Take Care in Drafting Easements (and other written contracts)

By:  Scott P. Fisher

In drafting easements (or any other contract, for that matter) care should be taken in drafting the specific rights and obligations granted or required as the case may be.  In light of the Appellate Court’s decision in Speedway Corp. v. Wilson Real Estate II, LLC, 98 N.E.3d 137 (2018), it may even be a good idea to brush the dust off the dictionary.  In Speedway, Speedway Corp. operates a gas station in Indianapolis on a lot it owns adjacent to a commercial development owned by Wilson Real Estate II, LLC (“Wilson”).  Pursuant to a 1962 agreement, Speedway had easement rights to a portion of Wilson’s parking lot.  Such uses included customer and delivery truck parking.  Disagreements arose between the parties (the substance of which are unimportant for this article) and the parties entered into a settlement agreement granting Speedway easement rights to use of the Wilson owned parking lot in return for certain maintenance, a payment of $25,000 and a one-time paving of the easement area.

As part of the maintenance, Speedway agreed that it was responsible “for the periodic repair of damages to said easement area caused by vehicular traffic (i.e., potholes).”  A number of years later, Wilson sought to have Speedway repaint the parking lines within the easement area which had become worn off due to vehicular traffic.  Speedway objected stating their only obligation related to potholes created by cars not painting parking lines.  Although the trial court agreed with Wilson and ordered Speedway to pay for the parking lines, the Appellate Court looked at the difference between the abbreviations “e.g.” and “i.e”.  Consulting the Merriam-Webster dictionary, the Court found that “e.g.” stands for “exempli gratia” in Latin and means “for example” and introduces one or more examples that illustrate something stated.  On the other hand, i.e. stands for “id est” which means “that is” and introduces a re-wording or a clarification of a statement that has just been made or of a word that has just been used.  The Court used an example to illustrate the difference in the sentence “the federal government’s highest judicial body, i.e., the Supreme Court” whereas “e.g.” is used as the follows: “an intentional tort, e.g. battery or false imprisonment.”

In light of these definitions and by the use of “i.e.” instead of “e.g.”, the Court concluded that the parties meant to specify exactly what was to be repaired: potholes created by vehicular traffic within the easement area and not simply one example of many types of maintenance.

While the facts of the case relate specifically to the terms of an easement, the notion that parties and lawyers need to be fully aware of the words used to convey a specific point can be expanded to drafting any written agreement.  A written contract is simply a manifestation of the meeting of the minds between the parties and the parties need to ensure that written document reflects the parties’ intentions down to the minute detail.