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Cameron v. Barton - 272 S.W.2d 40 (Ky. 1954)

Rule:

In the case of an easement appurtenant created by conveyance, determining whether additional or different uses of the servient tenement required by changes in the character of the use of the dominant tenement are permitted, the interpreter is warranted in assuming that the parties to the conveyance contemplated a normal development of the use of the dominant tenement.

Facts:

In 1931, the State Highway Department purchased the property behind the owner's lot and built a highway garage. The original owner of both parcels of property created a passway right over the owner's parcel for the benefit of the purchased lot. The previous owner used the passway as a passage for animals and products. When used later on for farming, it was also used to transport machinery and crops. However, the original deed of conveyance was lost and the precise nature of the granted easement was left unknown. The new deed merely stated that the right of passway leads to North Street, but the State Highway Department used the passway as part of its garage operations. Thus, the appellant brought suit to enjoin such usage.

Issue:

Does the normal change in the use of a general easement for a right of way constitutes an unacceptable deviation from the original grant?

Answer:

No.

Conclusion:

The court held that the passway can be used in such a manner as needed by the proper occupation of the dominant estate. It indicated that a normal change in the manner of using a passway did not constitute a deviation from the original grant. It held that “as the passage of time creates new needs and the uses of property change, a normal change in the manner of using a passway does not constitute a deviation from the original grant.”

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