Bivens v Mobley
Ct. App Mississippi [1998]
Author:- Sam Biers

Relevant Facts: The dominant estate owner, Bivens, Df, and the Pl, Mobley, owner of the servient estate exchanged tracts of land.  The deed from Bivens to Mobley reserved an easement, 15 ft wide, along the east side of Mobley’s property.  Bivens actually accessed his property using the west side of Mobley’s property, underneath the power lines.  No grant of easement existed for that ingress/egress.  The parties shared a common waterline which ran along the west driveway.  The only meter was in Mobley’s name and Bivens would pay his share to Pl. The water association informed Mobley that only one dwelling was allowed per meter.  Biven then wanted to run a water line through the unused east side easement.  Mobley objected. Bivens stated he was going to install the line, to which Mobley obtained a TRO.

Legal Issue(s): Whether the easement included within its scope the right to lay utility lines of various sorts, including waterline?  Whether the owner of dominant estate had abandoned his right to use easement for ingress and egress along eastern side of his neighbors' property, by virtue of his protracted non-use during time when he was utilizing alternate means of access?

Court’s Holding: Yes, No

Procedure: Tr Ct ruled no right to lay a waterline ; Ct of App  Affirmed in part, reversed in part, and remanded.

Law or Rule(s):  The beneficiary of an easement is authorized to make any use of the servient estate that is reasonably necessary for the convenient enjoyment of the servitude for its intended purpose.  Such use should not cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment.

Court Rationale: A ct should not get into the business of determining as in a zoning decision, what is going to have an adverse impact.  It is what the parties agreed that is the focus.  What is important for an arms length, negotiated easement is the intent of the parties.  The chancellor made no findings about the intent of the parties.  The circumstances of the 1978 transaction expresses nothing about intent.  Absent evidence of intent, we must give more precise meaning to the general concept of access.  An easement for ingress/egress encompasses surface use and whatever improvements and maintenance to the roadway that are necessary to permit continued travel.  It would imply the right to bring such vehicles, equipment and materials necessary to construct or repair the home or other structures.  Ingress/egress for other necessities whether carried in vehicles or continuously conveyed underground is included in the grant.

Plaintiff’s Argument: Access to a homesite does not permit the homeowner to be connected to the outside world by what today would be considered necessities: water lines, sewer, cable.

Defendant’s Argument: A necessary part of the grant or reservation of the easement of ingress and egress is the right to lay utility lines of various sorts.