§7.6 - Extent of an Easement

• Jurisdiction: Washington

§7.6 EXTENT OF AN EASEMENT

This section discusses the scope of express easements and of easements by prescription and implication, along with maintenance and repair,enforcement, and relocation of easements.

(1) Scope of an express easement

The scope of an express easement is determined by the terms of the instrument granting or reserving the easement, the extent of use, and the effect of changed circumstances.

(a) Terms of instruments

The rules of construction are applied to determine the intent of the parties in setting up an express easement. York v. Cooper, 60 Wn.2d 283, 373 P.2d 493 (1962). See POWELL ON REAL PROPERTY §4:34:14 (Michael Allan Wolf ed., 2000 and Supp. 2007), for an expanded discussion of rules of construction. If the easement grant or reservation is specific in its terms, the language is decisive of the extent of the easement. Decker v. State, 188 Wash. 222, 62 P.2d 35 (1936). If the easement is ambiguous or even silent on some points, the rules of construction call for examination of the situation of the property, the parties, and the surrounding circumstances. City of Seattle v. Nazarenus, 60 Wn.2d 657, 374 P.2d 1014 (1962). In most cases, if the easement grant is in general terms, the easement owner will be limited to use that is "reasonable" and that is least burdensome to the servient estate. Moe v. Cagle, 62 Wn.2d 935, 385 P.2d 56 (1963). For example, an easement "for road purposes" has been held not to create a right to install utilities over the easement. Castanza v. Wagner, 43 Wn.App. 770, 719 P.2d 949, review denied, 107 Wn.2d 1004 (1986). The holder of a railroad right-of-way was not allowed to install fiber optic cables beneath the easement because this use was not within the grant of the easement nor was it an incidental use that might have been permitted if connected to the permitted use (railroad right-of-way). Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Lines Ass'n, 156 Wn.2d 253, 126 P.3d 16 (2006).

(b) Extent of use

The use to which the easement is put subsequent to its grant is evidence of the intent of the parties in establishing it. Hanson v. Lee, 3 Wn.App. 461, 476 P.2d 550 (1970). The continual exercise of the easement right, presumably possible only through mutual consent of the parties, fixes the right-of-way and limits it to a particular course. Rhoades v. Barnes, 54 Wash. 145, 102 P. 884 (1909). The servient owner is entitled to impose reasonable restraints on use of the easement to avoid a burden on the servient estate greater than that originally contemplated. Green v. Lupo, 32 Wn.App. 318, 647 P.2d 51 (1982); Rupert v. Gunter, 31 Wn.App. 27, 640 P.2d 36 (1982).

(c) Effect of changed conditions

The law assumes that the parties to an easement have contemplated the natural development of the dominant estate and expected use of the easement under conditions different from those existing at the time of the conveyance. Logan v. Brodrick, 29 Wn.App. 796, 631 P.2d 429 (1981); RESTATEMENT (THIRD) OF PROPERTY §4.10 (2000). Therefore, unless the easement contains language specifically negating such an assumption, normal changes in the manner of use resulting from the passage of time and resulting in new needs and uses will not constitute a deviation from the original grant. Logan, 29 Wn.App. 796. The holder of an easement to maintain an irrigation ditch was allowed to increase the area used for the maintenance upon changes in the machinery that were used to maintain the ditch. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 73 P.3d 369 (2003). The change was from horse-drawn to different machines and each change required that more area be left clear adjacent to the ditch and not...