Daily Development for Tuesday, November 27, 2001

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

EASEMENTS; CREATION; IMPLICATION; ANNEXATION: Although a grantor does not state in the deed that the parcel conveyed is benefitted by an easement, courts may infer from other circumstances that an easement right is intended when the parcel abuts other property to which the grantor had earlier granted an appurtenant easement.

Martin Drive Corp. v. Thorsen, 2001 WL 1392637 (Conn. App. 11/13/01)

Over several decades, Francis Martin conveyed several adjacent parcels to his son, Philip. In 1963, he conveyed Parcel F, granting an express easement right over an improved road known as Martin Drive, which Francis owned and which apparently provided access to certain other properties as well. In 1975, Francis Martin conveyed to Philip Parcel H, which abutted Parcel F and Martin Drive. Francis also included in this deed an express easement over Martin Drive. In 1991, Francis Martin conveyed to Philip Parcel C. This parcel abutted Parcel F, but did not abut Martin Drive. The deed made no mention of Martin Drive, but did create an express easement in Rock Road, which was an unimproved access way on the other side of Parcel C.

Philip Martin apparently occupied one residence located on the property formed by his three parcels. The residence (probably) was located on a part of Parcel F, and he used Martin Drive for access.

Later, Francis Martin died and Martin Road was sold to others. Then Philip Martin sold his three lots to Thorsen. Thorsen resubdivided the three lots into two building lots. One of the lots apparently contained the existing residence, and the other consisted of Parcel C and a portion of Parcel F. The reconfigured lot abutted Martin Drive on the part that had been Parcel F.

The current owners of Martin Drive objected to the use of Martin Drive from the reconfigured lot. As a consequence, Thorsen lost a deal to sell that lot, and sued to quiet title. The trial court found that the use of Martin Drive from the reconfigured lot would be a surcharge of the easement, since it benefitted property other than that to which the easement was appurtenant.

On appeal: Held: Reversed. The Connecticut appeals court noted prior authority that had concluded that the scope of an easement is based primarily upon the probable intent of the parties, and that it is possible to create a benefit "subject to open" - making it possible for additional properties to be added to the appurtenant property and still enjoy the easement.

Here, the court noted at the time of the transfer of Parcel C, Rock Drive, although a sufficient access to prevent any conclusion that a traditional easement by implication could arise, was nevertheless a very inconvenient way for Philip to get to Parcel C. Further, there was a reference on the map through which Parcel C was identified that indicated that Parcel C had been "conveyed to" the other two parcels already owned by Philip, suggesting that it was the intent of Francis to annex that parcel to the other two that he had earlier transferred to Philip so as to make them one lot benefitted by the Martin Drive easement.

Because the resubdivision of the property, by this analysis, amounted to no more than the division of an entire parcel that was entirely appurtenant to Martin Drive, the fact that the result would lead to a moderately increased usage pattern on Martin Drive was not objectionable to the court. The usual rule is that the scope of an appurtenant easement can expand over time consistent with the foreseeable uses to which the appurtenant parcel will be put.

Comment 1: The opinion makes sense, as an interpretation of Francis' probable intent, but there is some question as to whether it is fair to make such an interpretation after the easement has passed from Francis' hands.

Clearly there was very little in the chain of title that would suggest to the owner of Martin Drive that the easement rights could expand beyond the original lots. That owner would not necessarily have been familiar with the family relationship of the various historical figures or the condition of Rock Road at the time Parcel C was transferred, both factors that were influential to the court. It is possible that an examiner of the Parcel C chain of title might have found the reference in the map showing Parcel C to the fact that the Parcel was "conveyed to" the other two lots, but there would have been no reason for someone tracking down the ownership of Parcels H and F, the expressly appurtenant parcels, to examine the chain of title of Parcel C.

Comment 2: Although the record did not suggest the relationship, however, it did disclose that use of Martin Drive was permitted to the owners of Parcels H and F, and this is only a modest tinkering with the scope of the rights of those owners. A more significant issue might arise if Parcel C had been appurtenant to Martin Drive itself (but no easement had been created), had been sold off separately, and the owner of that Parcel demanded access to Martin Drive. But we can cross that little road when we come to it.

Comment 3: The court goes into a little song about how it is doing nothing more than interpreting the easement according to the intent of the grantor of the easement. But there is little to show that the grantor, at the time of the transfer of Parcels H and F, really ever intended that Parcel C would be added to Philip's ownership. Remember that those parcels had been transferred over the preceding 20 years. The court's focus is on Francis' intent at the time of the transfer of Parcel C - in short it is saying that at that time Francis implicitly and silently modified the scope of the easement to include Parcel C. Even granting that there is little real harm resulting here, isn't this a stretch?

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.

ABOUT DIRT:

DIRT is an Internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 ‑ 10 messages per workday.

Daily Developments are posted every workday.

To subscribe to Dirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Subscribe Dirt [your name]

To cancel your subscription to Dirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Signoff Dirt

For information on other commands, send the message Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses specifically upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named "Brokerdirt." But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to Brokerdirt, it is not necessary also to subscribe to DIRT, as Brokerdirt carries all DIRT traffic in addition to the residential discussions.

To subscribe to Brokerdirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Subscribe Brokerdirt [your name]

To cancel your subscription to Brokerdirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Signoff Brokerdirt

DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors.

DIRT has a WebPage at: http://www.umkc.edu/dirt/