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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 2003 Decided October 31, 2003
No. 02-7016
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,
APPELLANT
v.
GEORGETOWN UNIVERSITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 01cv00634)
Joseph J. Zimmerman, Assistant General Counsel, argued
the cause for appellant. With him on the briefs were Cheryl
C. Burke, General Counsel, Carol B. O’Keeffe, Principal Depu-
ty General Counsel, and Gerard J. Stief, Associate General
Counsel.
William M. Holm argued the cause and filed the brief for
appellee.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: EDWARDS, RANDOLPH, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
Dissenting opinion filed by Circuit Judge RANDOLPH.
EDWARDS, Circuit Judge: This case concerns an easement
held by Georgetown University on property owned by the
Washington Metropolitan Area Transit Authority
(‘‘WMATA’’). In 1895, William J. and Barbara Fowler,
Georgetown’s predecessors-in-interest, sold a strip of their
land in the District of Columbia to the Washington and Great
Falls Electric Railway Company, WMATA’s predecessor-in-
interest. The deed conveying the property reserved an ease-
ment for the Fowlers and their successors for a private right-
of-way of ‘‘not less than twelve feet in width.’’ It is undisput-
ed that, at the time of this conveyance, the private right-of-
way was 12 feet in width on an existing road called Fowler’s
Road.
In 1951, Georgetown requested and obtained a permit from
WMATA’s predecessor-in-interest to relocate the easement
and pave a 22-foot-wide road on Fowler’s Road. Since 1951,
Fowler’s Road has been 22-feet wide. In 2000, Georgetown
announced a plan to widen the roadway again, from 22 feet to
36 feet. This time, WMATA did not consent. WMATA then
filed this trespass action against Georgetown. The District
Court granted summary judgment for Georgetown and de-
nied summary judgment to WMATA, holding that nothing in
the language of the deed prohibits Georgetown from unilater-
ally widening Fowler’s Road so long as Georgetown does not
interfere with roads on WMATA’s property. On appeal,
WMATA argues that the District Court erred in its judg-
ment, because nothing in the deed permits Georgetown to
widen the road unilaterally. We agree. We hold that
Georgetown’s proposed widening of the road amounts to a
relocation of the easement, which is not permissible under
District of Columbia law without the mutual consent of the
parties. Therefore, we reverse the District Court’s grant of
judgment to Georgetown and remand the case for entry of
judgment in favor of WMATA.
3
I. BACKGROUND
WMATA currently owns property known as Lot 822,
Square 1321, or the Rider’s Fund Land. It is adjacent to
certain property owned by Georgetown. A paved, private
road known as Fowler’s Road runs through WMATA’s prop-
erty near its eastern end. Fowler’s Road connects the
Georgetown campus with Canal Road.
On August 10, 1895, the Washington and Great Falls
Electric Railway Company, WMATA’s predecessor-in-
interest, obtained the property by deed for $1750.00 from
William J. and Barbara Fowler, Georgetown’s predecessors-
in-interest. The property consisted of two parcels of land,
referred to by the deed as Parcels Number Two and Three.
The railway company planned to build a bridge on the
property for the running of railway trains. The Fowlers
owned property on both sides of the parcels that they sold to
the railway company. They reserved three easements on the
deeded property as follows:
[1] the perpetual right to pass and re-pass over any
and all parts of the aforesaid ‘‘Parcels Numbers Two
and Three’’, to and from and between the lands lying
on either side thereof TTT
[2] the absolute right to locate and dedicate, at any
time in the future one or more public streets or
highways across the said ‘‘Parcel Number Two (2)’’
of a width of not less than sixty (60) feet nor more
than one hundred and twenty (120) feet each; pro-
vided, only, that the exercise of the said several
rights hereby reserved shall not interrupt nor inter-
fere with the proper running of the cars of the party
of the second part, its successors or assigns upon the
railway to be laid and constructed by it or them on
the lands hereinbefore conveyed or the operation
and maintenance of its road when the same shall
have been completed, nor with the proper use of the
said lands in and about the construction of said road
or railway TTT
4
[3] the private right of way leading from the public
road known as the Canal Road, to the house of said
William J. Fowler and other houses lying to the
North of the lands hereby conveyed shall remain a
private right of way as it is at present, and the right
to the free, uninterrupted and unobstructed use of
the same as a highway, subject to the erection and
maintenance of a bridge by said party of the second
part across the same, is hereby expressly reserved
unto the said William J. Fowler, his heirs and as-
signs forever, it being understood and agreed that
the width of said private right of way is and shall
continue always to be not less that [sic] twelve (12)
feet in width where it passes across the land herein
conveyed to said company.
