Fields v. District of Columbia

• Decision Date: 30 December 1970
• Docket Number: No. 23315.,23315.
• Citation: 443 F.2d 740
• Parties: Robert L. FIELDS et al., Appellants, v. DISTRICT OF COLUMBIA et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

443 F.2d 740 (1970)

Robert L. FIELDS et al., Appellants, v. DISTRICT OF COLUMBIA et al.

No. 23315.

United States Court of Appeals, District of Columbia Circuit.

Argued May 15, 1970.

Decided December 30, 1970.

As Amended January 11, 1971.

Mr. Thurman L. Dodson, Washington, D. C., for appellants.

Mr. Joel C. Wise, Washington, D. C., with whom Mr. Roger Peed, Washington, D. C., was on the brief, for appellee Morrissette.

Messrs. Charles T. Duncan, Corporation Counsel for the District of Columbia at the time the brief was filed, and Hubert B. Pair, Acting Corporation Counsel at the time the brief was filed, and Richard W. Barton and Ted D. Kuemmerling, Asst. Corporation Counsel, were on the brief for appellee District of Columbia.

Before WRIGHT, MacKINNON and WILKEY, Circuit Judges.

MacKINNON, Circuit Judge (in Chambers).

This appeal involves the rights to a strip of land 16 feet by approximately 670 feet running from Talbert Terrace to Nichols Avenue in Southeast Washington. Appellants all own residential lots which abut on the strip of land, which is known as Parcel 231/5 Square 5869, and they allegedly have an easement for use of the strip as a "roadway," in common with others, by virtue of a reservation in a deed conveying the strip to the others, as tenants in common as and for a "private roadway." In recent years the roadway has not been used over its whole length and is now overgrown with vegetation.

By deed in 1875, Catherine (also Catharin, in the deed) A. Talburtt conveyed the strip to Ella H. Barnard et al.¹ as tenants in common for the specific purpose of creating a "private roadway." The appellants allegedly claim their easement as successors in title to the easement reserved by the grantor in the 1875 deed, and the appellee, Arthur E. Morrissette, claims title in fee to the actual land underlying the roadway, Parcel 231/5 Square 5869, through tax deed from the District of Columbia dated December 31, 1963, recorded in Liber 12147 at page 322.² The validity of appellants' easement and of appellee's interest in the parcels to the controversy are not in question.

Morrissette desires to build multi-family dwellings of the garden-apartment variety on land which he owns adjacent to the roadway. His original plans called for the widening of the sixteen foot roadway to twenty-three feet to provide access to the parking facilities of the proposed apartment complex. There was also provision in the plans for the parking of some seven cars on the private roadway and for some other modifications. The District Court judge refused to enjoin Morrissette from building the roadway as planned but provided that appellants would be given a perpetual easement to the entire 23 foot roadway, and the parking places for the seven cars would be rearranged so as to not block access to the rear of the properties of two of the appellants, Howard and Patterson.³ Also, if Morrissette's building plans were carried out, about half way up the strip an elevated curb would be erected by Morrissette diagonally across the strip so as to interfere with any use of the easement by appellants Howley and Cass, and at the end of the roadway farthest from the Nichols Avenue exit a planned retaining wall would slightly encroach on the 16 foot width. However, that end of the strip is very steep and has never offered access to Talbert Terrace which is the public road on that end. The trial judge thought the retaining wall was a "de minimus" infringement of the easement and only a technical one which when balanced against the paving of a 23 foot roadway would amount to a net gain to the appellants, albeit one they do not desire. Thus, the twenty-three foot easement which the trial judge approved in lieu of the original easement does not follow the line of the original easement or contain all of its actual footage. The trial judge and the appellees rightly point out that Morrissette's proposed roadway would allow appellants effective access to the rear of their lots which is something that has never been possible in the past. It is quite apparent that appellants seek principally not to protect their right to the easement, but rather to block the building of an apartment complex at their back gates. The trial judge, in his opinion, said:

Equity traditionally does not grant an injunction such as is prayed for here for purely technical or minor violations of someone\'s rights. Equitable considerations must play a major part in determining whether equitable relief should be granted. Equity jurisprudence differs from the law side of the courts, where it is sufficient to establish a technical violation of a right.

We are not unappreciative of the policy and logic behind the District Court opinion. However, a careful survey of the case law of property rights in easements persuades us that the District Court erred in its decree which would deprive the appellants of rights which they have as a matter of law.

Appellants argue that the trial court erred in dismissing the complaint against the District of Columbia. As we read appellants' complaint, it involves a claim of title and rights to real property. The District of Columbia has only issued a building permit and in so doing it does not purport to adjudicate interests in land. No claim is made that officials of the District have abused any rights of the appellants in granting of the building permit. Nor is the District of Columbia a necessary party since complete relief could be granted by issuing an order addressed to Morrissette no matter what the finding of the trial court might be.⁴ Therefore, the District was not a necessary party, and dismissing as to them was proper.

The first real task in resolving this controversy is to define the precise nature of the property right which the appellants assert they have.⁵ For a number of years no taxes had been paid directly on the strip of land representing the easement, and in 1963 Morrissette paid the back taxes in order to acquire a tax deed to the land. The teaching of Engel v. Catucci, 91 U.S.App.D.C. 54, 197 F.2d 597 (1952) is that a tax deed does not extinguish an easement appurtenant which was created by a written conveyance.⁶ The rationale is that such an easement runs with the dominant estate and enhances its value which is accordingly taxed at a higher rate.⁷Engel means that appellants' common easements appurtenant for a "roadway" were not extinguished or affected by the tax deed. The servient estate, which is basically the underlying strip of land described in Morrissette's tax deed, consists, at most, only of that interest which remains after the dominant easement appurtenant is carved out of it.

The nature of the dominant interest in an easement created by deed is quite logically to be determined by the terms of the document creating it, at least in the first instance.⁸ The 1875 deed conveyed fee title to the strip of land "* * * as and for a private roadway leading to said Nichols Avenue and for no other purpose whatever. * * *" (Emphasis added.) The strip abuts on the rear of the appellants' lots on the plat as recorded with the 1875 deed. From the location of the strip on the plat and the words of the grant it is clear that the intent of the original grantor was (a) to create an access to the land owned by the grantees and (b) to reserve an access to the land owned by the grantor, then designated as "Lot 9" and which presently includes a number of the lots owned by appellants.⁹ Of course the use of the land has changed since the original grant and to some extent practical use of this strip may have changed considerably since its inception, but it is not questioned here that appellants are successors in title to a sixteen foot easement appurtenant for a "roadway" adjacent to the rear of their lots. Given the law in the District represented by Engel, and the language of the reservation which creates appellants' easement, all the appellants could reasonably expect that the entire sixteen feet would continue to be available for their use as a roadway. They were not required to so use it to preserve that right.¹⁰

The decision of the trial court does not recognize the right of appellants to a continuing easement immediately behind their lots. Instead, under its decree, Morrissette...