“Just when you think you’ve seen everything … you haven’t.” Unless my memory is failing that is what favorite sports announcer NBC’s Al Michaels [1] said about Russell Wilson’s turn of a botched snap/catch  – which under most circumstances would have been a 20 yard set-back – into a first down conversion pass to Tyler Lockett that on the next play allowed the Seahawks to get the ball across the goal line in their 10 – 9 wildcard victory over the frost-bitten Vikings.

Well, similarly to the play which caused Michaels’ comment, here’s the set-up of a “just when you think you’ve seen everything … you haven’t” case I recently reviewed. Basically, we have a flag lot [2] which has an recorded easement for ingress and egress – i.e. going in and out – which burdens a portion of it so that another neighbor can use to cross an “intersection” to said flag lot neighbors’ property.

What makes this case interesting is that there is a fence along the neighbor’s easement, such that the owner of the burdened land can not use his “flag pole” to exit his property because he would need to remove not just one, but two fences, running alongside the neighbor’s easement.

Now my initial reaction was that this would legally be an uphill climb for the owner of the burdened land. But, the more questions I fielded, the more I came to understand that the burdened owner has a very strong legal argument.

Basically, notwithstanding the fact that the fences are believed to have been in place for longer than the statutory period and as such the burdened land owner has not used the property, because we are dealing with an easement instead of the fee simple – i.e. full – ownership of land, the legal analysis ought to cut to the owner of the burdened land.

The reason for this goes to the Washington Supreme Court’s unanimous, en banc – i.e. all 9 Justices sitting – decision in the 2006 case of Heg v. Alldredge. [3] Heg basically provides that an easement can only be extinguished expressly by the benefited land owner … and not by mere abandonment. Heg’s rationale is bottomed on the legal determination that the land owner must be put on notice that the land owners benefited by the easement are having their land removed from them.

This is important because certainly if “sticks of property” from the original “full bundle” of property rights can’t be taken from the (property right receiving) land owner benefited by the easement, the land owner burdened by the easement – by necessary corollary – can not be divested of the remainder of those property rights that he or she retains.

Why would this be the case? Because notwithstanding the fact that the fences exclude others and are are out there for the full world to see, the land owner burdened by the easement does not have notice that the land owner benefited by the easement is seeking to extinguish his or her retained rights.

Essentially, the land owner burdened by the easement has given permission to use the land beyond the scope of the easement. And here please recall that permissive use is subordinate to the superior rights of the one who grants it and thus those uses can be revoked.

I suppose it is possible an appellate court would not rule this way. But even if that isn’t how it would decide, this is a valid question ripe with merit for decision. Will I be the one bringing this case for that determination? … I highly suspect not.

The reason is because while this explanation may be a little daunting, I would seek to clarify it if need be and explain along with an offer for opposing counsel to pass to the neighbor that if they want to press it, this is a case which either side could easily appeal and as such legal engagement is the equivalent of mutually assured destruction.

Instead, one would want to work with the neighbor to attack not each other, but the problems instead. Basically, while there are potentially some valid concerns which might be solved (by perhaps installment of a gate to replace the fence), the net effect of opening the private, easement “intersection” so that both parties can use it is a net positive. And this goes to the final point: “The law seeks to allow land to go to its highest and best use.”

Let’s save the miracles for other contests … like an opportunity for the Seahawks to play and crush the “deflate gate champions” in Super Bowl 50!

BTW – That’s not an expression of concern that Seattle will have any difficulty dispatching Carolina and then either Phoenix or Green Bay. No, instead that’s a prayer which goes out to Boston!

[1] The reason Al Micheal’s is my all time favorite sports announcer because of his indelible, 1980 call of the US Olympic hockey team’s 4-3 upset of the Soviet Union – The Miracle on Ice.

Enjoy it [HERE] and then Al Michaels’ recollection of it a quarter century (or more) later [HERE].

[2] Flag lots have the appearance of a flag whereby the main portion of the lot is usually connected by a narrow portion to a roadway. Essentially, instead of having an easement serving ingress and egress purposes – which is in fact what the adjoining neighbor in this case in this particular case – there is a “flag pole” portion of the lot which in place for the purpose of ingress and egress.

[3] See FindLaw’s republishing of Heg v. Alldredge [HERE].