1895 Deed, Joint Appendix (‘‘JA’’) 20.
This case concerns the third easement referenced in the
deed. Fowler’s Road is the ‘‘private right of way’’ to which it
refers. The road lies at the eastern end of the property. As
the deed indicates, the Fowlers’ right to use the property in
the second easement was limited; the use could not interfere
with the running of the railroad cars upon the railway to be
constructed. The Fowlers’ right to use the property in the
third easement was subject to the railway company’s right to
build a bridge. In turn, the railway company’s right to build
a bridge was limited: It was required to leave the Fowlers a
private right-of-way of ‘‘not less than twelve feet.’’
By 1951, Georgetown had acquired the Fowlers’ land, and
the Capital Transit Company was the successor-in-interest to
the Washington and Great Falls Railway Company. In 1951,
Georgetown sought a permit from the Capital Transit Compa-
ny to pave Fowler’s Road and widen the right-of-way to 22
feet. Capital Transit agreed and, on September 24, 1951, the
parties executed a revocable permit which allowed George-
town to build the proposed roadway. See Thirty-Day Revoca-
ble Permit To Cross D.C. Transit Right-of-Way, JA 53-54.
Pursuant to the permit, Georgetown paved a road that mea-
sured 22 feet wide on Fowler’s Road. Fowler’s Road cur-
5
rently serves a portion of the university campus on which
Georgetown is constructing several new buildings.
On March 23, 2000, Alan Brangman, the University Archi-
tect for Georgetown University, informed the General Manag-
er of WMATA in writing of Georgetown’s interest in purchas-
ing or leasing a portion of the WMATA property. Letter
from Brangman to White of 3/23/00, JA 24. However, the
parties were unable to agree to terms for the sale or lease of
the land. Subsequently, on July 24, 2000, the University
wrote WMATA indicating a desire to ‘‘reconfigure part of the
University’s roadway leading from Canal Road to the main
campus,’’ purportedly pursuant to Georgetown’s easement
rights under the deed. Letter from Brangman to Denton
Kent, WMATA’s Director of Property Development and Man-
agement, 7/24/00, JA 27-28. Georgetown planned to expand
the road’s width from 22 feet to 36 feet. On September 13,
2000, WMATA provided written notification to Georgetown
indicating that it did not consent to Georgetown’s plans for
the widening of Fowler’s Road. The letter also stated that
Georgetown ‘‘has no legal right to unilaterally relocate an
easement.’’ Letter from Kent to Brangman of 9/13/00, JA 29-
30. On November 13, 2000, Georgetown informed WMATA
that it would be undertaking site grading and curb and gutter
work within the easement area, and that it would restore any
property disturbed by the construction to its previous condi-
tion. Letter from Brangman to Kent of 11/13/00, JA 31.
Georgetown undertook and completed this work in March
2001.
On March 22, 2001, WMATA filed a complaint for declara-
tory and injunctive relief and a motion for a preliminary
injunction in the United States District Court for the District
of Columbia. WMATA sought to enjoin Georgetown from
trespassing on its property by relocating Fowler’s Road.
Georgetown and WMATA each filed motions for summary
judgment, on which the District Court held a hearing.
On December 31, 2001, the District Court denied
WMATA’s preliminary injunction and summary judgment
motions and granted summary judgment for Georgetown.
