**This article is not a substitute for the advice of an attorney.**

Two weeks ago, the Beaumont Court of Appeals issued a decision in Emmons v. Badanfriouz, a case involving a dispute between neighbors about whether a gate could be erected by one neighbor across an easement.  This case provides insight for anyone entering into an express roadway easement as to key language that should be considered with regard to whether a gate may be built across the proposed easement.

Background

An express easement was granted by the Emmons’ predecessors in interest to the Bandafriouz’ predecessors in interest in 1978, which provided for “the non-exclusive free and uninterrupted use, liberty and privilege of passage at all time for ingress and egress, both pedestrian and vehicular, together with the right to install and maintain water, power, telephone and other utilities, in, along, upon and across that certain tract or parcel of land…”

The current landowners, the Emmons family, built a gate across the easement.  This caused a dispute between the Emmons family and the Bandafriouz family that owns the easement.  The Bandafriouz family filed suit against the Emmons, alleging that the gate violated the express easement’s grant of “free and uninterrupted use, liberty and privilege of passage at all time for ingress and egress” and seeking that the court require the gate to be torn down.

General Law

An express easement is governed by the principles of contract law.  This means that the court first determined whether the wording of an agreement was ambiguous.  If the language is not ambiguous, then the court simply determines the parties’ intent expressed in the document as a matter of law.  Only if the document is found ambiguous will the court consider other “extrinsic” evidence beyond the four corners of the document.

The Decision

The trial court held that the easement language requiring “non-exclusive free and uninterrupted” passage prohibits the construction or maintenance of fences or gates across the easement.  The Beaumont Court of Appeals affirmed.

In its opinion, the Court of Appeals found that the express easement language was unambiguous.  “The easement language here does not merely grant rights for ingress and egress to the dominate estate but also specifically provides for the ‘nonexclusive free and uninterrupted use’ of the easement.  The term ‘free’ includes the meaning ‘not obstructed or impeded….’  The term ‘uninterrupted’ means ‘continuous’ which means ‘stretching on without break….’  From the easement’s language, it is clear that he grantors of the easement intended an unobstructed access.”

In reaching this decision, the Court of Appeals distinguished a prior case from the First Court of Appeals, Barrow v. Pickett.  In that case, an express easement provided for “a perpetual, non-exclusive easement for pedestrian and vehicular ingress, egress, and access on, over, and across the Easement Tract.”  The First Court of Appeals found that Mr. Barrow was permitted to construct a gate on the property because the easement did not grant Mr. Pickett the right to use the property “free and uninterrupted by gates” but only the right to “ingress and egress.”  The Barrow court refused to read additional language into the easement that the parties failed to include.

In comparing the instant case and the Barrow case, the Court of Appeals pointed out that the language missing from Barrow, the right to “nonexclusive free and uninterrupted use”, was present in the express easement in this case.  Thus, the outcome was different.

Take Home Lesson

This case offers an important point for persons entering into an express easement agreement.  The language of the grant will likely control whether a gate or fence may be erected across the easement.

If the person granting an easement wants the right to build a gate across the easement, he or she must ensure that the language of the express easement matches that from Barrow and does not include the grant of “uninterrupted” and “free” access.  If, on the other hand, a person seeking an easement wants to ensure that no one will be permitted to build a gate across the easement, he or she must ensure that the “uninterrupted” and “free” language are included.

These cases are a great example of the difference that just a couple of words can make in an agreement.  It is critical to ensure that the language used to describe the type of express easement being granted be precise and accurate so that the parties’ intent will be adequately protected.