Case of the Day – Tuesday, October 9, 2018

DIAMONDS ARE FOREVER – EASEMENTS, NOT NECESSARILY…

Easements are fairly easy to grant. A blank piece of paper, a wild notion that some right should be given to your neighbor, a notary public to make it all legal, and maybe a fifth of good whisky to make you sufficiently reckless, and you can blot your title for a good long time.

How long, you ask? How about “perpetually,” the answer usually goes. But not always. Normally, one would hope that the easement was drafted precisely enough to specify its duration, or at least leave the intent of the grantor clear. But not always.

Young law students learn quickly enough in contract law that where a time for performance is not specified, a “reasonable” period of time is assumed. A “reasonable time” varies according to subject. If I promise the neighbor kid I will pay $20.00 to have my lawn cut, the little layabout cannot wait two months before showing up with the mower and expect the deal to still apply. On the other hand, if I agree with a neighbor that if he plants an apple tree on my land for me, he can have half of the apples, he can wait 15 years before showing up with a basket, and I have no beef with him.

So it is with easements. In today’s case, neighbors granted mutual easements a half century before, relating to maintain a fence, letting the one cross the property of the other, and letting one party cut timber on the other’s land. No term was specified. When the fence maintenance and property crossing continued for 50 years, the court had no problem. But the timber harvest was clearly, according to the court, intended to be accomplished in the short term. The holder of the timber harvesting right could not wait two score and ten before arriving with his saw.

You snooze, you lose.

Lewison v. Axtell, 195 N.W. 622 (Supreme Court, Iowa, 1923). Ollie Lewison and Oscar Axtell owned tracts of land on both sides of the Iowa River. The prior owners of both properties had signed a contract many years before, in fact 20 years before the predecessors sold their land to Ollie and Oscar, that granted easements for construction and maintenance of a fence along Ollie Lewison’s tract, as well as a right for Oscar Axtell to pass through Lewison’s property. In exchange for the fence, the prior owner of Oscar Axtell’s tract was given the right to trim timber and brush from certain areas of the Ollie Lewison’s property.

When each of Ollie and Oscar took possession of his respective tract, no mention of the easement contract was made in either deed.

The fence remained in place for many years, during which time Ollie Lewison had allowed Oscar Axtell to cross his property. However, when Oscar Axtell decided to remove timber from Ollie Lewison’s property, Ollie sued to prevent Oscar from doing so, claiming that too much time had elapsed for him to exercise that right. The trial court found in favor of Ollie.

Oscar Axtell appealed.

Held: Oscar was not permitted to cut any timber on Ollie’s land.

The Supreme Court of Iowa defined the sole issue as being “whether the [defendant] now has a right to remove timber or brush from [the plaintiff’s property].” In Iowa, the Court said, “contracts for the purchase of growing trees must remove the same within the time specified, and, if the contract is silent as to time, then within a reasonable time after the contract becomes effective.” In this case, the Court found that Oscar Axtell was required to have removed the trees within a reasonable time, and – given that he had been in possession of his tract for more than 30 years without doing so – his attempt to do so was no longer reasonable.

The Supreme Court conceded that the question could have gone either way, but its conclusion was buttressed by the fact that some rights in the contract – such as the right to build a fence and for Oscar Axtell to pass across Lewison’s land – were described as “perpetual,” but the right to cut the timber was devoid of any language suggesting the original parties had foreseen, when signing the contract a half century earlier, that the timber harvesting would extend into perpetuity as well.

– Tom Root

TNLBGray

 

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