The Trap of the Oral “Easement”

November 5, 2018 § Leave a comment

The Stewarts and the Smiths owned adjoining lots on a lake where they and others enjoyed water skiing. They and some other neighbors deepened a drainage ditch for lake access, and built a boat ramp and retaining walls. The retaining walls were on both properties, but the boat ramp was almost entirely on the Smiths’ lot. In exchange for sharing the cost of the project, the Smiths gave permission for all participants to use the ramp freely, which they did. The offer and agreement were oral and never reduced to writing or recorded.

In 1995, Girani acquired the Stewarts’ lots, and he made further improvements and repairs to the boat ramp. He continued to use the ramp at will, and did not make any effort to acquire a written, recorded easement.

In 2006, Lovorn acquired the Smiths’ lots and blocked the boat ramp, insisting that the others get permission before using it.

At that point, Girani filed suit in chancery court. In the absence of a written, recorded easement, he urged the chancellor to find that the parties’ actions had created an “easement by estoppel.” Or, he suggested, the chancellor could find that he has an “irrevocable license” to use the ramp, based on the consideration of his contribution to the boat ramp and channel. The chancellor denied any relief, and Girani appealed.

In Girani v. Lovorn, decided October 9, 2018, the COA affirmed, with Judge Tindell writing the unanimous opinion:

¶9. Although Girani acknowledges Mississippi caselaw generally fails to recognize either easements by estoppel or irrevocable licenses, he asserts equity allows courts to employ such remedies to prevent injustice. Contending the facts of this case support judicial recognition that he has either an easement by estoppel or an irrevocable license to access Lovorn’s boat ramp, Girani asks this Court to modify or extend existing Mississippi caselaw to provide for such remedies.

¶10. “[A]n easement is an interest in land subject to the statute of frauds, and any agreement to convey or transfer an easement must comply with the statute of frauds, and be conveyed by written deed.” 37 C.J.S. Statute of Frauds § 66 (2017). Where recognized, however, an easement by estoppel provides an exception to the statutes imposing the requirement of a writing. Id. at § 67. The Mississippi Supreme Court has defined easement by estoppel to mean:

[A]n easement which is created when a landlord voluntarily imposes an apparent servitude on his property and another person, acting reasonably, believes that the servitude is permanent and in reliance upon that belief does something that he would not have otherwise or refrains from doing something that he would have done otherwise.

Gulf Park Water Co. v. First Ocean Springs Dev. Co., 530 So. 2d 1325, 1332 (Miss. 1988) (quoting United States v. Thompson, 272 F. Supp. 774, 784 (E.D. Ark. 1967)). In contrast to an easement, a license “confers no interest in the land but merely gives one the authority to do a particular act on another’s land . . . and . . . may be created orally.” 37 C.J.S. Statute of Frauds § 66. “However, it . . . has been said that an irrevocable license is . . . an easement rather than a license.” 53 C.J.S. Licenses § 147 (2017).

¶11. In the present case, Girani admits no written instrument ever existed to grant him permission to use the boat ramp on Lovorn’s land. He therefore relies solely on the remedies of easement by estoppel and irrevocable license for his requested relief. Recognizing that our supreme court has previously looked unfavorably on both irrevocable licenses and easements by estoppel, Girani asks this Court to extend or modify existing Mississippi caselaw on this issue. See Gulf Park Water Co., 530 So. 2d at 1335 (providing that Mississippi “does not recognize ‘irrevocable licenses’”); Belzoni Oil Co. v. Yazoo & Miss. Valley R.R. Co., 94 Miss. 58, 58, 47 So. 468, 472-73 (1908) (refusing to change licenses into an irrevocable right on the basis of equitable estoppel); Beck v. New Orleans & Tex. Ry. Co., 65 Miss. 172, 176, 3 So. 252, 252 (1887) (declining to recognize irrevocable licenses). Upon review, we decline to do so. See Cahn v. Copac Inc., 198 So. 3d 347, 358 (¶35) (Miss. Ct. App. 2015) (“[T]his Court does not have the authority to overrule or ignore supreme court precedent.”). We therefore find this assignment of error lacks merit.

It’s not probable that the MSSC will grant cert and change the law of easement by estoppel or irrevocable license in Mississippi, but stranger things have happened, and I give credit to Girani’s lawyers for pursuing what appears to be the only possible avenue to get their client the relief he is seeking.

Any lawyer who has been in practice a while will recognize this kind of scenario. The client and his neighbors fall into a particular way of doing things until property changes hands and the new owner balks at continuing the longstanding custom. This could have been fixed years ago with a written and recorded easement, but everyone was comfortable with their cozy arrangement so why inject a bunch of lawyers into the picture? Only thing is that the lawyers get involved eventually anyway. “Pay me now or pay me later.”

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