“The 2Point Way” - Frustration of Purpose—Cessation of Purpose—Cessation of Necessity (Easements)
This article considers three separate legal principles associated with the extinguishment of easements. The phrases that describe them sound very similar, but there are important distinctions between them. Confusion over these concepts arises because they share a common denominator; they all involve a change of circumstance that extinguishes the servitude.
“Frustration of Purpose” is an operation of law that can extinguish an easement when it can no longer serve its intended purpose. This concept generally is applied to easements but also may be relevant to other servitudes or profits. To declare an easement extinguished under this principle requires careful consideration of the controlling documents and facts of the case.
“Cessation of Purpose” is a separate principle with a similar name that is predicated on the presumed intent of the parties. Under this doctrine, original intent—whether expressly stated or implied by actions and circumstance—identifies a subsequent condition or time limit that was meant by the parties to terminate the right.
The difference between the first two concepts is subtle but critical. The best way to differentiate between them to focus on the nature of the circumstance that extinguishes the easement.
Frustration of purpose is triggered by alterations beyond the control of the parties who have rights to the easement. These could include the gradual physical alteration of the land, avulsive changes of coastlines or the enactment of state or federal laws—or any combination.
By contrast, cessation of purpose generally is the result of occurrences that could have been anticipated by the original parties who created the easement. Temporary construction easements that expire upon the completion of the project are one common example.
“Cessation of Necessity” is distinct from the first two principles described above. This doctrine is relevant only where an easement was created by implication based on necessity. Cessation of Necessity may not be applied to disputes over express easements. The general rule is that an easement implied by necessity is extinguished by operation of law when alternate legal access to a tract is established and the necessity no longer exists.
Frustration of Purpose: Massachusetts Examples
Proper application of this principle requires careful consideration of the original language and/or circumstances creating the easement to determine its purpose. Where the language of the relevant documents is vague or ambiguous, surrounding circumstances at the time also may be of assistance to the courts in determining the scope and purpose of the servitude.
A succinct statement of the general premise is found in Makepeace Bros., Inc. v. Town of Barnstable, 292 Mass. 518, 525 (1935): “When a right in the nature of an easement is incapable of being exercised for the purpose for which is created, the right is considered extinguished.” This ruling describes the extinguishment of an easement intended for use by the whaling industry. When federal laws prohibiting the harvest of whales were enacted, it became impossible for the easement to serve its stated purpose.
Several recent decisions illustrate more mundane applications of this concept to easements intended for access or recreational use. An excellent discussion of frustration of purpose is found in the Massachusetts ruling Rigo v. Israel: 22 LCR 447 (2014). The primary dispute is the status of a “20-foot way” extending to Beach Area “C” on the shore of Sheep Pond. Rigo argued that the terms of the easement specified “beach use.” He then proposed two different theories for its extinguishment by frustration of purpose.
Rigo’s first argument notes that the area was overgrown, frequently submerged, and unusable for any recreational beach use. Rigo claimed that it was “…densely vegetated and unwelcoming to any prospective beach user.”
In this instance, the judge visited the site and includes his personal observations of the area in his decision: “To be sure, Beach Area "C" hardly fits the ideal image of a beach. But from the testimony and exhibits admitted at trial, which were confirmed by my observations at the view, there is enough space on Beach Area "C" to place a chair to read a book or sunbathe, to go swimming or fishing, or to launch a small boat or kayak into the Pond. Thus, Beach Area "C' is still capable of being used for these beach purposes, which is the specific purpose of the easement described in the granting instrument.”
Rigo’s second argument emphasizes the regulations imposed on this sensitive habitat area by the Conservation Commission. This claim highlights the confusion that can result from the intersection of regulatory issues and real property rights. Rigo asserts that: “…given the significant regulatory hurdles associated with the protection of wetlands and rare species, it is legally impossible for the Brewster Conservation Commission to permit Mr. Rigo to access Beach Area "C" or use Beach Area "C" for beach purposes.”
Court records clearly indicate the plethora of regulatory hurdles involved in any land use contemplated in this area: “The Way travels through the 100 foot buffer zone under the Wetlands Protection Act regulations, the 50 foot buffer zone under the Brewster Wetlands Bylaw, bordering vegetated wetlands, and likely also a vernal pool habitat and priority/rare species habitat.”
Despite these complications, the court found Rigo’s argument insufficient to justify the extinguishment of the easement. Judge Foster emphasizes that use of the easement must be permanently and irrevocably blocked before “impossibility of use” justifies application of the doctrine. While numerous restrictions are in place, this court does not consider them insurmountable and also recognizes that regulations are subject to revision and subsequent change. Government agencies responsible for these rules may opt to exercise discretion and grant a variance. This court concludes that the current impediments to use of the easement do not preclude all possibility of present or future use.
Another Massachusetts decision reached a very different result in Murphy v. Conway: 20 LCR 26 (2012). In this instance, Judge Piper concluded that the easement originally intended to grant access to the ocean was extinguished due to major changes to the coastline since the grant of the easement in 1911.
The disputed easement originally crossed an upland area and then descended a steep slope to the beach. Several staircases existed in the general vicinity at the time of the 1911 grant of the easement.
Since that time, shoreline erosion had obliterated the beach completely and altered the original sloping approach to a precipitous cliff. In addition, a major storm in 1978 prompted the U.S. Army Corps of Engineers to construct a massive seawall along the foot of the cliff. This wall was approximately 20 feet high and would complicate any attempt to enjoy the shoreline.
