‘Overburden’ of an easement is a common source of dispute, but the concept itself — as with many other aspects of easement law — is more complex than it seems at first glance. In order to determine what activities are acceptable within a given easement, it is necessary to know the type of easement, the mechanism by which it was created, relevant surrounding circumstances and the specific terms (if any) associated with its formation.
Court disputes relating to overburden can be found in early 20th century decisions, but the vast majority have been heard within the last 30 years. This recent upward trend reflects both rising population densities and an increased significance of easements in modern society.
Private Rights of Access
One group of disputes relates to access roads that, in turn, exist on private easements appurtenant. (See POB, July 2019) Whether express or implied, an easement appurtenant often was created to serve a specific dominant tract and generally cannot be used to access other parcels.
This principle was highlighted in the Hawai’i decision Cooper v. Sawyer: 405 P.2d 394 (1965). Judge Wirtz observes: “The principles of law involved are well settled and do not appear to be disputed. The owner of the dominant tenement (Lot C) may not subject the servient tenement (Lot P) to servitude or use in connection with other premises to which the easement is not appurtenant.”
When considering the possibility of overburden of a deeded easement, specific terms of the grant or reservation can play a major role in determining what uses or increases in traffic are permissible. Some easement documents may define a broad range of use — in a few cases, they might even allow expansion of the easement to additional tracts. The rights created by more general language — and those where surrounding circumstances aid in defining the resulting right — may be more limited.
A mere increase in traffic on a driveway easement is not necessarily an overburden, particularly where the driveway easement is not restricted by specific language. Courts recognize that population densities increase over time, which often results in an increased frequency of use.
The Delaware decision Green v. Templin: 2010 WL 2734147 reflects the prevailing national trend, recognizing that recent development of a formerly rural dominant tract does not create a presumption that its associated access easement is being mis-used. Nor is increase in traffic associated with such development an automatic overburden. This case lists specific circumstances that may point to overburden of an easement: “…evidence tending to support a finding that an easement is being overburdened includes: “(1) decreased property value; (2) increased noise and traffic or interference with the servient owner’s peace and enjoyment of the land; and (3) physical damage to the servient estate.”
Bright Line Rule?
It has long been considered axiomatic that overburden occurs where an easement was created across ‘A’ to serve the original dominant tract B, and the owner of B then extends the driveway across ‘B’ to serve an ‘after-acquired’ tract ‘C’. In this situation, the intent of the parties creating access to ‘B’ is not automatically presumed to also include ‘C,’ a separate parcel that was not contemplated in the original agreement.
However, this formerly unassailable position has come into question in several recent decisions. Connecticut is one of several states that have enunciated a narrow exception to the “bright-line theory” regarding overburden when the dominant owner acquires additional lands, as seen in Abington Partnership v. Heublein: 257 Conn. 570; 778 A.2d 885 (2001): “the mere addition of other land to the dominant estate does not [necessarily] constitute an overburden or misuse of the easement.”
In explaining the holding of Carbone in Heublein, we reiterated that, although an easement of access will not be presumed to attach automatically to after-acquired property, “in some circumstances, the parties at the time of the creation of an easement may be found to have contemplated, as a matter of law, that its benefits might accrue to adjacent property that was not formally within the terms of the easement.” … “The nub of our holding [in Carbone] was to reject a bright-line rule that permitting adjacent after-acquired property to benefit from an easement of access automatically constitutes an overburden or misuse of the easement. …We adopted instead the principle that the construction of an easement requires inquiry into the intent of the parties when the easement was created … To determine that intent, we held, a court reasonably may take into account the proposed use and the likely development of the dominant estate.” This limited exception is in turn subject to the caveat that the proposed additional use does not constitute a material increase in the use of the servient tract.
The Utah decision Lutheran H.S. Assn. v. Woodlands III Holdings: 81 P.3d 792 (2003) is another example of the erosion of absolute limits against easements serving additional tracts acquired by the dominant owner after the easement was created. In this instance, a parking deck was built on tract ‘C’, but the residents using the parking deck actually lived on tract ‘B.’ The court ruled that the additional use of ‘C’ for a parking deck did not constitute an overburden.
