"The equestrian easements are granted exclusively to persons on horseback and the horses that accompany them and that are under the direct control and responsibility of the rider. No equestrian easement grants a public right-of-way or easement. No equestrian easement grants a public area. No equestrian easement grants a public way."

"The bicycle easement is granted exclusively to persons riding bicycles. No bicycle easement grants a public right-of-way or easement. No bicycle easement grants a public area. No bicycle easement grants a public way."

1. In a letter from the Land Planning contractor to the Planning and Zoning Commission on September 12, 1973, the following improvements were itemized (Exhibit "U-2"):
   
   
   • - paved streets
   • - city water
   • - Armon sewage system
   • - underground utilities
   • - limited lighting
   • - equestrian trails
   • - bicycle paths
   • - no curb and gutter
   • - no sidewalks
   
   
2. The Specifications and Contract Documents for Roads and Utilities, dated September 1973 (Exhibit "U-3") does not mention pedestrian ways or facilities. It specifies equestrian paths and bicycle paths.



3. In a Memorandum dated December 3, 1973 from County Surveyor Joe A. Washburn to County Engineer Robert Blanton regarding Final Plat - La Senda, Tract A (Exhibit "U-4"):
   
   
   "The subdivision regulations state that 'No land which is burdened by any easement for any purpose shall be dedicated to the public,' (Sec. 8BK). I assume Southern Union Gas and the Public Service Co. have the right to use the public ways for utilities under their franchise. I wonder if this statement would allow others, such as cable TV, to use the streets for their lines."


4. In a letter from the contractor to the developer dated March 11, 1974 (Exhibit "U-5"), Furnish and Install costs include descriptions of equestrian paths and bicycle paths, but nothing about pedestrian ways or facilities.



5. In a letter dated May 8, 1974 from Abner Schreiber, County Attorney, to Edwin W. Stockly, attorney at law, regarding the La Senda Subdivision - White Rock, Pedestrian, Equestrian and Bicycle Easements (Exhibit "U-6"):
   
   
   "I hand you herewith a copy of Planning Director Pat Brown's memo to this office dated May 6, 1974, wherein he asks an opinion of this office relative to pedestrian, equestrian and bicycle trail "easements".
   
   From a review of this matter with Mr. Brown, I am left with the opinion that this trail is not an easement which has been conveyed to the County. I am of the further opinion that this may be a trail which is designated as such by the subdivider and is in the nature of a covenant that runs with the land."


6. In a letter dated May 10, 1974 from Edwin W. Stockly, attorney at law, to Abner Schreiber, County Attorney regarding the La Senda Subdivision - White Rock, Pedestrian, Equestrian and Bicycle Easements (Exhibit "U-7").
   
   
   "Upon examination of the plat of Tract A, La Senda, I find no language conveying the equestrian easements or the bicycle path, and I am advised by the attorney for the subdivider that there has been no conveyance of the easements since the recordation of the plat. It is, therefore, my opinion that the easements in question are owned by the subdivider, Jemez View Investment Company, Inc.".


7. In a Memorandum from County Surveyor Joe A. Washburn, L.S. to County Engineer Robert Blanton, PE. Tract A Final Plat review (Exhibit "U-8").
   
   
   "The new equestrian easements are not formally dedicated to anyone"


8. In a letter dated August 11, 1977 from John P. Bradley, Los Alamos Public Services Director, to Mr. George Emanuel, President of the La Senda Property Owners Association (Exhibit "U-9").
   
   
   "We would suggest that when residents in La Senda observe motor vehicles on the bicycle path they report license numbers to the Police Department."


9. Letter dated November 8, 1977, from La Senda Property Owners Association, David M. Lee, et al, to John Bradley, Public Service Director, County of Los Alamos (Exhibit "U-10").
   
   
   "…. As you know we do not have sidewalks…."


10. Report to the Planning Commission by the Planning Department, 1977. Exhibit "U-11".
    
    
    "...utility easement areas ...are not designated as pedestrian walkways or paths."
    
    
    "The Plat Review and Interdepartmental Committees ... had the following comments: 1. Residents of the La Senda area were present at this meeting and expressed their strong objection to the development of a walkway, since it would only encourage people to cut across private properties in either La Senda or Valle del Sol;"
    
    
11. Newsletter from La Senda Property Owners Association, 1977: Exhibit "U-12"
    
    
    "Posting of Stop signs warning motorists of the bike paths at Piedra Loop and La Senda Road."
    
    
12. Newsletter from La Senda Property Owners Association, 1977: Exhibit "U-13"
    
    
    "We also requested motor vehicle impediments for the bike path that runs through La Senda."
    
    
13. Newsletter from La Senda Property Owners Association, 1978: Exhibit "U-14"
    
    
    "1. Road striping where bicycle paths intersect Piedra Loop and and La Senda Road, and vehicle warning signs."
    
