Fixing the Location of a Floating Easement

Fixing the Location of a Floating Easement

An express easement is the written form of a nonpossessory right to use another party’s real property. (This is unique compared to prescriptive, necessary, and implied easements which form by the contextual use of property or by the relative ownership positions of the property owners.) For express easements to be valid they typically must describe the portion of the burdened property with reasonable certainty. For instance, it is typical to see an easement for ingress and egress to reserve the “northern 10 feet of Lot X for a driveway for ingress/egress for Lot Y.” 

But what if the dominant estate holder needs an easement, but does not yet know where it will be? Parties can still form easements even when the exact location has not been determined. An express easement in this form is called a “floating” or “blanket” easement. Floating easements are most commonly used when planning for the installation of utilities. For instance, a utility company may need to lay a pipe across a parcel of land, but does not yet know the trajectory of that pipe. Thus, a company will seek a floating easement to assure that they have the easement right to traverse the property at some to-be-determined position in the future.

These floating easement rights are not open-ended.  Courts and municipalities typically recognize that this type of easement loses its floating nature contingent to acts by the respective parties. Once the dominant estate holder establishes the easement on the ground (for instance, by installing the utility line or constructing the roadway), the floating nature of the easement dissipates. Town Of Bedford v. Cerasuolo, 62 Mass. App. Ct. 73, 818 N.E.2d 561 (2004), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance]. In fact, “the location and mode of use of an easement may be limited, subsequent to the initial grant, by the grantee's use of a particular way and the grantor's acquiescence in that use. Cullison et al v. Hotel Seaside, Inc., 126 Or. 18, 23, 268 P. 758 (1928), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance].

“After the location of the right of way which has been granted in general terms has been defined and fixed by the owners of the dominant and servient tenements by user in a particular location over a long period of time, it becomes as definitely established as if the grant or reservation had so located it by metes and bounds, and the location of the right of way as thus defined can only be changed by agreement of the owners of the dominant and servient tenements.” USA Cartage Leasing, LLC v. Baer, 202 Md. App. 138, 32 A.3d 88 (2011), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance].

Besides the simple use (or acquiescence) of the property to set the location of the easement, property owners burdened by the floating easement are typically afforded a say in locating these easements on their property. For instance, in several cases regarding the installation of natural gas pipelines, courts recognized the servient estate holders’ right to help determine the location of the floating easement.  Smith v. King, 27 Wn. App. 869, 871, 620 P.2d 542, 543, 24 A.L.R.4th 1049 (Div. 1 1980), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance].

The above principals may work for locating the easement, but how do courts deal with the size and scope of the easement once it is established? If an easement lacks such definitions, the doctrine of “reasonable enjoyment” will typically apply. “Under the doctrine of reasonable enjoyment, the width is restricted to that which is reasonably necessary and convenient to effectuate the original purpose for granting the easement.” Sunnyside Valley Irr. Dist. v. Dickie, 149 Wash. 2d 873, 880, 73 P.3d 369, 372 (2003), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance]. Once the location, size, and scope of the easement are determined, the only method to change the easement is by an agreement between “the owners of the dominant and servient tenements.”  USA Cartage Leasing, LLC v. Baer, 202 Md. App. 138, 32 A.3d 88 (2011).

Robert Dickson is a practicing attorney and adjunct professor at the Seattle University School of Law, where he teaches real estate litigation. He serves as the co-editor and contributing author for the LexisNexis Practice Guide: Washington Real Estate Litigation. Mr. Dickson is also an author for the Washington Lawyers Practice Manual, where he contributes to the Real Property Practice, and Land Use and Environmental Law chapters. For more information about real estate law issues, please visit the Washington Real Estate Law Blog or his firm’s real estate law page.