Daily Development for Wednesday, February 12, 2003

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; GRANT; APPURTENANT EASEMENTS: A grantee of an appurtenant easement need not own the benefitted parcel at the time the easement is created if it is the intent of the parties to benefit that parcel when the easement and title vest in one party.

Hasvold v. Park County School District Number 6, 45 P.3d 635 (Wyo. 2002).

Davis was a an owner and officer of a corporation. He desired that the corporation have an easement across property owned by the Ellises. He arranged for the Ellises to convey the easement to the corporation. At the time the easement was conveyed, however, the corporation did not own the property that the easement was to benefit. Davis did. Davis subsequently transferred the property to the corporation.

Subsequently the corporation transferred the property to Rosencrause, and thereafter the servient owner objected to Rosencrause's use of the easement, claiming that the benefit of the easement did not run to Rosencrause because the easement was personal to the corporation. The servient owner contended that no appurtenant easement can be created when the grantee of the easement is not the owner of any benefitted property at the time of the transfer.

The court concluded that the fact that the corporation did not obtain title to the benefitted property until some time after it obtained the easement did not, under the circumstances, necessarily lead to the conclusion that the easement was not appurtenant. The transfer of the easement appeared to be part of an overall transaction in which the title to the benefitted parcel also would be transferred to the dominant owner, and indeed this is what happened.

Other facts in the case led the court to remand for a factual determination of whether in fact the parties intended to create an easement appurtenant.

Comment: The court cites to Section 4.1 of the Restatement of Servitudes for the point that the intent of the parties must control the court's conclusions as to the purposes of any servitude. The court states that the Restatement is "consistent with Wyoming case law." Interestingly, however, the court g also quotes the following section of the Restatement:

Sec. 4.5(1) Except where application of the rules stated in Sec. 4.1 leads to a different result, the benefit of the servitude is:

"(a) appurtenant to an interest in property if it serves a purposes that would be more useful to a successor to a property interest held by the original beneficiary of the servitude at the time the servitude was created than it would be to the original beneficiary after transfer of that interest to a successor."

Note that the court apparently concluded that the exception "except where application of the rules stated in 4.1 leads to a different result" indicates that an appurtenant easement can arise where the parties' overall intent is to create an appurtenant easement even when the beneficiary does not hold a "property interest . . . at the time the servitude was created." It noted that the original Restatement of Property expressly permitted the creation of appurtenant easements when the grantee had yet to obtain the property, even in cases where the property in question had yet to be identified.