September 2-September 15, 2015 —
COLORADO REAL ESTATE JOURNAL
— Page 19
Law & Accounting
I
n 2014, the town of Deer
Trail proposed to allow
“hunting licenses” for
unmanned aerial vehicles flying
within town limits. On July 26, a
Kentucky man named William
Meredith made headlines after
shooting down a drone hover-
ing over his backyard, where
his daughters sat by their pool.
These stories exemplify the
sensitivity people have about
drones over their property.
Utility companies, however,
may see great benefits using
drones to inspect utility lines
along existing easements or
rights of way. (The term ease-
ment is in many ways synony-
mous with the term right of
way. But there are subtle differ-
ences that can be important at
times. The term right of way, for
purposes of this article, will be
treated as synonymous with the
term easement.) Since drones
can carry thousands of dollars
of sensitive equipment, compa-
nies cannot risk having a drone
shot down any more than they
can risk having operations shut
down by a lawsuit.
Even if a company receives
an exemption under Section 333
of the Federal Aviation Admin-
istration Modernization and
Reform Act of 2012 to operate
a drone in controlled airspace,
that exemption does not pro-
tect against landowner trespass
and privacy claims in private,
unregulated airspace or from
claims relating to surveillance,
so companies should know the
law in those areas before using
drones for survey and inspec-
tion purposes. (For exemptions,
see
/
uas/legislative_programs/sec-
tion_333/.) Fortunately, exist-
ing easement rights may afford
most or all of the legal protec-
tion needed.
n
“Normal evolution” of the
easement and the balancing of
interests.
Colorado law allows
for the “normal evolution of an
easement” and a balancing test
between the rights of the ease-
ment holder and the rights of
the landowner when resolving
disputes. (See generally Wright
v. Horse Creek Ranches, 697
P.2d 384 (Colo. 1985); Clinger
v. Hartshorn, 89 P.3d 462 (Colo.
Ct. App. 2003), cert. denied;
see also Restatement (First) of
Property § § 477-479 (1944); see
also Hayes v.
City of Love-
land, 651 P.2d
466 (Colo. Ct.
App. 1982)
(Change in
degree of use,
as opposed
to change in
type of use,
was permis-
sible to allow
u p g r a d e
to 115-volt
power line
as part of the
normal and
usual evolution of the ease-
ment.)
This means an easement may
evolve in the way it is used but
not so much that the funda-
mental purpose of the easement
changes. For example, an ease-
ment to maintain a ditch that
was historically maintained by
a workman with a horse might
evolve to allow ditch mainte-
nance using a motorized all-
terrain vehicle, a GPS device
and a trenching tool. The same
easement could not, however,
evolve into an access easement
for recreational fishing in the
reservoir from which the ditch
runs. (See e.g. Bijou Irrigation
Dist. v. Empire Club, 804 P.2d
175, 187 [Colo. 1991.])
Many jurisdictions, includ-
ing those in Colorado, require
a balancing of the interests of
landowners against the interest
of easement holders in order to
reach an equitable resolution of
disputes over easement rights.
(See Restatement [First] of Prop-
erty Sections 477, 478, and 479.
For Section 477: Ct.Fed.Cl.; Cal.
App.; Colo.; Colo.App.; Conn.;
Del.Ch.; Idaho; Iowa; Me.;
Md.Spec.App.; Mass.; Mass.
App.; N.H.; N.M.App.; N.D.;
Or.; Pa.; Pa.Super.; Tenn.App.;
Utah; Vt.; Wash.App.; Wis.App.
For § 478: Ct.Fed.Cl.; Alaska;
Cal.App.; Colo.; Colo.App.;
Conn.; Del.Ch.; Idaho; Iowa;
Me.; Md.Spec.App.; Mont.; Or.;
Pa.; Pa.Super.; Wash.; Wash.
App. For § 479: C.A.D.C.; Cal.
App.; Colo.; Colo.App.; Conn.;
Conn.App.; Idaho; Ill.App.;
Iowa; Me.; Md.; Md.Spec.App.;
Mass.; Mass.App.; Mont.; Or.;
Pa.; Pa.Super.)
Whether the use of a drone is
permissible on an existing utility
easement could depend upon
a number of factors, including
the language of any easement
agreement or condemnation
decree, the specifics about how
and when drones will be used
and what data they will gath-
er, and whether the use of the
drone creates an additional bur-
den on the property owner that
did not exist previously.
n
Owner’s rights to air-
space?
Owners may sue for aer-
ial trespass in private airspace,
but the rules about what con-
stitutes “private” airspace are
not particularly clear. To accom-
modate modern air travel,
Congress passed laws and the
Supreme Court made rulings
that effectively made airspace
above the “immediate reaches”
of the ground public domain for
aviation, subject to federal laws
and regulations (Troy A. Rule,
Airspace in an Age of Drones,
95 B.U. L. Rev. 155, 166 [2015]).
The term “immediate reaches”
remains difficult to define with
precision.
The lingering question for
utility companies with ease-
ment rights is whether using the
airspace within the “immediate
reaches” of the surface of the
easement is permitted as a natu-
ral evolution of that easement.
A property owner has the right
to use the land in any way that
does not unreasonably interfere
with the rights of the easement
holder, and vice versa. (Lazy
Dog Ranch v. Telluray Ranch
Corp., 965 P.2d 1229, 1238 [Colo.
1998], as modified on denial of
reh'g [Oct. 19, 1998]["[u]nless
the intentions of the parties are
determined to require a different
result, the owner of the servient
estate may make any use of the
burdened property that does not
unreasonably interfere with the
enjoyment of the easement by its
owner for its intended purpose.
… Conversely, the owner of the
easement may make any use of
the easement [including main-
tenance and improvement] that
is reasonably necessary to the
enjoyment of the easement, and
which does not cause unrea-
sonable damage to the servient
estate or unreasonably interfere
with the enjoyment of the ser-
vient estate.")[internal citations
omitted])
So, a landowner with an estab-
Daniel C.
Wennogle
Attorney, Stinson
Leonard Street LLP,
Greenwood Village
Adding value to the commercial
real estate industry for over 25 years.
Tax Planning & Structuring
Financial Statement Audits & Reviews
Estate & Gift Tax Planning
Tax Return Preparation
Litigation Support
Our Real Estate Group
Serving the Commercial Real Estate Community
TRANSACTIONAL
Mark A. Senn
David C. Camp
Lawrence J. Donovan, Jr.
Christine L. Hayes
Julia W. Koren
Jonathan G. Nash
Barry Permut
Matthew D. Pluss
Wynn E. Strahle
Michel P. Williams
CONSTRUCTION
Mark D. Gruskin
LITIGATION
Frank W. Visciano
Erich L. Bethke
Leasing
Real Estate Development
Real Estate Sales and
Acquisition
Commercial Lending,
Workouts and Foreclosure
Real Estate and
Commercial Litigation
Construction Contracts
and Litigation
1 8 0 0 A T T O R N E Y S | 3 7 L O C A T I O N S WO R L DW I D E ˚
Helping hotel & resort clients
with legal services
when you
need them
Greenberg Traurig’s Hotels, Resorts & Clubs Practice
advises our clients – including property developers,
owners and operators, as well as governments, private
government corporations, governmental and private
financial institutions, and financial consultants – on
virtually all aspects of their involvement in the industry,
providing practical legal services for their business needs.