6
The District Court held that the ‘‘plain, unambiguous lan-
guage of the deed’’ granted Georgetown ‘‘the right to under-
take the activity at issue.’’ Washington Metro. Area Transit
Auth. v. Georgetown, 180 F. Supp. 2d 137, 139 (D.D.C. 2001)
(hereinafter ‘‘WMATA’’). The District Court held that, since
the 1895 deed only specified a minimum width for Fowler’s
Road, without specifying a maximum width, the deed did not
prohibit Georgetown from ‘‘widening Fowler’s Road as long
as Georgetown’s activity does not interfere with roads on
WMATA’s property.’’ Id. at 142. The court held further
that Georgetown’s widening of the road was a ‘‘reasonable
use’’ of the easement. Id. at 143.
II. ANALYSIS
A. Choice of Law
This litigation is properly maintained in federal courts
because the interstate compact between the District of Co-
lumbia, Maryland, and Virginia creating WMATA confers
original jurisdiction to the United States District Courts
concurrent with the courts of those states in all actions
brought by or against WMATA. See Section 81, Washington
Metropolitan Area Transit Authority Compact, D.C. CODE
§ 9-1107.01 (2001). WMATA chose the United States Dis-
trict Court for the District of Columbia as the venue for this
action, ‘‘because, among other reasons, the property that is
the subject of this litigation is located in the District of
Columbia.’’ Complaint ¶ 4, JA 6. In addressing the parties’
claims, the District Court applied District of Columbia con-
tract and property law. Neither party has objected to the
application of District of Columbia law, and we find no error
in the District Court’s choice of law. Therefore, we too apply
the law of the District of Columbia in addressing the parties’
claims on appeal. See Nello L. Teer Co. v. Washington
Metro. Area Transit Auth., 921 F.2d 300, 302 n.2 (D.C. Cir.
1991) (applying the same law as that applied by the district
court where parties did not brief the choice of law issue nor
object to the district court’s choice of law, and no error found
in trial court’s choice of law); Lee v. Flintkote Co., 593 F.2d
7
1275, 1280 (D.C. Cir. 1979) (noting potential unfairness of
invoking a body of foreign law that neither side has consid-
ered applicable).
B. Standard of Review
The interpretation of the plain language of a contract is a
question of law subject to de novo review. See KiSKA Const.
Corp. v. Washington Metro. Area Transit Auth., 321 F.3d
1151, 1158 (D.C. Cir.), cert. denied, 2003 WL 21692197 (2003)
(quoting LTV v. Gulf States Steel, Inc., 969 F.2d 1050, 1055
(D.C. Cir.), cert. denied, 506 U.S. 1022 (1992)). We therefore
review the District Court’s interpretation of the deed de novo.
C. The Language of the Deed
On appeal, WMATA argues that the District Court erred in
interpreting the plain language of the deed as granting
Georgetown the unilateral right to widen its easement on
Fowler’s Road. Under District of Columbia law, ‘‘[d]eeds,
like contracts, are ‘construed in accordance with the intention
of the parties insofar as it can be discerned from the text of
the instrument.’ ’’ Found. for the Pres. of Historic George-
town v. Arnold, 651 A.2d 794, 796 (D.C. 1994) (quoting
Simmons v. Rosemond, 223 F. Supp. 61, 67 (D.D.C. 1963)).
If the deed’s language is unambiguous, the court need only
apply the meaning of the words. If the language is ambigu-
ous, the court must determine the parties’ intent as to the
scope of the easement in light of the circumstances surround-
ing its execution. Arnold, 651 A.2d at 796; see also Stein-
kamp v. Hodson, 718 A.2d 107, 110 (D.C. 1998). The parties
agree that there is no applicable parol or extrinsic evidence of
the parties’ intent arising from the execution of the 1895
Deed. Rather, each side argues that the deed is unambigu-
ous, but they present two competing interpretations of the
deed’s language. WMATA has the better of the argument.
