Daily Development for Friday, October 26, 2001

Daily Development for Thursday, October 11, 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; TERMINATION; ABANDONMENT: A conditional easement is not automatically terminated upon the mere non-use of the easement for its purpose, rather an intention to abandon must be evidenced by the dominant tenement owner.

450 West 14th St. Corp. v. 40-56 Tenth Ave. L.L.C., 724 N.Y.S.2d 273 (Sup. 2001).

An easement for passage for 'so long as the business of dealing in food products is conducted on the premises' was not automatically terminated when the premises was sold by a food products company to a realty company. Despite the fact that the premises remained vacant for approximately two years, the court ruled that the easement would only be terminated upon evidence that the owner of the premises intended to abandon all rights to the easement, such as would be evidenced by a change in use.

Comment: Note that the language of the condition would suggest a "fee simple determinable construction," with the interest of the grantor of the easement being a possibility of reverter, which would take effect immediately upon the happening of the condition. The court elected not to adopt this view of the situation, and instead applied the law relating to abandonment of easements.

It is not impossible for an easement to be created subject to the common law estates concepts, but of course modern courts want to avoid forfeitures where possible, and here the court indulged in the assumption that the parties intended simply that the standard "abandonment of easement" doctrine would apply.

EASEMENTS; TERMINATION; ABANDONMENT; PUBLIC RIGHTS OF WAY: Failure to maintain a public highway for the statutory adverse possession period does necessarily result in an abandonment. Smigel v. Town of Rensselaerville, 725 N.Y.S.2d 138 (A.D. 3 Dept. 2001). Once a highway exists, it shall be presumed to continue until proven otherwise. Despite the fact that a municipality has failed to maintain such public highway for more than twenty years, the presumption in on continuation.

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

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