by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

EASEMENTS; MERGER; EXTINGUISHMENT AND REVIVAL; COMMUNITY PROPERTY: In a community property state, "unity of title" sufficient to extinguish recorded easement occurs when title to one estate is held by an individual and title in the other estate is held by individual and his wife.

Brelliant v. Preferred Equities Corp., 918 P.2d 314 (Nev. 1996).

The owner of a purported dominant estate asserted that he was entitled to an easement for parking spaces on adjacent land. The two adjacent parcels, however, had been owned jointly by prior owners pursuant to separate conveyances, creating unity of title and extinguishing the easement. The owner claiming the easement prevailed at trial, arguing that unity of title never existed because one parcel had been conveyed to the prior owners and their wives, while the other parcel had been conveyed to the prior owners "as their sole and separate property."

Reversing, the Nevada Supreme Court noted the presumption that all property acquired during marriage is community property, and found that the evidence did not constitute the "clear and certain proof" necessary to overcome that presumption; thus, unity of title was established by the two conveyances. The court also rejected the application of Restatement of Property  497, which provides for revival of an easement by express stipulation -- not present here -- or "implications of the circumstances of the severance," which in turn requires "apparent and continuous use" and proof that the easement is necessary to the proper or reasonable use of the dominant estate. Because the court found only weak evidence of apparent and continuous use, and no evidence of necessity, it reversed the trial court's ruling for lack of substantial evidence.

EASEMENTS; TERMINATION; PRESCRIPTION: Servient owner's fencing off of motor vehicle access across easement does not extinguish recorded easement for motor vehicle access when servient owner continues to allow pedestrian and equestrian access.

Sabino Town & Country Estates Association v. Carr, 920 P.2d 26 (Ariz. Ct. App. 1996).

The case arose when defendant attempted to utilize a recorded easement across plaintiff's property for motor vehicle access to defendant's new bed and breakfast operation. Plaintiff argued that defendant's predecessor had failed to use the easement for motor vehicle access for in excess of 10 years and that plaintiff had in fact fenced the easement area, which would have made the easement unusable for that purpose. The court found that the easement area had not been needed or used for motor vehicle access, but that defendant had continued to utilize the easement for other purposes; hence, even erection of a fence was insufficient to establish plaintiff's adverse possession, as defendant (and its predecessor) had never attempted to remove (or requested the removal of) the fence or to develop the easement area for access by motor vehicles and had continued to use the easement for pedestrian and equestrian access.

Comment: Note that this is not an abandonment case; it is a prescriptive rights case. The problem was that the fence did not establish an adverse use because it was not inconsistent with the defendant's then current activities. A more permanent structure, apparently, would have established an adverse claim as to the occupied portion of the easement, even if continued access by foot and horseback were permitted.

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