I Have a 25 Foot Wide Access Easement – Can I Build a 25 Foot Wide Driveway?

Stated another way, can I use my easement to the fullest extent possible, even over the objections of the owner of the property that the easement runs across?

In Oregon, one of the leading cases addressing this question is the case of Clark v. Kuhn, 171 Or.App. 29, 15 P.3d 37 (2000). In Clark, the defendant held a 25 foot wide easement for right-of-way purposes over plaintiff’s property. The easement was improved with a one-lane, gravel road that did not occupy the full width of the easement and defendant sought to pave and widen the road to two lanes. The proposed improvements would have required removing obstructions from the easement, including trees, large rocks, and a dirt berm that the property owner had placed there. In ruling on the defendant’s request, the court noted that while some changes were reasonably necessary to allow safe passage for vehicles, using the entire 25-foot easement for a paved, two-lane road, was not essential to the defendant’s ingress and egress to his property. Based on this finding, the court held that an easement holder can make only such use of an easement as is reasonably necessary to accomplish the purpose for which the easement is granted and the remaining dominion over the land upon which the easement lies continues with the property owner. As a result, the court concluded that the defendant had to leave most of the obstructions in place.

To summarize, even when an easement is described by metes and bounds, the physical location of the easement does not define the uses of the property by the property owner or easement holder, rather three overarching principles apply to expressly created easement rights in Oregon: (1) the terms of the granting instrument, if unambiguous, define the location and the intended purpose of the easement; (2) the easement holder’s right to use the easement is limited to what is reasonably necessary to accomplish the intended purpose of the easement; and (3) the property owner retains the right to use their property in ways that do not unreasonably interfere with the easement holder’s reasonably necessary use of the easement.

 

This blog post is offered for general information and educational purposes only. It is not offered as legal advice and does not constitute legal advice or opinion. Although I intend to keep this information current, I do not promise or guarantee that the information is correct, complete, or up-to date. You should not act or reply upon the information in this post without seeking the advice of an attorney.

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