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April 12, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Harold L. Cushenberry, Jr., Trial Judge

Rogers, Chief Judge, and Terry and Farrell, Associate Judges.

The opinion of the court was delivered by: Rogers

This appeal arises out of a dispute between residential property owners with respect to a fifteen foot ingress and egress easement that runs over part of appellants' property for appellees' benefit. Appellants sought to put a gate across the width of the easement at its western end and a fence (with gates) along the length of the easement adjacent to appellees' property. Appellees obtained a temporary restraining order, and thereafter a permanent injunction, to prevent appellants from constructing any gate or fence. We reverse and remand.


Appellants Tanakas are the owners of lot 50 in Square 2154, located at 32465 Street, N.W., Washington, D.C. (servient estate). Appellees Sheehans are the owners of lot 804 in Square 2154, located at 3247 R Street, N.W., Washington, D.C. (dominant estate).

In 1927, the owners of lot 50 granted the owners of lot 804 a right of way for ingress and egress over a tract in the southwest part of lot 50. The easement leads to a public alley, which, in turn, leads to S Street, and thereby provides direct access to S Street from the rear of lot 804. When appellees acquired lot 804 in 1972, the deed conveyed to them "a right of way for the purpose of ingress and egress" over an area of lot 50 that was fifteen feet in width (hereinafter referred to as the easement area). [See Appendix]

There are no gates or fences in the easement area, and it has never been obstructed in any way. There are two gates on appellees' property which are at the border of the easement. One gate is wide enough for motor vehicles to pass through; the other is far narrower and for pedestrian use. Appellees have used the easement for a variety of purposes over the years, principally to accommodate deliveries to the rear of their property. Thus, the gardener, pool maintenance personnel and caterers have used the easement area to gain entry onto appellees' property because the areas on either side of the house are very narrow. Although appellees have not used the easement in order to park their car in a garage located at the rear of their property, they have plans to construct a new garage for future use at the same location as the present garage.

Appellants, who purchased lot 50 in 1978, retained an architectural firm in 1985 to prepare plans for the construction of a gate and a fence in the easement area. They were motivated by concerns about security, and wanted to have a physical barrier between their property and the public alley. The architect's plans called for construction of a gate across the western area of the easement blocking the public alley and a fence, with gates, along the southern boundary of their property that abuts the easement area. *fn1 The structures upon which the western gate was hung would extend three and one-half feet into the easement area. The fence would occupy from three and one-half to three and three-quarter inches of the easement area. To maintain the easement at its current size, appellants moved the southern boundary of their perimeter wall four and one-half inches north; thus, the usable easement area would be from three quarters of an inch to one inch greater than it is presently.

Appellants engaged appellees in Discussions about their plans and proposed to modify them in response to certain of appellees' concerns. *fn2 Initially appellants had planned to install locks on the western gate and furnish keys to appellees. They modified their plan when appellees expressed concern about personal security if they were required to get out of their car to unlock the gate. The new plan provided for the installation of an electronically operated gate. Appellants would furnish appellees with four remote control units which they could disburse to delivery people, and if they desired, additional units would be furnished. On November 13, 1989, appellants began constructing the fence (with gates) and gate in the easement area. Appellees thereafter obtained a temporary restraining order, and trial on their request for a permanent injunction began on January 10, 1990.

At trial appellants presented testimony that they were willing to modify their plans in the event that the Judge found that an electronically locked gate would unreasonably interfere with appellees' use of the easement. In that event, appellants proposed to install an unlocked gate with latches that could be opened from the inside or outside. The trial Judge permanently enjoined appellants from

installing . . . a fence, gate or any other kind of obstruction, structure, or impediment over, across, in or on any of the space reserved for the easement owned by , * * * and modifying, altering or otherwise affecting in any way the area reserved for the easement owned by ; and [] otherwise taking any action to interfere with, impede or hinder [appellees'] right to the unfettered ingress and egress over, across, on or through the easement area.

The trial Judge concluded first, that the gate and the fence (with gates) impermissibly encroached upon the easement and, under Fields v. District of Columbia, 143 U.S. App. D.C. 325, 443 F.2d 740 (1971), violated appellees' rights, and second, that the gate at the western end of the easement unreasonably interfered with appellees' unrestricted right of ingress and egress. The Judge reasoned that here, as in Preston v. Siebert, 21 App. D.C. 405 (1903), a locked gate would provide a severe inconvenience to appellees since "tradesmen wishing to introduce goods through the right of way would have to first come to the front of the house to secure the control device to open the gate[]."

The Judge denied appellants' motion to amend the judgment, although he amended his findings to address specifically appellants' testimony that they would, as an alternative to the electronically-controlled gate, install a "gate[] with latches that would be unlocked and openable from either side." The Judge found that an electronically-controlled gate risked unauthorized access to both parties' premises, and consequently would not enhance security, and "more importantly the required coordination of delivery and return of the control units would . . . constitute an unreasonable and substantial interference with [appellees'] rights." He viewed the alternative proposal for an unlocked latched gate to be "a proposal nothing more nothing less." The Judge added that "this proposed gate without more does not persuade the Court that [appellees'] right of access would not be unreasonably restricted," noting that it was unclear whether the ...

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