The Lawletter Vol 35 No 7, May 6, 2011
Scott Meacham, Senior Attorney, National Legal Research Group
More than just giving someone permission to use your land, the granting of an easement is the separation of at least one of the sticks in the bundle that represents the ownership of the underlying real property. This distinction between use and ownership came to the fore in a recent criminal case before the Court of Appeals of Washington, State v. Newcomb, 246 P.3d 1286 (Wash. Ct. App. 2011).
Newcomb started out as a typical dispute between neighboring landowners. The landlocked dominant estate owned a conventional access easement across the servient estate. The dominant estate owners used a long driveway across the neighboring land to reach the public road. The adult son of the servient estate owner, defendant Scott Newcomb, evidently disputed his neighbors' rights, however. He felled a tree across the driveway that crossed his mother's land, and he threatened to harm the neighbors if they tried to improve the road. Newcomb's behavior led to a civil suit, and the dominant estate owners won an injunction in 2004.
The following summer, the new owners of the dominant estate spent $12,000 improving their driveway with a gravel surface. Over a period of several days, Newcomb used a front-end loader to remove the gravel, dig out the roadbed, and block the road with several large stumps. There is no question that these acts violated the permanent injunction and would have been impermissible interferences with the easement in their own right. The owners of the dominant estate, however, called the police, and the State charged Newcomb with one count of first-degree malicious mischief.
Washington's malicious mischief statute required the prosecutor to prove that Newcomb had knowingly and maliciously caused physical damage to the "property of another." Id. at 1289. Newcomb pointed out that the damaged real estate was not actually the "property of another," meaning the dominant estate owners; rather, it was owned by his mother. The dominant estate was not in possession of the driveway, and it "owned" nothing more than a right to use a portion of the land. The trial court agreed and dismissed the claim.
On appeal, the court of appeals reversed the dismissal on two main grounds. First, the court noted that the statutory phrase "property of another" does not refer simply to land that the victim might own completely, in fee simple. Instead, the phrase is defined in the state code as any property in which the defendant possesses anything less than exclusive ownership. Thus a prosecution requires only that someone other than the defendant own at least a part interest in the damaged property. The easement clearly falls into this category, and the statutory definition was likely all that the court of appeals would have needed to reverse the decision of the lower court. Indeed, the statutory definition might even have supported a prosecution against Newcomb based on his mother's ownership of the property underlying the driveway.
The court of appeals added a second basis for reversal: The dominant estate owners implicitly "owned" the gravel road that they had built along the easement route. Even if the statutory definition of "property of another" did not apply to the real estate itself, the court held, Newcomb had unquestionably damaged the improved gravel road. The court suggested that the road surface itself was the exclusive property of the dominant estate owners and that it thus could not be damaged with impunity. See id. at 1290. (The court did not address the possibility that a defendant like Newcomb could cause total damages over the $1,500 threshold for malicious mischief but nevertheless harm less than $1,500 worth of gravel.)
The court concluded with a more theoretical argument, a point on which it might have begun its discussion: "The value of [the dominant estate's] easement right was diminished by Newcomb's actions." Id. Thus, it seems that an easement, although more than merely the right to use the land of another, need only amount to such a right for interference with it to support a criminal charge of malicious mischief.