This case is largely controlled by Carrollsburg v. Anderson,
791 A.2d 54 (D.C. 2002), a decision that was not considered by
the District Court because Carrollsburg did not issue until
after the trial court had rendered its judgment. Under
Carrollsburg, courts must look to the language of the deed
8
and the subsequent acts of the parties to determine the intent
of the parties with regard to the scope of an easement:
In the great majority of jurisdictions, the rule is,
that, once the location of an expressly deeded ease-
ment is established, whether by the language of the
instrument creating the easement or by subsequent
acts of the parties fixing on the ground the location
of a general grant of a right of way, the site location
may not be changed thereafter by either the owner
of the dominant estate or the owner of the servient
estate, unless both parties consent to the relocation,
excepting, however, where the document creating
the easement also contains an express or implied
grant or reservation of power to relocate.
Carrollsburg, 791 A.2d at 61 (quoting Davis v. Bruk, 411 A.2d
660, 664 (Me. 1980)).
In concluding that a servient estate condominium associa-
tion could not relocate an easement held by neighboring
property owners on its property, Carrollsburg relies on the
common-law rule of Davis v. Bruk, while noting that the
Restatement rule, allowing relocation by the servient estate
in limited circumstances, would dictate the same result. See
Carrollsburg, 791 A.2d at 63. Under the common-law rule,
neither the servient nor the dominant estate may relocate an
easement without the other’s consent once its location is
fixed. Since Georgetown, the dominant estate, is attempting
to relocate the easement, the common-law rule relied on by
Carrollsburg is fully implicated in this case. Carrollsburg
also holds that, even when the location of an easement is not
clearly defined by a deed, ‘‘the location may be subsequently
fixed by an express agreement of the parties, or by an
implied agreement arising out of the use of a particular way
by the grantee and acquiescence on the part of the grantor.’’
See Carrollsburg, 791 A.2d at 61 (quoting Taylor v. Solter,
231 A.2d 697, 701 (Md. 1967)).
It is clear from the language of the deed that Georgetown
obtained a right of passage over a particular way. The
parties do not dispute that the deed established the location
9
of the easement on Fowler’s Road, a road that existed at the
time that the deed was executed. See Appellant’s Br. at 7;
Appellee’s Br. at 7. The deed’s description of the width of
the road as ‘‘not less than twelve feet’’ did not specify the
exact boundaries of the easement. But the deed’s language
leaves no doubt that the easement referred to an existing
road, whose boundaries established the location of the ease-
ment. The deed described the road as ‘‘the private right of
way leading from the public road known as the Canal Road,
to the house of said William J. Fowler.’’ 1895 Deed, JA 20.
It stated that the road ‘‘shall remain a private right of way as
it is at present.’’ Id. This language – ‘‘as it is at present’’ –
has clear content, because it indicates that the easement was
located on an existing roadway. And neither the roadway nor
its width are in dispute in this case. In other words, the
original easement was in a clearly fixed location. Once an
easement is fixed on the ground in a particular location, such
as on an existing road, neither party can relocate it without
the other’s consent unless the instrument creating the ease-
ment clearly indicates that it may do so. See Carrollsburg,
791 A.2d at 61.
Appellee argues that the deed’s ‘‘not less than twelve feet’’
language implicitly, if not explicitly, gives Georgetown a right
to widen the easement right-of-way without WMATA’s con-
sent. See Appellee’s Br. at 26. The District Court agreed
with this interpretation in holding that Georgetown could
widen the road as long as Georgetown’s activity does not
interfere with roads on WMATA’s property. WMATA, 180
F. Supp. 2d at 142. This interpretation is superficially ap-
pealing, but it raises nonsensical possibilities. Under the
District Court’s construction, Georgetown would be free to
act unilaterally to relocate the easement to a width beyond
the 22-foot-right-of-way granted pursuant to the 1951 permit;
but nothing in the deed or the 1951 permit would prohibit
WMATA from counteracting any such unilateral action taken
by Georgetown. Thus, for example, if Georgetown paved a
36-foot-wide road without WMATA’s consent, WMATA could
unilaterally act to build property on the newly constructed
road so long as Georgetown was left with a 12-foot-wide right-
10
of-way pursuant to the terms of the deed. This makes no
sense and there is nothing in the record to suggest that this is
what the parties intended.
