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Property II
South Texas College of Law Houston
Moore, Shelby A. Dickerson

Moore-Property II-Fall 15
XVIII. Express Easement: Classification, Manner & Creation
A.    Northwest Reality v Jacobs – Ted and Olive Jacobs purchased two lots on either side of a ditch. When the property owners (Ted and Olive Jacobs) filled a portion of the ditch, a realty company (Northwest Realty) which was a successor to the company which dug the ditch claimed fee title to the ditch and filed an injunction seeking to have the owners (Ted and Olive Jacobs) remove the fill dirt. A judgment was rendered in favor of the realty company and the owners sought review. The court determined by examining the original conveyance that only a right of way easement was conveyed and not a fee title. Therefore, the realty company did not own the fee title to the ditch. The judgment of the trial court was reversed.
                        RULE: If a deed is ambiguous about whether the interest conveyed is a fee simple or an                                       easement, the ambiguity is resolved by:
·         the amount of consideration
·         the particularity of the description of the property
·         any limitation of use of the property
·         the type of interest which best serves the objective intent of the parties
·         the language of the instrument of transfer
·         who bears the burden of paying property taxes
·         and how the parties or their successors have treated the property.
B.     Greaves (dominant, appellant) v McGee (servient, appellee) – A dispute over mineral rights underneath a roadway, McGee and Lamar County Commision filed a complaint for a declaratory judgment argues that the conveyance of property in a fees simple interest included the roadway. Court of Appeals ruled no, conveyance was a fee simple; Greaves & Lamar County lost.
                        RULE: To determine whether an easement is created, courts must examine the entire instrument                           as a whole, the circumstances surrounding the creation of the interest, and the subsequent actions                         of the parties.
C.     Hurst v Baker – Hurst, owners of 40 acres brought action asserting they had a FSI in the roadway crossing a 54 acre division owned by Baker.
                        RULE: (1) If the intent to grant an easement or a fee simple is clear by the express terms of the                            deed, that intent will be given effect without resorting to technical rules of construction. (2)                                 Courts must construe deeds as conveying the grantor’s entire interest in the land unless a clear                              limitation is expressed.
XIX. Express Easements: Interpretation and Extent
            Introduction: The court’s primary goal is to effectuate the party’s intent with respect to the purposes for             which the easement was created. If the document is well drafted and unambiguous, the intent effectuated             increases and litigation decreases. Questions regarding the scope of an easement:
1.      Length, width, and location (if no fixed length, court construes easement as is reasonably necessary to effect the purpose of the easement)
2.      Types of uses authorized (use of an easement for purposes other than those expressly authorized is a trespass)
3.      Frequency and intensity of uses (again, use other than contemplated is a trespass) Courts may consider policy; whether the public’s benefit in increased use overburdens the SE: ie; Best use of property/ Courts 1st look at express language, 2nd if the increase is a normal and expected increase, 3rd subsequent actions of the parties
4.      Whether easement can be relocated by one of the parties; can’t be unilaterally relocated
5.      Whether the easement holder can use the easement to benefit property other than the original dominant estate; general rule is the SE cannot use or permit the use of an easement when such use was not intended at the time of creation. Use is misuse and trespass
6.      Party’s maintenance and repair rights and obligations; the easement owner has a right and duty to maintain and improve the easement as long as such does not infringe on the SEH’s right of use and enjoyment. The SEH may use the property in whatever manner he chooses, as long as it does not hinder the use of the easement.
7.      Other’s use of the easement; SEH may allow 3rd parties to use the easement as long as such use does not hinder the use of the DEH.
            Factors that determine party’s intent:
1.      Whether the easement was granted or reserved. Reserved easements are generally interpreted restrictively because ambiguities in a deed are construed against the grantor.
2.      The amount of consideration if any, that the original beneficiary gave for the easement. A substantial consideration favors the beneficiary
3.      Prior use of the land, because a certain use before the easement was created may suggest a continuation of the use was contemplated by the original parties.
4.      Subsequent conduct of the parties. A certain use implies that such use was contemplated he by the parties.
A.    Brown (plaintiff) v Voss (defendant) – Ps brought action to remove obstructions placed on easement that obstructed their use. The reason they blocked was because Ds built a house on another parcel of land not included in the original deed, and used the easement.
                        RULE: Even though a technical misuse of an easement ensues from a DEH actions, as long as                              there is no increase in burden on the SEH, court will deny an injunction that would prevent                                  DEH’s use of easement.
B.     MPM builders v. Dwyer – Dyer owned an easement cutting across MPM’s land. MPM wanted to subdivide the parcel into 7 lots, and since Dwyer’s easement cut into 3 of them, offered to relocate the easement. Dwyer did not want the easement moved. Dwyer lost, because he did not establish a burden. Although Dwyer correctly stated that the majority of jurisdictions require bilateral consent to move an easement, RS3rd, §4.8 maximizes the utili

ment appurtenant because none of the members own adjoining property, so the easement is in gross, and P’s claim is non-transferable. Normally this would be true because an easement in gross is a personal interest and is not transferable unless expressed otherwise in a conveyance. Here, the EiG is transferable because of the commercial interests; cattle are raised for profit, so it stays with the land.
D.    McINtosh v Huggins – M bought property adjacent to Fish property. When M sold partial property to Huggins he reserved an easement going through Fish and also a side agreement that Huggins could not interfere with development of the sold property. Huggins brought action to reject the easement. RULE: an easement in gross in transferable if the parties intended for it to be so.
XXI. Express easements: Termination and Extinguishment
            Introduction: Easements may be perpetual, but it is likely that an easement will be extinguished by:
1.      TERMS. A written agreement can end the easement when:
·         time, and that time has ended
·         purpose, and the purpose had either been accomplished or can no longer be accomplished.
A.    Pavlik v Consolidation Coal – the interpretation of a defeasance clause in a conveyance of an easement for the purpose of moving coal slurry brought action against CC when they ceased operations of moving the slurry, but rather kept the pipeline in a “ready” position. Terms of the agreement stated if the pipeline remained inactive for 1 year the easement would be extinguished. CA held that when the pipeline was deactivated, the defeasance clause should be given its intended effect.
2.      Changed Circumstances: where easement has become unreasonably burdensome, obsolete, or wasteful. BOW: OR court has decided SE’s property rights need to be protected (disfavor DT rights to benefit the SE rights
3.      Release: a formal written agreement whereby the easement holder relinquishes his interest in the easement. The writing must meet the SoF.
4.      Abandonment: The DT must
·         Intend to relinquish the easement
·         Engage in unequivocal conduct manifesting the intent to abandon
·         NON USE, no matter how long, is insufficient to extinguish the easement
·         Affirmative conduct inconsistent with an intent to continue using the easement
5.      Misuse or overuse:
·         The easement holder can terminate the easement by improper exercise of his rights