INEXACTINESS
It’s been a long time, 42 years more of less since law school graduation. Ah, that was a time! For a sweet few months in the spring of 1977, I knew absolutely everything about the law. All anyone had to do was ask me (and sometimes they didn’t even need to ask: I’d just volunteer).
Alas, by the middle of June, a week after commencement, I was cramming for the bar exam and finding out I did not know so much after all. It’s been all downhill since then. The longer I go, the more I’m shocked to discover what I either no longer know or never knew to begin with. Beyond what lawyers should know, many clients are shocked that learned counsel aren’t as learned as clients imagine lawyers should be, such as being to recite all 50 titles (plus appendices) of the United States Code or recall the dissent in a case decided in Pocatello, Idaho, 42 years ago.
Lawyers get called on all the time to be knowledgeable and thorough in many different areas of the law. That’s why there are law books. And (because we’re two decades into the 21st Century) databases. Today’s case reminds us why it’s a good idea for all lawyers, including the most seasoned practitioners, to look things up and review the basics whenever he or she tackles some task not performed that often.
Richard Stafursky and his siblings were squabbling over inherited land. They settled it by Richard taking one chunk of land, and his brother and sister together owning an adjacent one. Richard gave his siblings an easement to cut grass and brush on a 3-acre portion of his land, provided the brush they cut was under 2” in diameter. He had a lawyer draft the easement into the deed, and then he conveyed his land — including the easement — to some tree-hugging nonprofit organization of which he was chairman.
Then the battle began. The tree-hugging group wanted to return the whole tract to nature and told Richard’s siblings they couldn’t cut down any trees when they cut brush. What’s more, the group transplanted native trees in the meadow that was subject to the easement. Finally, the nonprofit sued to get the court to issue a ruling as to what the easement meant.
How’d the lawyer screw it up? Easy. He thought he remembered how to write an easement. Easy-peasy, right? Write down the restriction, what the subservient estate holder was allowed to do or had to put up with. Then bill the client. And take a long lunch.
Had counsel refreshed his recollection of easement law, he would have recalled the nuance. Easements are driven by purpose. That’s black-letter law in Massachusetts. And nothing in the ‘cut no 2″-plus brush’ easement language written into the deed suggested a purpose.
No one seemed to be able to agree on why Richard had given the easement to his brother and sister. Richard was hauled into court as a witness, and claimed that the easement was just an artifice to help sell the property. The trial court rejected his explanation as meaningless at best and a fraud at worst. Then Richard took a different tack, claiming there was no purpose to the easement whatsoever. The brother and sister said the purpose was to preserve their view. The lower court had to find some purpose in order to enforce the easement, and thus decided the brother and sister’s explanation was the one that made the most sense.
The Massachusetts Court of Appeals upheld the decision, having no problem with the notion that the easement was a “view easement” (despite the apparent fact that Richard, who was trying to stick it to his siblings, denied the easement had a purpose at all). Clearly, the easement’s lack of explanation as to purpose and its unusual provisions about brush under 2” in diameter left the court in a position of having to provide much more guidance and interpretation than should have been necessary. In fact, had the easement been properly drafted, there would probably have been no lawsuit to begin with (assuming, of course, Richard had not wanted to stir things up in some other mischievous manner).
As the lower court quite rightly noted, all of the problems could have been avoided if the lawyer drafting the easement had shown as much care in stating the reason for the easement as he did in describing the limitations on what could be done.
World Species List-Natural Features Registry Institute v. Reading, 75 Mass.App.Ct. 302, 913 N.E.2d 925 (Ct.App. Mass. 2009) Richard Stafursky, the previous owner of property that included a 3-acre tract, granted his brother-in-law and sister, Jim and Sandra Reading — the owners of a next-door parcel — an easement permitting them “to enter on to the [three-acre] parcel [subject to the easement] for the sole purpose of cutting grass and brush no larger than two (2) inches in diameter when measured one (1) foot from the ground, excluding any cutting of grass and brush on wooden land as shown on said survey of the three-acre easement.” At the time the easement was granted, the 3-acre parcel consisted of two open meadows with a wooded area that was not to be cut in the middle. Richard deeded his land to the plaintiff Institute, a nature conservancy trust that he founded, which intended the return the whole large tract to its natural conditions.
Shortly thereafter, the Institute demanded that the Readings give advance notice before exercising the easement, that the neighbors not cut any trees (even those within the size limitation) and that the neighbors not remove any trees the Institute had transplanted to the area. The Institute contended that the sole purpose of the easement was to enable Richard to sell his property. The neighbors replied that the purpose of the easement was to enhance their view, and that they had acted within their rights as beneficiaries of the easement by cutting within the cutting area to maintain that view, and that the plaintiff does not have the right to transplant trees or other vegetation into the cutting area.
Held: The easement was a “view easement” and the neighbors had the right to exercise it. The Court said that “we do not consider it dispositive that the easement language here does not explicitly state that the purpose of the right to cut vegetation is to permit the benefitted landowner to enjoy the view. The purpose and effect of the view easements are not simply to limit the uses that the plaintiffs can make of their own property. Rather, the view easements here have taken on the defining characteristics of an affirmative easement by conferring on the defendants the right to enter and use land in the possession of another, and we conclude that this fact is dispositive.”
The Court noted that the limitation on cutting only grass and brush that was less than two inches in diameter was consistent with the circumstances of the grant of the easement, “representing a compromise between the desired uses of the easement property – as an open meadow for a view on the one hand and the potential restoration to a natural landscape on the other.”
The Court put a stop to World Species’ attempts to regulate the easement. First, the Court held that word ” brush” in the easement language included small trees. World Species could not stop the cutting of trees, nor could it defeat the easement by transplanting trees with a trunk larger than 2 inches. The Court said to allow this “conduct is inconsistent with Readings’ view easement. The easement area would become reforested if World Species were permitted to transplant trees of that size onto the easement area as such trees would exceed the dimensions of vegetation that [the Readings were] allowed to cut, thereby creating a condition that would eventually cause the view to disappear.”
The Court did agree with the Land Court judge that the easement grant had to be exercised regularly. That is, the Court said, the “Readings must use it or lose it. If [the Readings] do not regularly cut vegetation, small trees existing on the easement area will grow until they exceed two inches in diameter when measured one foot above the ground and he will no longer be permitted to cut such vegetation. Over time, the land will become reforested and the Readings will lose the view benefit… derived from the easement.”
– Tom Root
Tree and Neighbor Law For Homeowners and Professionals 