    
    "4. Install stop signs on the bike path where the path intersects the roads."
    
    

Dedication: "... only the owner of land can dedicate it. Private property is not to be taken for public use without just compensation. .... Liability to pay compensation is not to be evaded by leaving title in the owner while depriving him of the beneficial use of the property. When interference with the use of property by its owner consists of actual entry upon land and its devotion to public use for more than a momentary period, 'there is a taking of property in the constitutional sense, whether there has been any formal condemnation or not.'"

"A right of way may be public or private. Public ways, as applied to ways by land, are usually termed "highways" or "public roads," and are such ways as every citizen has a right to use. A private way relates to that class of easements in which a particular person, or particular description or class of persons, have an interest or right, as distinguished from the general public * * *. [Emphasis by court.]"

"This case is about an individual's rights in real property. It involves the question of a cable television company's right to use an easement granted to an electric cooperative.....To so construe the statute would be to burden the servient estates to an extent greater than the original grant. This added burden would constitute a taking of the grantor's property. The statute does not provide for, or require, the payment of compensation. Thus, to construe the Utility Code as Marcus would have us construe it would be to construe it as an unconstitutional taking of a private citizen's property without just compensation. Regardless of the benefits that cable television may provide to consumers, the Legislature may not take private property for public benefit without complying with the constitutional requirement of providing "just" compensation. See U.S. Const. amend V (uses the term "just" compensation); also Tex. Const. art. I, § 17..... We hold that Marcus had no authority under the common law of apportionment to enter upon and to place its cable across Krohn's property."

"Our de novo review of the easement documents reveals no facial ambiguities. The agreement between the parties states that the easement is to be a "walk easement." The easement grant itself states that the easement was "identified as a walkway easement in this plat." The dictionary definition of the word "walkway" is "a passageway used or intended for walking." Webster's Third New International Dictionary 2572 (1993). Neither term contemplates the use of bicycles on the easement path. The faces of the documents themselves admit no ambiguity, and, therefore, under the four corners rule, we may not consider parol evidence in interpreting the documents (or in determining whether they are ambiguous). We hold that the easement granted to defendant was limited on its face to use by pedestrian traffic.

" ' "The rule is that every incident of ownership not inconsistent with the easement and the enjoyment of the same, is reserved to the grantor." ' " Delgado v. Wilson, 178 Ill. App. 3d 634, 640 (1989), quoting Dolske v. Gormley, 58 Cal. 2d 513, 519, 375 P.2d 174, 178, 25 Cal. Rptr. 270, 274 (1962), quoting Webster's New World Dictionary 443 (1951). If an easement is limited in scope or purpose, the owner of the property subject to the easement burden is entitled to prevent such burden from being increased. Consolidated Cable Utilities, Inc. v. City of Aurora, 108 Ill. App. 3d 1035, 1040 (1982).

Because the easement documents here restrict the easement to use as a walkway, we hold that defendant's proposed use of the property as a bicycle path constitutes an impermissible expansion of the purpose of the easement without just compensation. See Consolidated Cable Utilities, 108 Ill. App. 3d at 1040-41 (where easement lists purposes it is reserved for, "the plain meaning of the reservation does not also include other unnamed" rights); see also Delgado, 178 Ill. App. 3d at 635, 639-40 (" 'right of way to be used as a driveway' " could not be used as a parking area (emphasis omitted)); Lien v. Loraus, 403 N.W.2d 286, 289 (Minn. Ct. App. 1987) (pedestrian walkway limited to use by pedestrian traffic).

Our review of case law supports both our conclusion that the easement documents are unambiguous on their faces and our interpretation of those documents as allowing only foot traffic over the easement. In Cleveland v. Clifford, 121 Ohio App. 3d 59, 61, 698 N.E.2d 1045, 1047 (1997), the court held that an easement which described itself as a "drive easement" was unambiguous. It then held that the easement was limited to use as a driveway and thus that parking on the easement was not contemplated in the easement grant. Cleveland, 121 Ohio App. 3d at 60-63, 698 N.E.2d at 1046-48; see also Delgado, 178 Ill. App. 3d at 635, 639-40.

In Dolske, 58 Cal. 2d at 519, 375 P.2d at 78, 25 Cal. Rptr. at 274 (cited in Delgado, 178 Ill. App. 3d at 640), the court held that an easement granting the "right to use as a driveway" did not allow for pedestrian access. The court construed the term "driveway" narrowly because " 'every incident of ownership not inconsistent with the easement and enjoyment of same [should be] reserved to the grantor.' " Dolske, 58 Cal. 2d at 519, 375 P.2d at 178, 25 Cal. Rptr. at 274, quoting Webster's New World Dictionary 443 (1951). Likewise, here, the terms "walk easement" and "walkway" should be construed narrowly, because they plainly express the purpose for the easement and because additional uses not expressed in the easement should be reserved to the grantor.

