[WSBARP] Duty to restore easement area - 2nd Call

[NC]

You may consider  Donner v. Blue, 347 P. 3d 881 - 2015
¶ 12 And according to a leading treatise on real property easements,
servient owners ordinarily owe no duty to the dominant owner to repair or
maintain the easement unless an agreement varies these duties:4

Servient owners, according to the New Restatement, have no duty to the
dominant owner to “repair or maintain the servient estate or the facilities
used in the enjoyment of the easement or profit.” Because the duty to
maintain an easement ordinarily rests on the easement owner, servient
owners had no duty to construct stairs to the beach for the benefit of a
dominant estate owner. 7 Thompson on Real Property: The Law of Easements §
60.05(a) (David A. Thomas ed., 2d ed.2006) (footnote omitted) (quoting
Restatement (Third) of Prop.: Servitudes § 4.13(3) (2000)). There is scant
Washington case law on point. Blue cites several cases from other states
discussing in general the lack of any duty on the servient estate owner to
remove or cut back vegetation that encroached onto an easement. Smith v.
Muellner, 283 Conn. 510, 932 A.2d 382 (2007); Schwartz v. Murphy, 74
Conn.App. 286, 812 A.2d 87 (2002); Suitts v. McMurtrey, 97 Idaho 416, 546
P.2d 62 (1976). The Donners properly concede that easement owners owe a
duty to maintain the easement benefitting their dominant estates.
Appellants' Reply Br. at 1. Nevertheless, the Donners argue with no
citation to authority that Forbus controls over easement law. We are
unaware of any case that extends the rule in Forbus to the easement
interest context. We decline to do so here.

On Fri, Sep 21, 2018 at 1:16 PM Craig Blackmon <
craig at lawofficeofcraigblackmon.com> wrote:

> Ah, I'll give it one more shot. I'd rather be lucky than good (at legal
> research). But if not, Monday I will be off to the law library.
>
> To recap: Does an easement impose a duty to restore the area if
> disturbance is required or its use, where it does not say so expressly?
>
> For example, a simple side sewer easement makes no mention of a duty to
> restore. The benefited estate disturbs the area in making a necessary
> repair, and refuses to restore the area to its prior condition. Does the
> burdened estate have a remedy?
>
> I just can't believe this has never come up. Thanks, and enjoy the
> weekend, all!!
>
> Craig
> Craig Blackmon, Attorney at Law
> Seattle Real Estate Lawyer <http://www.seattlepropertylawyer.com/>
> 92 Lenora St. (The Makers Space, a shared work environment)
> Seattle WA 98121
> Office/Cell: (206) 369-5949   Fax: (206) 770-7328
> @LawyerBroker <https://twitter.com/LawyerBroker>
> How to Buy Without an Agent
> <http://www.seattlepropertylawyer.com/blog?category=Buy+without+an+Agent>
>  | How to Sell FSBO
> <http://www.seattlepropertylawyer.com/blog?category=Sell+FSBO> | RE
> Glossary
> <http://www.seattlepropertylawyer.com/blog?category=Real+Estate+Glossary>
> CONFIDENTIALITY NOTICE: This communication is a private, confidential
> electronic communication encompassed by 18 USC 2510. It is for the sole use
> of the intended recipient and receipt by anyone other than the intended
> recipient does not constitute a loss of its confidential or privileged
> nature.  Any review or distribution by others is strictly prohibited. If
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>
> On Thu, Sep 20, 2018 at 3:26 PM Craig Blackmon <
> craig at lawofficeofcraigblackmon.com> wrote:
>
>> 'Mates, opposing counsel and I are having a friendly dispute about the
>> existence of a duty, if any, to restore an easement area, where disturbance
>> is required for its use. Assume the easement itself makes no mention of
>> such a duty. Does it exist?
>>
>> For example, a simple side sewer easement makes no mention of a duty to
>> restore. The benefitted estate disturbs the area in making a necessary
>> repair, and refuses to restore. Does the burdened estate have a remedy?
>>
>> Thoughts? Cites? The group wisdom is as always humbly appreciated.
>>
>> Craig
>> Craig Blackmon, Attorney at Law
>> Seattle Real Estate Lawyer <http://www.seattlepropertylawyer.com/>
>> 92 Lenora St. (The Makers Space, a shared work environment)
>> Seattle WA 98121
>> Office/Cell: (206) 369-5949   Fax: (206) 770-7328
>> @LawyerBroker <https://twitter.com/LawyerBroker>
>> How to Buy Without an Agent
>> <http://www.seattlepropertylawyer.com/blog?category=Buy+without+an+Agent>
>>  | How to Sell FSBO
>> <http://www.seattlepropertylawyer.com/blog?category=Sell+FSBO> | RE
>> Glossary
>> <http://www.seattlepropertylawyer.com/blog?category=Real+Estate+Glossary>
>> CONFIDENTIALITY NOTICE: This communication is a private, confidential
>> electronic communication encompassed by 18 USC 2510. It is for the sole use
>> of the intended recipient and receipt by anyone other than the intended
>> recipient does not constitute a loss of its confidential or privileged
>> nature.  Any review or distribution by others is strictly prohibited. If
>> you are not the intended recipient please inform the sender and destroy all
>> copies.
>>
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