• May 20, 2015

Apitz v HopkinsHopkins buys Lot 3, which has an easement across Apitz’s property, Lot 2, so Hopkins can access the “ROAD.”

Hopkins fences off the easement over Apitz’s property and, essentially, bars Apitz’s access to part of Apitz’s own property (the part over which Hopkins has an easement). (The diagram above is illustrational. I have no idea where the easement goes on the Apitz’s property but presumably it goes along an outside edge and does not split the Apitz property down the middle.)

In my view, that seems not very neighborly of Hopkins but what do I know?

Putting that aside, Hopkins relied on the fact that the easement they had was from an agreement that give them “an exclusive easement for ingress, egress and utility purposes.” So, Hopkins argued, the easement gave Hopkins the right to exclude Apitzes from the Apitz’s land over which the Hopkins had “an exclusive easement.”

But, as the Court of Appeals held this week in a published opinion:

Generally, the grant of an easement over land does not preclude the grantor from using the land in a manner not unreasonably interfering with the special use for which the easement was acquired.

“Exclusive easement” could mean a variety of things, the Court held, and remanded the case to the District Court for further fact-finding. The District Court had held that the term “exclusive” was unambiguous and that it gave Hopkins the right to exclude Apitz, so that decision has been reversed. Congratulations to the Apitzes and their lawyer, Matthew H. Hanka, Fryberger, Buchanan, Smith & Frederick, P.A.

A final note: I wonder when there will be more liberal use of diagrams by courts as the ease of including diagrams increases with word processing and image-making. For many people (including me), a picture, particularly in issues of real property disputes, can be so much more quickly understood than the same information provided in words.

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