WMATA provides a more plausible interpretation of the
‘‘not less than twelve feet’’ language that is supported by the
terms of the deed. The third easement explicitly conferred
on WMATA’s predecessor the right to build a bridge: The
Fowlers’ right-of-way was ‘‘subject to the erection and main-
tenance of a bridge by said party of the second part across
the same.’’ 1895 Deed, JA 20. In building the bridge, it was
‘‘understood and agreed’’ that the railway company had to
leave 12 feet or more for the Fowlers’ private right-of-way.
In light of the language establishing the railway company’s
right to build a bridge, the ‘‘not less than twelve feet’’
language was clearly intended to protect the Fowlers’ right-
of-way from being narrowed to under 12 feet by the railway
company’s construction activities. The limitation on the rail-
way company’s right to build a bridge is the import of that
language. Therefore, the phrase ‘‘not less than twelve feet’’
cannot be read as the unambiguous grant of a unilateral right
to the Fowlers and their successors to expand the road
beyond 12 feet.
Appellee points to the deed’s specification of both a mini-
mum and a maximum width for the second easement as
evidence that the parties intended the width of the third
easement to be unlimited. Based on the language of the
second easement, appellee argues that had the parties intend-
ed a maximum width for the Fowler’s Road easement, they
would have explicitly identified one. Georgetown concludes
that in omitting a maximum width for the private right-of-
way, the parties intended to grant the Fowlers and their
successors the right to widen the roadway beyond 12 feet.
Appellee’s Br. at 16-17. Georgetown’s argument proves far
too much.
We find the minimum and maximum width language that is
related to the second easement irrelevant to the interpreta-
tion of the Fowler’s Road easement. The second easement,
unlike the easement in dispute in this case, provided for the
11
dedication of public roads that did not yet exist at the time of
the deed. In contrast, the Fowler’s Road easement was
defined by an existing road, to which the language of the
easement explicitly referred. While a maximum width speci-
fication was necessary to define the scope of an easement for
roads that were not yet established, it was not needed when
defining an easement that the deed located on a particular
road that was already in use. The scope of the third ease-
ment was defined by the language, ‘‘is and shall continue
always to be not less than twelve feet.’’ When referencing an
existing road, the parties did not need to articulate a numeri-
cal maximum width in order to know the parameters of the
easement.
The subsequent acts of the parties also confirm the under-
standing that the parties to the deed did not intend to grant
the Fowlers and their successors the unilateral right to widen
the road. In 1951, Georgetown asked WMATA’s predeces-
sor, the Capital Transit Company, for permission to expand
the width of the road beyond 12 feet. It was only after
Capital Transit granted Georgetown a license to build a
roadway that Georgetown paved a 22-foot-wide road on Fowl-
er’s Road. The fact that Georgetown sought the permission
of WMATA’s predecessor to expand Fowler’s Road in 1951
strongly indicates that the mutual consent of the parties was
needed to widen the easement. Indeed, it is noteworthy that
Georgetown secured only a ‘‘revocable’’ permit in 1951, fur-
ther indicating that the parties did not assume that George-
town had the right to relocate the easement without consent.
The parties’ express agreement in 1951 fixed the location of
the easement. And as noted in Carrollsburg, ‘‘continuous use
of a right of way, without opposition, may [also] fix the
location.’’ Carrollsburg, 791 A.2d at 60. Thus, in this case,
there was both an express agreement in 1951 and an implied
agreement arising out of Georgetown’s subsequent paving
and long-time use of a 22-foot road as its right-of-way. The
parties explicitly agreed to allow Georgetown to pave a road
on the WMATA property, specifying the location in a written
permit: ‘‘The location of the roadway and the location and
type of devices for the protection of our railway trestle are to
12
be in accordance with the drawing TTT which is hereto
attached.’’ Thirty-Day Revocable Permit To Cross D.C.