Additional mitigating factors in this dispute were found in the rather broad scope of the original recorded easement: “Utah law looks to the language of the grant, the circumstances attending the transaction, the situation of the parties, the state of the thing granted, and the object to be obtained, construing the instrument most strongly against the grantor and most favorably to the grantee, to determine what use is permitted. … An overburdening of an easement by the dominant estate may only occur if use of the easement substantially increases use of the servient estate beyond that contemplated by the parties at the time of the grant.”
An odd variation of overburden may occur when an individual buys a residential lot in a subdivision for the express purpose of using the purchased lot and the existing subdivision roads to create easy and inexpensive access to a more remote undeveloped tract. In these instances, restrictive covenants in deeds, subdivision regulations or zoning also may defeat the buyers’ attempts to use a residential lot for road access.
Separate questions — and standards — arise when dealing with public or quasi-public easements associated with major utilities, railroad corridors, and public highways. Again, not every change in use is an automatic overburden. Changes in voltage are not generally considered an overburden on power lines, and railroad corridors originally created as common carrier lines are not overburdened by conversion to light rail.
Discussion of overburden for public highways often requires distinctions between rural roads and city streets. Courts must also recognize the difference between roads where a unit of government owns the fee, as opposed to those where the fee is in private ownership, but subject to a public easement. The appropriate uses for a public easement created by condemnation can be a source of friction between corporations and municipalities. In Keokuk Junction v. IES Industries: 618 N.W.2d 352 (2000), the Iowa court considers a strip of land originally owned in fee by KJRY, a railroad company. An easement over a portion of this strip was condemned by the city of Keokuk for “public highway purposes” associated with Twin Rivers Drive. The city then granted permission to IES to build power lines within the condemned strip. The outcome of this case hinges on two points: (1) the city did not condemn the fee, only an easement, and (2) IES is both a ‘for-profit’ corporation and a public utility under Iowa law.
Considering whether the addition of power lines to a public highway is an additional servitude, Judge Snell acknowledges that case law in other states is not always consistent and identifies five different positions taken by various state courts.
The Iowa court ultimately ruled that the condemnation by the city to create a public road did not permit the addition of a ‘for-profit’ power line to be installed free of charge. It also includes standards to determine acceptability of additional uses for an easement created by a condemnation proceeding: “To determine the scope of the easement, this court compares the language of the easement with the proposed use. Three considerations are: (1) the physical character of past use compared to the proposed use; (2) the purpose of the easement compared to the purpose of the proposed use; and (3) the additional burden imposed on the servient land by the proposed use.” In general, additional rights not mentioned in the document or implied by surrounding circumstances will not be presumed. Silence on a given issue in an easement description should not be construed as permission.
Easements Based on Prescription, Implication
Overburden is particularly problematic in cases where the easement was created by unusual mechanisms such as prescription, as seen in the Maine decision Gutcheon v. Becton: 585 A.2d 818 (1991). In general, the terms of an express easement can often be determined based on the original document. By contrast, prescriptive easements generally are limited in scope to those activities that created the original right. Even in these instances, some increase in traffic is to be expected: “In order to remain useful to the dominant estate it serves, a prescriptive right of way must encompass some flexibility of use, and adapt to natural and foreseeable developments in the use of the surrounding land.” The dominant tract — originally undeveloped — was later converted to residential use, but the traffic on the easement remained vehicular in nature.
A similar example is seen in Debey v. Schlaefli: 56 Kan. App. 2d 813 (2019), where the easement was created based on implication by deed and prior use rather than by express language. Schlaefli claimed that the easement was extinguished because Debey was using the easement to access land not contemplated by the original conveyance, but the court disagreed. Neither party was able to find precedent for the theory that an implied easement could be extinguished by overburden.
Surveyors and other land use professionals may be asked to locate structures that could be evidence of overburden, or to document behaviors that may be contrary to the terms of the original easement. Knowledge of these issues better prepares professionals to provide relevant evidence as easement disputes continue to increase in frequency.
A version of this article originally appeared in the July 2020 issue of POB Magazine.