to have been made were invasions of their right. A street with gates or fences across it is not what was reserved, but a full and unobstructed “33 feet for a street.”
In “The Law of Easements” (3rd American Edition); John Leybourn Goddard; 1880 Houghton Mifflin & Co.,the author emphasizes the well-established precedent both in England and the United States supporting the right of repair. Goddard points out that if the appurtenances to the easement were damaged and no right of repair existed, the dominant user would face the impossible choice of trespass, or of allowing the easement to be destroyed. Examples cited for authority include cases from California, Massachusetts, and New York.
More Recent Examples
A dispute over bridge repair—and the party responsible for maintenance—highlight the possible conflict between riparian rights and easement law in the Illinois decision Triplett v. Beuckman, 40 Ill. App. 3d 379 (1976). Rather than repair the bridge in this instance, Beuckman demolished the bridge and installed a solid causeway in its place leading to the island. The court concluded that this change was an excessive alteration of the area, depriving Triplet of legitimate rights as the servient owner: “In light of the above authorities, it is apparent that the duty to maintain and repair the bridge in the instant case was that of defendants, the Beuckmans. In destroying the bridge and constructing a causeway, defendants materially altered the character of the easement and increased the burden on the servient tenement. Plaintiffs are unable to use and enjoy that portion of the lake or lakebed which was previously accessible under the bridge, but which now is covered by the causeway.”
In the South Dakota decision Salmon v. Bradshaw, 84 S.D. 500 (1969), the court emphasizes the role of Practical Location in determining rights associated with a deeded easement agreement lacking an express width. Despite its initial ambiguity, once practical location fixes the extent of the right, it remains available to the dominant user to its full measure: “Plaintiffs are accordingly entitled to the free and uninterrupted use and enjoyment of the entire easement area for the clearly expressed purposes of the grant. This includes the “last inch as well as the first inch”. This concept remains valid even if the holder of the dominant right did not make full use of the easement in the past.
In Simonds v. Boyd: Conn. Super: CV075002667S (2008) the court considered the right of the owner of a prescriptive driveway easement to make repairs and gravel the surface. Prescriptive easements can be particularly challenging in these circumstances, as both the resulting rights and the physical extent of the easement are defined by use, rather than by an express written agreement.
The rights of dominant and servient owner must be balanced by the court, and the word ‘reasonable’ is frequently applied, allowing the courts to consider equities of each situation: “With reference to the owner of a prescriptive right of way over the farm of the other party, long ago we said: “The owner of the right of way may repair it, and do whatever is reasonably necessary to make it suitable and convenient for his use.”
Judge Leuba observes that, while sustained use is the basis for the creation of the right, the use need not remain completely static for eternity once created: “Even though the common and ordinary use which establishes the prescriptive right also limits and qualifies it, as one court aptly observed, “the use made during the prescriptive period does not fix the scope of the easement eternally.” … One commentator in this field states that “[i]f it [the above announced rule] were applied with absolute strictness, the right acquired would frequently be of no utility whatsoever. A right of way, for instance, would, as has been judicially remarked … be available for use only by the people and the vehicles which have passed during the prescriptive period.”
It should be noted that the New York courts have adopted a questionable standard regarding the expressed width of a deeded easement. Several recent decisions in that state conclude that a deeded private easement of expressed width must only be kept open over sufficient area to accomplish the purpose of the easement. The unusual stance—considering the stated width as a mere suggestion—is justified with the assertion that the ‘underlying intent’ of the deed was to provide access and the margins of the easement therefore may be blocked as long as access remains reasonable.
A Secondary Easement?
The Montana decision Laden v. Atkeson: 116 P.2d 881 (1941) introduces an additional twist to a dispute over an irrigation ditch—that of the ‘secondary right’ to access the ditch over the servient estate for purposes of repair and maintenance. In addition to the ditch itself, a dam had been built to divert water from Beaverhead River. These ‘ditch rights’ were uncontested—the dispute arose over the plaintiffs’ use of a road to access the dam with construction supplies necessary for its maintenance.
The servient owner claimed that use of the road amounted to the award of a prescriptive easement—a right separate from the irrigation easement. Justice Erickson rejects arguments of a prescriptive claim and instead interprets the use of the road as a “right in the nature of a secondary easement”.
“A person having an easement in a ditch running through the land of another may go upon the servient land and use so much thereof on either side of the ditch as may be required to make all necessary repairs and to clean out the ditch at all reasonable times.” …
Kindred to the above is the equally well established rule that: “Such secondary easements can be exercised only when necessary and in such a reasonable manner as not to needlessly increase the burden upon the servient tenement.”
In this case, several possible routes existed by which the easement holder could access the dam for repair. Evidence demonstrated that the lower court correctly recognized a right of access over the route that would cause the least inconvenience to the servient owner. Long use by the dominant user and apparent acquiescence for many years by the servient owner also tended to prove the location of the secondary right.
The court also affirmed the right to use sufficient lands around the dam and water intake to maintain and repair the dam. Detailed research made part of this opinion highlights that the right of repair that are essential—and indivisible from—the more obvious aspects of the easement.