In this column I often write about rights of way and easements. The reason is that my land-use legal practice involves rights of way and easements on an almost daily basis. Sometimes, but certainly not always, a right of way and an easement are the same thing. This month I want to discuss the rule of “reasonable use” and how it is applied by courts to certain rights of way or easements. For this hypothetical, the terms “right of way” and “easement” are interchangeable, but keep in mind that I am not talking about conservation easements.
Let’s say that you own property across the street from a lake. Your lakefront neighbor across the street owns the entire shorefront. You and your neighbor are good friends after having been neighbors for 30 years. Thirty years ago, soon after you each purchased your properties, your neighbor conveyed to you a deeded easement over a 15-foot portion of her waterfront. The 15-foot area is a sandy beach.
The deed granting you the easement says nothing about the beach or any other specific use. Rather, it just describes a “right of way over the property.” Fortunately, the right of way runs with the land and remains in existence regardless of who owns either lot. Unfortunately, your neighbor moved to Florida last year, and your new neighbors don’t want you to use the beach anymore.
Last winter, your new neighbors had their lawyer send you a letter telling you that your easement does not include the right to use the beach, just the right to cross the beach to access the water. You ignored the letter and continued to use the beach as you have for thirty years, including sunbathing, your grandchildren building sand castles, evening cocktails with friends on beach chairs, and, of course, a lot of swimming by everybody.
At the end of the summer, you were served with a superior court lawsuit filed by your new neighbors seeking to stop your use of the beach. The question for the judge is whether the scope of your right of way includes the right to use the beach.
When a deeded right of way specifically sets out the uses to which the right of way may be put, then the court will ordinarily only look at the language of the deed to determine the scope of the right of way. However, if the language of your deed is not clear about the specific allowed uses, the court will apply the rule of reasonable use. This is not a complicated concept. In light of the intentions of the original parties, circumstances existing at the time the easement was conveyed, circumstances since the easement was conveyed, the actions of the parties over the years, and the relative advantages and disadvantages to the two properties if the beach use is allowed, are your beach activities a reasonable use of this easement? To determine these facts, the court will consider witness testimony, photographs, and other relevant evidence.
In this case, your beach use is probably a reasonable use of the right of way. The fact that your use of the beach last summer was the same as it has been for 30 years since the easement was granted helps you. Also helpful is the fact that for thirty years your neighbor never objected to any of your uses of the beach even though he was well-aware of your use. That your neighboring property includes 500 feet of lake frontage and includes other beach areas is also helpful because your use does not deprive your neighbor of a beach. Given these, and other, facts, it seems that the judge would agree that your beach use is a reasonable use of the right of way.
In addition to being an owner at BCM, Jason is vice-chair of the New Hampshire Bar Association’s Ethics Committee and lives in Peterborough.
This article was originally published in The Monadnock Ledger-Transcript.