Latham v. Garner

• Citation: 105 Idaho 854,673 P.2d 1048
• Decision Date: 26 January 1983
• Docket Number: No. 13435,13435
• Parties: Denny LATHAM, Plaintiff-Appellant, v. Harold D. GARNER and Betty L. Garner, husband and wife; and John Doe Garner, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 1048

673 P.2d 1048

105 Idaho 854

Denny LATHAM, Plaintiff-Appellant, v. Harold D. GARNER and Betty L. Garner, husband and wife; and John Doe Garner, Defendants-Respondents.

No. 13435.

Supreme Court of Idaho.

Jan. 26, 1983.

On Rehearing Dec. 28, 1983.

Danny J. Radakovich of Rapaich & Knutson, Lewiston, for plaintiff-appellant

J. Ray Cox, Jr. of Cox & Bean, Coeur d'Alene, for defendants-respondents.

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 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.

Idaho cases directly on point, nor do we find any.

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 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).

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 non-exclusive 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 non-exclusive 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).

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 defendant[s] 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...