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Carrollsburg v. Anderson2/14/2002
ent.").
In contrast to the Maryland approach, New York does not require the consent of both the servient and dominant estate before an easement may be modified. Rather, New York follows an approach based upon a tentative draft of a restatement of the law of property (servitudes) rule:
In the absence of a demonstrated intent to provide otherwise, a landowner, consonant with the beneficial use and development of its property, can move right of way, so long as the landowner bears the expense of the relocation, and so long as the change does not frustrate the parties' intent or object in creating the right of way, does not increase the burden on the easement holder, and does not significantly lessen the utility of the right of way. Lewis v. Young, 705 N.E.2d 649, 653-54 (N.Y. 1998) (referencing Restatement [Third] of Property [Servitudes], Tentative Draft No. 4, § 4.8 ). See also Marek v. Woodcock, 716 N.Y.S.2d 812, 813 (N.Y. App. Div. 2000) ("alteration . . . made solely for the purpose of making access more difficult . . . substantially interfered with . . . reasonable use and enjoyment of the right-of-way in light of the convenience to which [defendants] had become accustomed. . . .").
Another test has been applied by the Superior Court of New Jersey, Appellate Division, which "h ld that a court may compel relocation of an easement to advance the interests of justice where the modification is minor and the parties' essential rights are fully preserved." Kline v. Bernardsville Ass'n, Inc., 631 A.2d 1263, 1267 (N.J. Super. Ct. App. Div. 1993).
The tentative restatement draft rule on which the opinion in Lewis, supra, was based in part, has been adopted as § 4.8 of the Restatement of the Law (Third) Property (Servitudes) (2000). The introductory note to Chapter 4 - Interpretation of Servitudes, states:
Section 4.8 (3) departs from the standard common-law rule to adopt the civil-law rule on relocation of easements. If necessary to permit normal use or development of the servient estate, and if changes can be made without any loss of utility to the easement owner, the servient-estate owner is entitled to make reasonable changes in the location or dimensions of an easement. The rule should lead to an increase in the aggregate utility of easement and servient estate, and complements the rule stated in § 4.10 that the easement owner may change the use of the servient estate over time to take advantage of developments in technology and to accommodate normal development of the dominant estate. Id., ch. 4 at 496.
In a case involving the relocation of a ditch, the Supreme Court of Colorado affirmed a finding of trespass due to the alteration of an easement, but applied § 4.8 (3) of the Restatement in declaring that:
If a burdened owner seeks to move or alter a ditch easement and the benefitted owner refuses to consent, then the burdened owner may seek a declaratory determination from a court that the alteration does not damage the benefitted owner(s) in accordance with the Restatement test. Roaring Fork Club v. St. Jude's Co., No. 00SC372, 2001 Colo. LEXIS 954, at *28 (Colo. Nov. 19, 2001).
The court went on to hold, "that the owner of property burdened by a ditch easement has no right to move or alter the easement without consent of the benefitted owner unless he first obtains a declaration of a court that such alterations will cause no damage to the benefitted owner." Id. at *33. See also Note, Balancing the Equities: Is Missouri Adopting a Progressive Rule for Relocation of Easements?, 61 Mo. L. Rev. 1039 (1996).
In light of the foregoing, we conclude that under either the majority rule or that set fort
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