Unmistakable Marks: Frustration vs. Cessation of Purpose
“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 applied to other servitudes or profits. In general, the parties claiming extinguishment also bear the burden of proof. Courts will not declare an easement extinguished without careful consideration of the facts of the case.
“Cessation of Purpose” seems similar to frustration of purpose in many ways, but is predicated on the presumed intent of the parties. In this instance, the intent could be stated or implied by actions and circumstance.
The difference between these two concepts is subtle. The best way to differentiate between the two is to focus on the nature of the circumstance that extinguishes the easement.
Frustration of purpose is characterized by circumstances beyond the control of the party with 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.
By contrast, cessation of purpose generally is triggered by a circumstance that could be contemplated by the original parties who created the easement. Temporary construction easements that expire upon the completion of the project are one common example. Easements by necessity are also extinguished when alternate legal access to a tract is established. To illustrate these two principles, this article focuses on rulings from Massachusetts and New Mexico.
Frustration of Purpose: Massachusetts
Proper application of this principle requires careful consideration of the original language creating the easement to determine the purpose that the easement was intended to serve. 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, 198 N.E. 922 (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 chronicles the extinguishment of an easement intended for use by the whaling industry. When laws prohibiting the harvest of whales were put in place, 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 physical circumstances 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.
Another interesting aspect of this case was the plaintiff’s argument that the easement was still passable as far as the top of the cliff. 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: New Mexico
Olson v. H&B Properties: 118 N.M. 495; 882 P.2d 536 (1994) provides another perspective on 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 in this instance. Note that this argument could easily be applied to any easement that is required only for a limited span of time. This court clearly considers proper application of this principle to be of benefit to society at large.
Several subsequent New Mexico rulings have considered cessation of purpose in different contexts. Sitterly v. Matthews: 129 N.M. 134; 2000-NMCA-037; 2 P.3d 871 (2000) ponders the continued existence of an easement when more advantageous access to the parcel was created. Proper resolution of this issue required the court to consider the intent of the parties who created the easement. Further complications were introduced by the trial court’s disputed conclusion that the easement was an implied servitude created by necessity.
Matthew argued that, while the original easement was created by necessity, subsequent quiet title action somehow converted the easement into one created by grant. Matthew’s argument failed on this count. The court ruled that subsequent conveyance of the dominant tract did not change the nature of the servitude.
This court summarizes the doctrine of cessation of purpose as follows: An easement created to serve a particular purpose terminates when the underlying purpose for the easement ceases to exist. … In a cessation of purpose case, the trial court must first determine why the easement was created.
While the judge concludes that the court can terminate an easement in this manner, it is more accurate to say that the easement is terminated by the operation of law. The court proceedings then provide notice and recognition that the easement has been extinguished.
Consideration of these principles reinforces the need for clear understanding of rules of construction as they apply to 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.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source is an attorney admitted to the bar in your jurisdiction.