Easement and Trespass

An easement is a right to use some part of another person’s property for a particular purpose; for example, for use as a driveway or for installing and maintaining a water line.  Just because there is an easement, it does not shield the hold of the easement from an action for trespass if the easement holder misused, overburdened, or deviated from the easement.  The question in any action for trespass is whether there has been an intentional or negligent intrusion onto the property of another.  A negligent intrusion occurs when a person does not use reasonable care to prevent an unreasonable risk of harm to the legally protected interest of the person who holds the easement.

One example of a negligent intrusion/trespass case is Fradkin v. Northshore Utility District, 96 Wn. App. 118 (1999).  In Fradkin, Northshore Utility acquired a right to install a sewer line beneath Mr. Fradkin’s property.  Mr. Fradkin maintained his right to exclusive possession of the surface property.  Northshore’s easement over Mr. Fradkin’s property expressly required that the property be restored to its original pre-sewer condition.  After the sewer line was constructed, Mr. Fradkin noticed that several pre-existing drain pipes on his property had been cut off.  These pipes carried runoff from his house to a nearby creek.  While the drain pipes were fixed, Mr. Fradkin still noticed that his yard was wet along the sewer main.  Mr. Fradkin obtained an expert on drainage.  The expert wrote a report that stated Northshore failed in its attempt to restore Mr. Fradkin’s property to its pre-sewer condition.  Specifically, the way they installed the sewer line may have caused the ongoing water problem in his yard.  Since Mr. Fradkin owned the surface rights, and Northshore’s alleged negligent construction was affecting those rights, the Court of Appeals ruled he could sue the Utility for trespass to his property.

A claim of trespass must be brought within three years of the injury.  In a case of continuing trespass, “a suit for damages may be brought for any damages not recovered previously and occurring within the 3 year period preceding suit.”  A continuing trespass case is one where the trespass continues until the intruding thing is removed.  The type of periodic flooding due to defective construction of a drainage system such as Mr. Fradkin experienced is a recognized fact pattern in the category of continuing trespass cases.

The moral of the story is just because there is an easement doesn’t mean that the holder is shielded from a claim for trespass.  Make sure that any person holding an easement right uses that right correctly, and as provided for by the easement document.  If they are misusing the same, and affecting the remaining property, they may be liable for any damages their misuse causes.  One way to recover those damages is to use the Theory of Trespass.

Published May 2000

This article contains information of general interest, and is not intended to be, nor should it be relied upon as a substitute for specific legal advice.