Damages as the Appropriate Remedy for 'Abuse' of an Easement: Moving Toward Consistency, Efficiency, and Fairness in Property Law

Abstract

The current majority position - what I will label the American rule - is that the proper remedy for 'abuse' or 'misuse' of an easement is an injunction. In this Article, I argue that courts should move away from this position and adopt instead a rule permitting courts to award damages when two conditions are met: (1) when the dominant tenant's servicing of nondominant land does not pose an unreasonable burden on the servient estate; and (2) when the cost to the dominant tenant of ceasing his servicing of nondominant land is substantially greater than the benefit to the servient tenant.

I call this the Brown rule after the Washington Supreme Court case, Brown v. Voss, where it found its most prominent statement. A remedy of damages instead of an injunction, under these circumstances, fits well with earlier case law, builds on courts' equitable authority and concomitant case law, accords with the broader movement in property law from property to contract concepts and remedies, and is more efficient and fair.

I first review the history of easements and argue that, at least in the United States, the common law rule was that courts would enjoin a dominant tenant's use of an easement to service nondominant land. Only in the relatively rare circumstance where legitimate use of a dominant estate could not be separated from abuse of the easement, courts would permanently enjoin - in effect, extinguish - use of the easement. The common law did not authorize courts to extinguish an easement in the normal course, simply because of its abuse by the dominant estate holder.

I will show, however, that there was much confusion among courts, counsel, and scholars on what the proper remedy was. This resulted from the continued influence of English law in this area. Consequently, I will label the remedy of an injunction for abuse of an easement the American rule, and the rule that requires forfeiture for abuse of an easement I will label the English rule.

Recently, the American rule has been challenged. Some courts have ruled that, instead, the proper remedy under certain conditions is damages. I argue below that this movement in the courts, exemplified by Brown, is consistent with and further supports claims that property law has been moving away from property-based concepts and remedies and toward contract-based concepts and remedies. I will also show that there is in the United States a broader tradition than is commonly realized of courts employing their equitable discretion to grant damages instead of injunctive relief. Lastly, I will argue that damages is more efficient and fair than injunctive relief, at least under the two conditions I outlined above.

Keywords: easement, servitude, remedy, property, equity, efficiency, justice