DIRT Development for Thursday, August 14, 2009
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri
EASEMENTS; CREATION; IMPLIED EASEMENT; INTENT OF GRANTOR: Landowners do not, as a matter of law, have an implied over a strip of land conveyed to railroad, notwithstanding existence of grantor’s long standing preexisting use, which continued after the conveyance, when the intent of the original grantor who conveyed the strip is in dispute.
Connolly v. Maine Central Railroad Co., 969 A.2d 919 (Me. 2009).
The original grantor deeded a strip of land on which a railroad track was later constructed to the defendant's predecessor. Although the conveyance created a complete bisection of the grantor's property, the deed did not reserve any rights of the grantor to cross the railroad track. Subsequent owners of the original grantor's property regularly crossed the railroad track to access the southerly portion of the property.
The current owners of the original grantor's property filed a complaint seeking a declaratory judgment that they possessed a perpetual right-of-way over the strip. The trial court entered summary judgment in favor of the current owners, holding that they possessed an implied easement as a matter of law, based upon the preexisting relationship between the parcels. This appeal followed.
The Supreme Judicial Court first stated that an implied easement is created when a common grantor severs real estate, conveying part of it and retaining the balance, and the circumstances at the time denote the grantor's intent to subject the conveyed land to an easement benefitting the retained land. Because the intent of the common grantor was in dispute, the court held that summary judgment should not have been granted. While a fact-finder would be entitled to infer the requisite intent from the circumstances of the conveyance, such intent could not be inferred as a matter of law.
Although the existence of a preexisting use is not much discussed in the case, it appears to have been present and the court takes for granted that it would meet the necessary test. It is the intent of the grantor that is the issue.
Reporter’s Comment: As this case illustrates, it is difficult for implied easement cases to be resolved at the summary judgment stage. Especially where the grant occurred long ago, the intent of the original grantor often cannot be established as a matter of law.
Editor’s Comment: What is critical, of course, is not only the intent of the grantor, but the reasonable understanding of both parties with respect to the existence of an implied easement. Typically this is supplied by evidence of a “quasi easement” - an established pathway crossing the granted or retained parcel that is of reasonable necessity and suggests that the parties assumed that this access would continue. Both sides would view this as a probable fact unless the existence of an implied easement was denied in the instruments. The “quasi easement” was apparently present here, and was used for decades thereafter, but nevertheless the court thinks further evidence is appropriate.
But, of course, an easement for railroads is of a distinct class. It might very well be that the railroads expected that there would be no crossing of the tracks except at designated locations, and communicated that fact to their grantors, and the editor agrees that, in the special case of railroads, perhaps further inquiry is warranted.
This case should not be read to suggest the plaintiff must come up with proof intent in every case, even though there is no evidence of intent other than physical evidence of continued use that is reasonably necessary. So in some cases summary judgment will be appropriate.
The Reporter for this case was Mort Fisher of the Ballard Spahr Baltimore office.
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