Transit Railway Right-of-Way, JA 53. Georgetown then
paved a 22-foot-wide road on Fowler’s Road which it has used
as its private right-of-way for approximately 50 years. These
express and implied agreements were sufficient to fix the
location of the easement under Carrollsburg. Therefore,
neither party was free to unilaterally relocate the easement
after its location was fixed by agreement. See Carrollsburg,
791 A.2d at 61.
In short, the District Court erred in holding that George-
town’s right under the deed to ‘‘free, uninterrupted, and
unobstructed use’’ of the road ‘‘forever’’ entitles it to widen
the road without WMATA’s permission. See WMATA, 180
F. Supp. 2d at 143. The cited language applies only to the
use, not location, of the easement. The District Court incor-
rectly assumed that Georgetown is free to expand the ease-
ment as it sees fit subject only to a rule of ‘‘reasonable use.’’
As noted above, under District of Columbia law, a party may
not unilaterally relocate an easement unless both parties
consent to the relocation. ‘‘Reasonable use’’ of a fixed ease-
ment does not give license to unilaterally expand or relocate a
right-of-way. See Davis, 411 A.2d at 664-65 (quoting Sakan-
sky v. Wein, 169 A. 1, 3 (N.H. 1933)).
The District Court erred in holding that Georgetown’s
proposed unilateral widening of the right-of-way is merely a
‘‘reconfiguration’’ and not a ‘‘relocation’’ of the easement.
WMATA, 180 F. Supp. 2d at 140. If Fowler’s Road is
widened by 14 feet pursuant to Georgetown’s plan, the right-
of-way will occupy substantially more of WMATA’s land than
was allowed by the 1951 permit. In other words, the bound-
aries of the new easement will differ greatly from those of the
roadway easement agreed to by the parties in 1951. This
would be an impermissible relocation of the easement.
The ‘‘location’’ of real property is defined as ‘‘the designa-
tion of the boundaries of a particular piece of land, either on
the record or on the land itself.’’ BLACK’S LAW DICTIONARY 951
(7th ed. 1999). To ‘‘locate’’ something is to set its position
13
and boundaries. AMERICAN HERITAGE DICTIONARY 739 (2d Col-
lege ed. 1982). Therefore, to set the width of a road is to
locate it, and changing the width of a road changes its
location. Other courts have held that the width of a right-of-
way is inevitably part of its boundaries or location, e.g.,
Wilson v. DeGenaro, 415 A.2d 1334, 1336 (Conn. Super. Ct.
1979), aff’d and adopted, 435 A.2d 1021 (Conn. 1980) (formally
adopting the trial court’s decision as statement of facts and
the applicable law), and that changing the boundaries of a
roadway relocates it, e.g., Umphres v. J.R. Mayer Enterpris-
es, 889 S.W.2d 86, 90 (Mo. Ct. App. 1994). We have found no
authority to the contrary, and Georgetown has pointed us to
none. Therefore, we reject the suggestion that widening an
existing 22-foot-wide road by 14 feet does not ‘‘relocate’’ it.
Finally, we reject Georgetown’s argument that the deed’s
grant of a ‘‘perpetual right to pass and re-pass over any and
all parts’’ of the property entitles it to change the second and
third easements granted under the deed. Appellee’s Br. at
22-24. Georgetown claims that the words ‘‘any and all parts’’
‘‘create one or more rights of way as TTT Georgetown de-
sire[s], subject to the single exception that such easement not
interfere with the running of the Railway Company’s railroad
or any construction thereon.’’ Id. at 22. This argument is
fatally flawed. The perpetual right to pass and re-pass
merely grants a right of access to the property; it does not
grant Georgetown a perpetual right to pave roads as it sees
fit anywhere on WMATA’s property. If Georgetown had the
rights that it now claims, it would not have sought a permit to
expand and pave the Fowler’s Road easement in 1951. If the
right to pass and re-pass were construed to permit George-
town to pave new roads and create whatever rights-of-way it
desires, then the specifications of rights-of-way under the
second and third easements in the deed would be rendered
meaningless.
