[WSBARP] Logging trees in easement

[Paul Neumiller]

Carmen, this is an interesting post and certainly contra to my understanding of easement law in WA.  You say that “I think the servient property owner [is] obligated to pay removal fees as they were responsible for those…”  What is the legal basis for your understanding that the servient tenement is responsible for a single dime of the installation costs of the dominant tenement using the easement (assuming the servient tenement is not also using the easement area)?   I’m afraid that “neighborly accommodation” of an owner granting an easement to a neighbor flies out the window if the servient neighbor is now “obligated” to contribute to the costs of installation.   Living in a rural community, these issues come up all of the time with landlocked parcels.


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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Carmen Rowe
Sent: Tuesday, March 5, 2019 12:22 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Logging trees in easement

In responding to Bryce's query about an easement holder who logged the trees necessary to use the easement -

I have a little different take than some of the comments.

First, I agree with those that said the timber trespass statute is inapplicable, as there is likely "lawful authority". The easement holder has the right to have the servient property owner remove anything that interferes with the use of the easement.

Second, I do think the better practice would have been for the easement holder to ask the servient property owner to remove the trees not "self-help".

That said - I diverge from some prior comments in that I think the servient property owner obligated to pay removal fees as they were responsible for those - they had to remove the trees upon request so long as reasonably necessary for dominant easement holder to exercise easement rights. But give the servient owner the trees themselves, or if already sold, the proceeds, as they were his/her trees.

In other words: I think the easement holder essentially stepped into the shoes of exercising the servient property owner's obligations, and the servient owner obligated to cover the costs of exercising those obligations as he/she would have born them to begin with if they had done it themselves (as they would have had to do); but also entitled to what was theirs (the trees). Put another way: they are obligated/entitled to no more and no less than if they had done the job themselves.

That is of course limited to the scenario Bryce confirmed, that no more trees were taken down than necessary to exercise easement rights. Anything beyond that would be a different analysis.


Carmen Rowe, Attorney/Owner
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