Daily Development for
Thursday, May 23, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

EASEMENT; RELOCATION BY SERVIENT ESTATE: Grantor's reservation of a right to relocate an easement that does not expressly reserve the right in grantor's "heirs, successors and assigns" is personal to the grantor; and, therefore, successor owners of the servient estate do not have the authority to relocate the easement without consent of the holders of the dominant estate. Gilder v. Mitchell , 668 A.2d 879 (Me. 1995).

A prior owner of the servient estate had granted a right-of-way to a predecessor in title of the owner of the dominant estate. The deed of grant also provided: "The grantor herein reserves the right to relocate said right of way provided she does not as such relocation put the grantee to any substantial expense and does provide a right of way substantially as advantageous as the strip hereinabove defined." Grantor's successors relocated the right-of-way further away from their home at a cost of approximately $7,000. The dominant estate owner objected in part because the new right of way would be more dangerous in the winter. Despite these objections the servient estate owners closed off the old right of way. The dominant estate owner brought this action for declaratory judgment and conjunction to restore the original right of way. The trial court granted the injunction and awarded nominal damages.

As a general rule, once the location of an easement has been established it can not be changed without the consent of both the servient and dominant estate owners, absent a reservation of rights in the servient estate. The deed of grant was made in 1953, at which time the law of Maine required the use of technical words of inheritance to create an interest of perpetual duration in land. The word "heirs" was used in the grant of the right-of-way but not in the reservation of the right to relocate. The right to relocate being a reservation required words of inheritance to make it more than a life estate, i.e., to make it a right which runs with the servient estate. Therefore, the right of relocation was personal to the original grantor and did not survive her death.

Reporter's Comment: This case illustrates the importance of careful review of statutes purporting to abolish the need for technical words to create perpetual or permanent interests in land. Most states had abolished the need for technical words of limitation long before Maine did. Nevertheless, the statute may apply only to grants and not to reservations. It is for this reason, among others, that many lawyers still create estates and other interests in the [grantees], their heirs, successors and assigns, rather than rely on statutory short form language.

Editor's Comment: The case fails to distinguish adequately the precedent case of O'Neill v. Williams, 527 A.2d 322 (Me. 1987) where the court recognized that an easement reserved in an 1887 grant remained appurtenant to the grantor's estate, notwithstanding the failure to reserve the interest in the heirs of the grantor. The court acknowledged that the statute requiring use of the term "heirs" had been rigorously applied to deeds of fee interests, but elected not to apply it with equal rigor to reserved interests, stating that the rule had been recognized as unduly harsh:

This court early perceived, however, that this conceptual posture and consequent imposition of an apparently arbitrary technical requirement of the word "heirs" operated in most instances to frustrate the intention of the parties. Consequently, to give effect to the intention of the parties this court has routinely construed a provision in a deed purporting to reserve an easement for the benefit of land retained by the grantor as the creation of an easement appurtenant to that land and has obviated the requirement of the technical word "heirs" to preserve an interest of perpetual duration." (Citations omitted)

The court in Gilder concludes that, unlike in O'Neill, there was inadequate evidence of an intent on the part of the grantor to reserve an interest in perpetuity, since the reserved interest - the relocation right - was not so critical to the use and enjoyment of the benefitted land as the reserved interest had been in O'Neill. Clearly, however, the right to relocate a road is a valuable element of ownership of land subject to a right of way for that road. Further, the relocation right in this case could not be exercised except under circumstances that preserved fully the interests of the road user. In sum, it was quite valuable to the grantor's estate and not harmful to the grantee's estate. Therefore, it is difficult to discern why the court did not view it as appurtenant.

One wonders whether this case may have turned on the unfortunate use of a gender specific pronoun. If, for example, instead of using the term "she" in referring to the grantor, the drafters had used the term "it" or just the term "grantor," would the court have been less likely to accept the notion that the grantor was reserving a personal interest?

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