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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 Deputy 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-ininterest. The deed conveying the property reserved an easement for the Fowlers and their successors for a private rightof-way of ‘‘not less than twelve feet in width.’’ It is undisputed that, at the time of this conveyance, the private right-ofway 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 denied summary judgment to WMATA, holding that nothing in

the language of the deed prohibits Georgetown from unilaterally 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 judgment, 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 property 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-ininterest, obtained the property by deed for $1750.00 from

William J. and Barbara Fowler, Georgetown’s predecessorsin-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; provided, only, that the exercise of the said several

rights hereby reserved shall not interrupt nor interfere 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 assigns 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 Company 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 Georgetown to build the proposed roadway. See Thirty-Day Revocable Permit To Cross D.C. Transit Right-of-Way, JA 53-54.

Pursuant to the permit, Georgetown paved a road that measured 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 Architect for Georgetown University, informed the General Manager of WMATA in writing of Georgetown’s interest in purchasing 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 Management, 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 condition. 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 declaratory 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 language of the deed’’ granted Georgetown ‘‘the right to undertake 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 Columbia, 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 District 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 contract 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 considered 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 Georgetown 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 ambiguous, the court must determine the parties’ intent as to the

scope of the easement in light of the circumstances surrounding its execution. Arnold, 651 A.2d at 796; see also Steinkamp 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 unambiguous, 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 easement 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 association 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 easement. 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 easement 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 consent. 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 appealing, 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 maintenance 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’ rightof-way from being narrowed to under 12 feet by the railway

company’s construction activities. The limitation on the railway 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 minimum 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 intended 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-ofway, 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 interpretation 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 specification 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 easement 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 numerical maximum width in order to know the parameters of the

easement.

The subsequent acts of the parties also confirm the understanding 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 predecessor, 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 Fowler’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, further indicating that the parties did not assume that Georgetown 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 Georgetown’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 incorrectly assumed that Georgetown is free to expand the easement 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 easement does not give license to unilaterally expand or relocate a

right-of-way. See Davis, 411 A.2d at 664-65 (quoting Sakansky 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 rightof-way will occupy substantially more of WMATA’s land than

was allowed by the 1951 permit. In other words, the boundaries 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 designation 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 College 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-ofway 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 Enterprises, 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 desire[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 Georgetown 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 relocation. 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 rightof-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 Georgetown relies. See Chevy Chase Land Co. v. United States, 733

A.2d 1055, 1076 (Md. 1999) (construing a grant of an easement 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 easement 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 roadway 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. Furthermore, 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.