Judge Piper concludes that the change in terrain since 1911 and construction of the seawall preclude any possibility of re-establishing a beach in the vicinity of the easement: “The side of the Cliff is now armored at its base by heavy rock revetment, and is so steep and dangerous as to effectively preclude transit over the side to reach that revetment.”
This court does not apply this principle lightly when considering the possible extinguishment of an easement: “…these dramatic changes have resulted in the termination of the record 1911 easement. An easement is not to be undone because it has gone unused, nor simply because some of the granted rights may be less capable of convenient exercise. But the decisions of our courts instruct me that when an easement is granted for a particular purpose, it is to be used only for that purpose, and that, should the attainment of that purpose become impossible, the easement ought be treated judicially as no longer extant.”
The plaintiff’s argument that the easement was still passable as far at the top of the cliff was also unsuccessful. They attempted to claim the right to walk to the cliff top and use the cliff top as a recreational area and overlook to the ocean.
The court again emphasizes that the intent of the easement was for access over the cliff to the beach and that other incidental uses would represent an expansion of the original right not contemplated by the original parties.
Cessation of Purpose
Olson v. H&B Properties: 118 N.M. 495 (1994) considers Cessation of Purpose to justify the destruction of an easement due to changing circumstances. This dispute focuses on a drainage ditch used for irrigation. The court is careful to note that the dispute is not over the rights to water by appropriation, but to the easement that allows the transport of water through the ditch.
Judge Frost observes: “The rights of one holding an easement in the land of another are measured by the nature and purpose of the easement. Certain easements by their nature are inherently limited in duration. An easement that is created to serve a particular purpose terminates when the underlying purpose for the easement no longer exists. This principle, known as the cessation of purpose doctrine, is based upon the assumption that the parties intended the easement to terminate upon cessation of its purpose, and it serves to eliminate meaningless burdens on land.” The court emphasizes the effect of presumed intent under this doctrine. This argument also appears valid for any easement that is required only for a limited span of time. This court concludes that proper application of this principle can be beneficial to society.
The Wisconsin court acknowledges Cessation of Purpose as a justification for extinguishing a right in Niedfeldt v. Evans: 272 Wis. 362; 75 N.W.2d 307; 1956.
Quoting American Jurisprudence, Judge Broadfoot summarizes the doctrine of cessation of purpose as follows: “There is a general rule that easements are terminated with the cessation of the purpose or necessity for the easement. That rule is illustrated by the following quotations:
“There is a well-established rule that an easement may be terminated by the completion of the purpose for which it was granted, inasmuch as the reason for, and necessity of, the servitude are at an end. Thus, if an easement is granted for a particular purpose only, the right continues while the dominant tenement is used for that purpose, but ceases when the specified use ceases. Moreover, a way of necessity is a temporary right in the sense that it continues only so long as the necessity exists.””
Comparing Cessation & Frustration of Purpose: New Hampshire
The New Hampshire courts recently recognized both Frustration of Purpose and Cessation of Purpose as separate doctrines in a single decision: “This cessation of purpose doctrine is designed to eliminate meaningless burdens on land and is based on the notion that parties that create an easement for a specific purpose intend the servitude to expire upon cessation of that purpose.”
Frustration of Purpose is described as the “Impossibility of Purpose Doctrine”, but its characteristics are similar to those identified by other courts: “Under the impossibility of purpose doctrine as set forth in the RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES), supra 7.10(1), at 394:
When a change has taken place since the creation of a servitude that makes it impossible as a practical matter to accomplish the purpose for which the servitude was created, a court may modify the servitude to permit the purpose to be accomplished. If modification is not practicable, or would not be effective, a court may terminate the servitude. Compensation for resulting harm to the beneficiaries may be awarded as a condition of modifying or terminating the servitude.”
Cessation of Necessity:
Easements implied by necessity are sometimes recognized when grantors divide their original tract into two or more parcels in a way that leaves one or more resulting lots with no recognizable legal access. These easements are considered an extension of the intent of the original parties because a court will not assume that a grantor would sell land, yet deny the grantee the right to access it. An Easement by Necessity is created by the circumstances that require its existence.
Recognition of Easement by Necessity can be traced to early English decisions. In the benchmark ruling Clark v. Cogge (79 E.R. 149 King’s Bench 1607), the court observes: “…if a man hath four closes lying together, and sells three of them, reserving the middle close, and hath not any way thereto but through one of those which he sold, although he reserved not any way, yet he shall have it, as reserved unto him by the law…”
Servitudes created by this specific mechanism are unique because they are also immediately extinguished by operation of law when the necessity is eliminated. Construction of a new public road, or a grant of another means of legal access serve to extinguish the easement by necessity immediately. As stated in the benchmark South Carolina decision Williams v. Tamsberg: 821 S.E.2d 494 (2018): “When an easement is implied by necessity, courts in other jurisdictions have held that the easement ceases at the time the necessity no longer exists.” The court emphasizes that this principle cannot be applied to any easement created by express grant.
Using similar language, the Oregon court highlights the unique characteristics of creation and extinguishment of an Easement by Necessity as seen in Cotsifas v. Conrad, 137 Ore. App. 468 (1995): An express easement may be extinguished only by consent, … prescription, … abandonment, … or merger … Only an easement by necessity terminates when the necessity ceases.
It is clear that each of the mechanisms described above are bounded by distinct rules, and may only apply where the specific situation demands. As with other aspects of property law, the parties claiming extinguishment bear the burden of proof.
These doctrines—and the subtle differences between them—reinforce the need for a clear understanding of relevant legal principles associated with easements. Both the underlying intent of the parties and the physical circumstances related to the servitude will play a major role in its eventual fate should subsequent changes occur.