Plaintiff brought this declaratory judgment action to have the trial court determine the extent of an easement for ingress and egress for defendant’s benefit that crosses his property. After the trial court ruled, defendant brought this appeal. We review de novo, ORS 19.415(3), and affirm.
Plaintiff and defendant own adjacent property. Access to defendant’s property is provided by an easement across the front of plaintiffs property. The easement was created by deed and is defined as “an easement for right-of-way purposes over a strip of land 25.0 feet in width lying adjacent to and on the southerly side of [plaintiffs property],” described in metes and bounds with a fixed location. The easement contains a gravel road that varies between 14 and 20 feet in width that defendant uses to reach his property. Plaintiffs driveway is also connected to the gravel road. Trees line the gravel road on both sides, and there are other natural and man-made obstructions within the boundaries of the easement. Parts of the road are not wide enough to allow two cars to pass each other.
Defendant and plaintiff disagreed about whether defendant could widen the road, whether he could pave the road, and whether he could put a gate across the road. Widening and paving the road would require the removal of trees, large rocks, and a dirt berm placed near the road by
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The trial court, after viewing the property, ruled that the easement was sufficient for ingress and egress, that paving was not necessary and that a few trees would have to be limbed or totally removed in order to allow continued access to defendant’s property. The trial court ordered plaintiff to remove a few specific trees and ordered defendant to prune any limbs hanging below 16 feet over the roadway. The court also declared that defendant could widen the road to 16 feet and 18 feet along different sections of the road, as long as the road stayed within the 25-foot easement. Defendant was ordered not to install a gate, and not to remove the large rocks or the dirt berm, in part because the trial court was not convinced that there was sufficient evidence to show that the obstructions were within the boundaries of the easement. 1
Defendant appeals from the trial court’s judgment, arguing that its findings are unreasonable and that it did not take into account the balancing of hardships between plaintiffs servient land and defendant’s dominant land interests. Defendant asserts that
We assume, for the purposes of this appeal, as did the parties, that all of the obstructions that defendant seeks to remove are within the 25-foot strip granted as an easement. The threshhold legal question before us is what legal test we should use to determine whether defendant can make the changes that he proposes. In
Tooker v. Feinstein,
“An easement owner is limited to those uses of the easement that are reasonably necessary for the easement’s intended purpose. The owner of the servient estate also has a right to make reasonable use of his or her land, and his or her rights and those of the dominant tenant are mutually limiting.” Tooker,131 Or App at 687 (emphasis added).
In other words, an easement holder can make only such use of an easement as is reasonably necessary to accomplish the purpose for which the easement is granted and the remaining dominion over the land upon which the easement lies continues with the servient landowner.
Ericsson v. Braukman, 111
Or App 57,
Defendant testified that he has had to back up his car to a wider part of the road on 10 to 15 occasions in the past five years to permit another car to pass. On one occasion, defendant’s guests sustained damage to an air conditioning unit on their vehicle when a low-hanging branch from one of plaintiffs trees hit it. There is no evidence that vehicles have traction problems on the road or that the road is prone to erosion or flooding. The trial court ruled that the widening of the road in places and the cutting of low-hanging
Nonetheless, defendant urges that the 25-foot easement granted to him contemplates a two-lane road and that paving the road “would eliminate dust, would be safer in winter with better traction, would increase the property values and would require less frequent maintenance than gravel.” It is clear from the language of the deed granting the easement to defendant from plaintiffs predecessors in interest that the location of the easement is along the southerly 25 feet of plaintiffs property. However, the physical location of the easement does not define the uses of the property by the servient and dominant estate owners. Here, the deed also
defines the scope of the easement; the easement is for “right-of-way purposes.” Thus, the stated scope of the grant of the easement acknowledges the right of plaintiff to make use of the 25-foot strip so long as that use does not interfere with defendant’s right of way to his property. As the court said in
Miller v. Vaughn,
“When an easement is granted, nothing passes as an incident to such grant but what is necessary for its reasonable and proper enjoyment. And notwithstanding the grant, there remains in the grantor the right of full dominion and use of the land, except so far as a limitation of his right is essential to the fair enjoyment of the right of way which he has granted.”
On this record, it cannot be said that a two lane road is essential to defendant’s ingress and egress to his property. Although the relatively few times in a five-year period that a motorist on the driveway has had to back up his or her car to permit another car to pass may have posed a temporary inconvenience, those brief interruptions in the use of the easement do not rise to the level of an interference with defendant’s fair enjoyment of the driveway. On the other hand, the widening and paving of the driveway to 25 feet will require the removal of numerous trees on plaintiffs property, thereby causing a material interference with the enjoyment of his property. We hold that the trial court correctly rejected defendant’s requests that the driveway be widened and paved at this time.
Finally, defendant seeks the right to install a gate on plaintiffs property. He argues,
“Defendant has had unwanted trespassers on his property. He desires a gate at some distance from his home to prevent theft and trespassing. There is no turnaround between Plaintiffs entry to the easement and Defendant’s property line. Placement of the gate just beyond the point of entry of Plaintiffs would allow [the] parties to turn around.”
According to the record, defendant has installed a gate on his own property near the property line between his property and plaintiffs property. In
Ericsson,
Defendant’s other arguments do not warrant discussion.
Affirmed.
Notes
The parties did not offer into evidence a survey of the easement’s boundaries. Instead, they presented evidence that the county road next to the easement had a 50-foot easement. They presumed for the purposes of trial that if they measured 25 feet from the center line of the county road, that would be the boundary between the county’s easement and defendant’s easement, and that if they measured another 25 feet from there, that would be the outside boundary of the easement. The trial court ruled that it could not determine the location of the easement’s boundaries from the easement’s legal description because doing so would require it to assume that defendant’s easement in fact began where the county easement left off, and that the county road was properly placed and centered within the county’s easement. We agree with the trial court that the location of the easement’s boundaries cannot be ascertained from its legal description without a survey.
“When the purpose of an easement is attainable by using less than all the designated area, courts typically require the easement holder to use only as much of that strip of land as is reasonably convenient or necessary.” Jon W. Bruce,
Law of Easements and Licenses in Land
§ 7.0215] (1995).
See, e.g., Hyland v. Fonda,
44 NJ Super 180, 183,