The easement in this case was granted to serve Thars, who at the time of the grant held a leasehold interest in the benefitted property. Later, Thars acquired fee title to the leasehold. Still later, they leased the property to a third party, who commenced using the easement. The servient tenant objected on the ground that the original easement was in gross to the Thars, not appurtenant to any property, and therefore was not assignable under Wyoming law. The Thars responded that the easement was a commercial easement, and therefore assignable even though in gross.

The Wyoming court clearly was not anxious to tackle the question of whether to reject the old common law rule restricting the assignability of easements in gross, and further was unwilling to try to decide what easements did or did not have commercial significance. It did comment that parties would be wise to provide expressly in the granting instrument whether easement rights are assignable.

Here, however, the court states that the easement was "granted to serve leased lands, not to serve lands held in fee." Consequently, citing cases from other jurisdictions, it holds that the easement disappeared when the estate it was created to serve disappeared - by merger into Thars' fee simple estate.

A strong dissent points that the trial court had determined that this was an easement in gross, and that the supreme court decision doesn't really counter that conclusion. The dissent further points out that all the authority cited by the majority deals with extinguishment of easements appurtenant. The dissent would have adopted the Restatement rule that easements in gross "of a commercial nature" are alienable.

Comment 1: The dissent's argument is well taken. At least the majority should have acknowledged that it was disputing the trial court's conclusion that the easement was in gross, and should have explained why it was doing so.

Comment 2: The old rule against assignability of easements in gross was designed to prevent "novel incidents" from unduly tying up the use of property. This is a useful concept, but it no longer makes sense to view an easement in gross as "novel" and subject to special treatment for that reason alone. In our modern world, where we recognize all manner of assignable subtypes of property interests, does it make sense to apply a rule that assumes certain category of rights - easements in gross - is not assignable? Doesn't it make much better sense to assume assignability unless it is clear that the interests created are personal - whether or not such interests are commercial in nature?

Compare: Cotsifas v. Conrad, 905 P.2d 851 (Or. Ct. App. 1995). (An express easement is not terminated when there is a termination of original necessity that motivated the parties to create the easement.)

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