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

EASEMENTS; TERMINATION; MERGER: Party must show that all of the dominant and servient estates had been vested in one owner in order to support conclusion that merger had terminated the easement.

Will v. Gates, 680 N. E. 2d 1197 (N.Y. 1997).

The Plaintiffs brought a declaratory judgement action seeking access to a right to a right-of-way over Defendants' properties. The Defendants argued that the Plaintiffs' interest in the easement was extinguished by merger when one of the Defendants, who already owned the property consisting of the servient easement, acquired another parcel of land that constituted one of the dominant estates in the easement. Lower courts had held that the Plaintiffs' interest in the easement had been extinguished through abandonment. The New York Appellate Division affirmed, but for a different reason, holding that any rights Plaintiffs might have had in the easement had been extinguished by merger, and therefore did not reach the abandonment issue.

On appeal, held: Reversed: The Court of Appeals of New York found that Defendants were not entitled to summary judgement as there was no proof that *all* of the dominant and servient estates had vested in one owner. Plaintiffs owned another dominant parcel that had never been in the ownership of the holder of the servient parcel since the original subdivision that created the easement.

Comment 1: The ruling is "black letter law" and it is frankly surprising that it was necessary for the Court of Appeals to instruct the Appellate Division on such a fundamental point. Even if the judges didn't know the law, one would hope that their clerks had taken a basic law school course in which this rule was developed.

Comment 2: The factual circumstances here make the case more interesting from a human interest standpoint, but it is likely that there is not enough money at stake for us to observe the fortunes of these contending landowners in future appellate decisions.

Here are the facts:

The easement in question consisted of a horshoe shaped roadway. The northern leg of the horshoe had been developed into a road. The southern leg had not, nor had the piece joining these two legs. The joining piece crossed over Defendant's land - the original homestead, subdivided in the nineteenth century when the easement was platted. The southern leg crossed over Plaintiff's land. Defendant acquired the parcel on the other side of the northern leg, so owned both a dominant parcel to the joining as well as the servient parcel. Defendant then sold the southern piece of his property (adjacent to the undeveloped southern leg) in a transaction in which Defendant and Defendant's grantee mutually waived any interest in the joining piece of the easement. The result restricted the grantee from reaching the northern leg, which had already been developed into a road, and forced that grantee to develop access over the southern leg, which crossed over Plaintiff's property. Despite Plaintiff's protestations, and litigation resolved at the appellate level, the grantee prevailed in prior litigation and obtained the right to build the southern road.

The court indicates that the Plaintiff here "allegedly" has an interest in developing his property in such a way as to use the joining piece. One might be tempted to conclude, however, that the court sees this lawsuit as an attempt by the Plaintiff to wreak revenge on the Defendants by opening up the joining piece in the same way that Defendants had opened up the southerly leg of the easement across his property.

It would be interesting to see if this perception of the case comes out more clearly in any subsequent appellate discussions of the issue. But, as indicated, it is likely that economics will dictate an end to this litigation before more opinions are written.

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 Stacy Woodward at the ABA. (312) 988 5260 or woodwars@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA. Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.