In Lien, 403 N.W.2d 286, the court considered an easement which provided for a "pedestrian walkway" to a lake. The plaintiffs in Lien sought to build a dock on the lake pursuant to their easement. Lien, 403 N.W.2d at 287. The court stated that the easement was ambiguous as to whether it included a right to build a dock, and the court turned to parol evidence to resolve that question. Lien, 403 N.W.2d at 289. However, the court stated that the term "pedestrian" unambiguously limited the mode of travel over the easement to foot traffic. Lien, 403 N.W.2d at 289. Likewise, here, the terms "walkway" and "walk easement" unambiguously limit the mode of passage over the easement to pedestrian travel(1).""

"The City Planning Commission conditioned approval of petitioner Dolan's application to expand her store and pave her parking lot upon her compliance with dedication of land (1) for a public greenway along Fanno Creek to minimize flooding that would be exacerbated by the increases in impervious surfaces associated with her development and (2) for a pedestrian/bicycle pathway intended to relieve traffic congestion in the City's Central Business District."

"Held: The city's dedication requirements constitute an uncompensated taking of property. Pp. 8-20."

Citation from Utah:


"In order to proceed with a remodeling, property owner was required to dedicate to the city a portion of her property which fell within a 100 year flood plain as well as the adjoining 15 feet for a bike path. The Court struck down the requirements, stating that the same result in terms of flood control could have been achieved with a lesser burden on the landowner by merely barring development on the flood plain. The bike path requirement, according to the Court, failed to establish a reasonable relationship between the burden of the proposed development (increased traffic) and the required exaction. There was no quantified proof that traffic to a hardware store created a need for a bike path. The municipality has the burden of proof to establish that the benefit to the public of the required public facilities has a "rough proportionality" to the burden created by the proposed private development."

Analysis from Anderson:


"C. DOLAN/GREENWAY AND PATHWAY: In Dolan v. City of Tigard, 114 S.Ct. 2309 (1994), the Supreme Court addressed a question left opened in Nollan, namely, to avoid a claim of unconstitutional taking "what is the required degree of connection between the exactions imposed by the City and the projected impacts of the proposed development"? 114 S. Ct. at 2312. The petitioner had applied for a permit to increase the floor area of structures on the property and to pave additional parking spaces for her plumbing and electric supply store. 114 S.Ct. at 2313. The City Planning Commission granted the permit subject to conditions including a requirement that the petitioner "dedicate the portion of her property lying within the 100-year floodplain for improvement of a storm drainage system along Fanno Creek and that she dedicate an additional 15-foot strip of land adjacent to the floodplain as pedestrian/bicycle pathway." 114 S.Ct. at 2314. The Supreme Court concluded on the record before it that these conditions effectuated an unconstitutional taking. Finding that the conditions deprived the petitioner of the right to exclude others from her property and singled her out to bear public burdens that should be borne by the public as a whole, the Court performed a two step analysis to determine whether the conditions passed the "essential nexus" test between a legitimate state interest and the permit condition. 114 S.Ct. at 2316-2322. Initially, the Court recognized that the "prevention of flooding along Fanno Creek and the reduction of traffic congestion in the Central Business District qualify as the type of legitimate public purposes we have upheld." 114 S.Ct. at 2317-2318. The Court went on to rule that "'rough proportionality' best encapsulates" the required relationship between the exaction and the projected impact of the petitioner's proposed development. 114 S.Ct. at 2318-2319. The Court stated: No precise mathematical calculation is required, but the City must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development. 114 S.Ct. at 2319-2320. Under this rough proportionality test, both conditions failed to pass muster. The public greenway condition failed because the "city has never said why a public greenway, as opposed to a private one, was required in the interest of flood control." 114 S.Ct. at 2320. The pedestrian/bicycle pathway condition failed because "on the record before us, the city has not met its burden of demonstrating that the additional number of vehicle and bicycle trips generated by the petitioner's development reasonably relate to the city's requirement for a dedication of the pedestrian/bicycle pathway easement." 114 S.Ct. at 2321."

American Nassau Bldg. Sys. v. Press, 143 A.D.2d 789, 533 N.Y.S.2d 316, 318-19 (1988), app. den., 73 N.Y.2d 705, 539 N.Y.S.2d 298, 536 N.E.2d 627 (1989) (use or potential use by public of private dead end road will not, alone, transform it into public street; road must also have been kept in repair or taken in charge and thus adopted by public authorities during period in question).

A-9.BicyclePath.html 28 Dec 2005 Brief A-9