[WSBARP] Trimming Tree Branches Growing into Easement Area

[Eric Nelsen]

WSBA Real Property Deskbook Vols. 1&2, Ch. 7.6:

An owner of an easement by prescription has the privilege to make effective the enjoyment of the easement through acts that are not part of the use interest obtained through prescription. RESTATEMENT (THIRD) OF PROPERTY §410 (2000). The easement owner is privileged to repair and improve the right-of-way even though he or she did not take such action during the prescriptive period and, therefore, under a strict definition of such an easement, did not acquire the right to repair and improve. Id.

The privilege to make effective the enjoyment is subject to the limitation that the burden on the servient easement cannot be "unreasonably increased." Martin v. Norris Pub. Power Dist., 175 Neb. 815, 124 N.W.2d 221 (1963). An "unreasonable increase" is defined in the RESTATEMENT as an increase in use for which one could reasonably assume the owner of the servient estate would have interrupted the adverse use had it occurred during the prescriptive period. RESTATEMENT (THIRD) OF PROPERTY §4.10 cmt. d (2000).

There are two determinations made regarding such privileged use: first, whether the repair or improvement is necessary for effective enjoyment and second, whether such action unreasonably burdens the servient estate. Mumrow v. Riddle, 67 Mich.App. 693, 242 N.W.2d 489 (1976). Because "improvements" in an easement are generally not contemplated by the parties (unlike repairs to keep an easement in the shape in which it was obtained), actions by the easement owner that constitute improvements are scrutinized more closely by the courts to ensure that the acts meet this two-pronged test. Id.

Responsibility for the maintenance and repair of an easement to keep it in proper condition lies with the owner of the easement. 28A C.J.S. Easements §226; 25 AM. JUR. 2D Easements §82; see also Dreger v. Sullivan, 46 Wn.2d 36, 278 P.2d 647 (1955). Maintenance and repair of the easement is allowed to correct new conditions interfering with the use and enjoyment of the easement and thus render it useful under the new conditions. Hughes v. Boyer, 5 Wn.2d 81, 104 P.2d 760 (1940).

The owner of the servient estate is generally under no obligation to make repairs on an easement. However, the owner of the servient estate may be required to pay for alterations or repairs to the easement that are made necessary by the use to which he or she is putting the premises. 28A C.J.S. Easements §220; 25 AM. JUR. 2D Easements §82. There may also be instances in which the servient owner has the right to maintain, improve, or repair an easement at the expense of the dominant owner, such as when the grant so provides or when the dominant and servient owners both will derive a benefit from the improvement. D.E. Evins, Annotation, Right of Servient Owner to Maintain, Improve, or Repair Easement of Way at Expense of Dominant Owner, 20 A.L.R. 3D 1026 (1968). For a discussion of the issues involved in ownership of improvements annexed to land by one who is not the owner, see 5 AMERICAN LAW OF PROPERTY §19 (A. James Casner ed., 1952).

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Jeff at bellanddavispllc.com
Sent: Tuesday, April 30, 2024 2:53 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Trimming Tree Branches Growing into Easement Area

Listmates:

4 lots share a 30' ingress/egress easement with the current driveway approximately 12 - 15 feet wide down the middle of easement area.  One lot owners have allowed their tree branches to grow into the easement area which are now affecting access by clients truck,  delivery vehicles; and will certainly cause problems for emergency vehicles.  The same lot owners have built a fence into the easement area, but that's for another time.  I know you can trim branches that cross over your property line.  However, does the same rule apply to easement area?  The three other owners want the limbs trimmed back to the fence.  However, the lot owners, with the trees, are very volatile, and hostile.  They have guns.  What is the basic rule about this?

Jeff Davis

W. Jeff Davis
BELL & DAVIS PLLC
Attorneys at Law
P.O. Box 510
720 E. Washington Street, Suite 105
Sequim WA 98382
Phone: (360) 683.1129
Fax: (360) 683.1258
email: jeff at bellanddavispllc.com<mailto:jeff at bellanddavispllc.com>
www.bellanddavispllc.com<http://www.bellanddavispllc.com/>

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