Georgetown cites no authority whatsoever to support the
suggestion that a ‘‘pass and re-pass’’ provision overrides the
bounds of specific easements in a deed. Rather, Georgetown
merely cites the ‘‘pass and re-pass’’ language to suggest, as
did the District Court, that its purported right to widen
14
Fowler’s Road involves a matter of reasonable use, not relo-
cation. This argument is simply wrong as a matter of law.
‘‘Reasonable use’’ and ‘‘relocation’’ are distinct concepts, and
the former does not subsume the latter. The widening of a
road clearly relocates it. In other words, paving within the
bounds of an existing right-of-way implicates questions of
reasonable use, whereas paving to expand an existing right-
of-way implicates the rule against unilateral relocation. See,
e.g., Hayes v. Aquia Marina, Inc., 414 S.E.2d 820, 823 (Va.
1992) (permitting a dominant tenement to pave a road that
did not expand the dimensions of the existing right-of-way
easement). Davis makes clear that the dominant tenement’s
right to reasonable use of an easement does not entitle it to
use more of the servient tenement’s land by relocating the
right-of-way. See Davis, 411 A.2d at 664-65. The D.C. Court
of Appeals relied on the rule of Davis in Carrollsburg.
The Davis rule against unilateral relocation is entirely
consistent with the reasonable use cases on which George-
town relies. See Chevy Chase Land Co. v. United States, 733
A.2d 1055, 1076 (Md. 1999) (construing a grant of an ease-
ment in general terms as permitting use for all reasonable
purposes by dominant tenement); Penn Bowling Recreation
Ctr. v. Hot Shoppes, 179 F.2d 64, 67 (D.C. Cir. 1949) (allowing
easement owner ‘‘reasonable use and enjoyment of the ease-
ment for purposes of ingress and egress’’). See also Wheeler
v. Lynch, 445 A.2d 646, 648 (D.C. 1982) (holding that a grant
of an easement in general terms is available for all reasonable
uses). These cases do not hold that the right to reasonable
use of an easement trumps the common-law rule against the
unilateral relocation of an easement.
Georgetown’s proposed widening of Fowler’s Road amounts
to a change in the easement’s location rather than its use.
Therefore, we hold that Georgetown cannot widen the road-
way easement absent WMATA’s consent. The dissent agrees
with Georgetown’s position that it has the right to pave new
rights-of-way over WMATA’s entire property largely as it
sees fit. The terms of the deed, coupled with the parties’
1951 agreement, their long-standing practices, and the appli-
15
cable case law governing relocations of easements, clearly
negate this view.
III. CONCLUSION
The judgment of the District Court is reversed. The case
is hereby remanded for entry of judgment in favor of
WMATA.
So ordered.
1
RANDOLPH, Circuit Judge, dissenting: The deed states that
Fowler’s Road ‘‘shall continue always to be not less tha[n]
twelve feet in width.’’ The right to expand the road, far from
being unbounded, was subject to the rail company’s erecting a
bridge across the right of way. The spacing of the bridge
abutments – something within the company’s control – thus
set the outer limit on the width of the right of way. Further-
more, Fowler’s Road had to remain a ‘‘highway.’’
Subject to these limitations, the deed gave Georgetown the
absolute right to expand the road. There was no need for
additional language prohibiting WMATA from counteracting
such expansion. All of this makes perfect sense when one
remembers the purpose of the original transaction. The
railroad wanted land over which it could run a train line. As
long as the Fowlers did not interfere with that enterprise,
there was no reason for the railroad to care whether they
widened the right of way to two lanes or three.
Nonetheless the court holds that a right of way of ‘‘not less
tha[n] twelve feet’’ means a right of way of ‘‘not more than
twelve feet.’’
I therefore respectfully dissent.