A Survey of Colorado Easement Law-part Ii
| Publication year | 1993 |
| Pages | 1273 |
1993, June, Pg. 1273. A Survey of Colorado Easement Law-Part II
This article, which is the second in a two-part series on the law of easements in Colorado, describes the scope of use and the termination of easements. Part I appeared in the May 1993 issue of The Colorado Lawyer. It described types of easements, especially in terms of their origin of right.
In particular, easements by way of necessity and easements by preexisting use both arise by implication of the intent of a prior common owner of the dominant and servient estates. Nonetheless, easements by preexisting use are the more resilient of the two types, as this Part II demonstrates.
The rights of an easement holder are first defined by the nature and purpose of the easement.(fn1) That is, the range of permissible uses of an easement will be affected by the means through which the easement was created.(fn2) Therefore, the scope of use allowed within the easement varies, depending on whether the easement was created by (1) implied grant or reservation, (2) express grant or reservation or (3) prescription. This distinction in permissible uses may require litigants to choose to assert only one type of easement right when the facts would support more than a single theory.
Ways of Necessity. The scope of an easement by necessity should embrace all uses required or necessary for the complete and beneficial utilization of the land to which the easement is appurtenant.(fn3) While such a general rule may be drawn from the case law of other jurisdictions, it must be drawn in Colorado by extrapolation from the stated purpose of implied easements by way of necessity.
Colorado courts have held that easements by implication rest on an implied grant and that every grant carries with it, by implication, whatever is necessary to the enjoyment of the thing granted.(fn4) From this follows the conclusion that the grant of easement that is necessary for the use of the thing conveyed must be broad enough in its scope to allow such uses as will permit full enjoyment of the dominant estate.
Easements by Preexisting Use. As with easements by way of necessity, easements by preexisting use are, in part, based on the implied intention of the grantor who severed unity of title. However, unlike easements by way of necessity, the implication here is not as broad as that required or necessary for the complete and beneficial use of the land to which the easement is attached. Because an easement arising from a preexisting use presumes that the grantor intended that use to be permanent, the best argument is that the scope and use of the easement should be limited to the use that gave rise to the easement in the first instance.
Easements created by an express grant or reservation may be used for the purposes and to the extent specified in the grant. Of course, when the scope of use is clear, legal questions and lawsuits rarely arise. It is those cases where the grant is vague or ambiguous which present questions of scope.
Colorado courts have held that when the writing that expressly grants or reserves an easement does not limit the use to be made of the easement, it may be used for any purpose to which the dominant estate may then, or in the future, reasonably be devoted.(fn5) This rule is subject to the qualification that no use of the easement or right of way may be made if it imposes an additional burden on the servient estate that is different from the use that was established at the time the easement was created. Presumably, uses that differ from those established at the time when the easement was created, but which do not impose an additional burden on the...
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