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Law School Case Brief

Green v. Lupo - 32 Wash. App. 318, 647 P.2d 51 (1982)


Easements appurtenant become part of the realty which they benefit. Unless limited by the terms of creation or transfer, appurtenant easements follow possession of the dominant estate through successive transfers. The rule applies even when the dominant estate is subdivided into parcels, with each parcel continuing to enjoy the use of the servient tenement. Such easement is appurtenant to the property and assignable to future owners of that property.

It is the duty of a court, in construing an instrument that creates an easement, to ascertain and give effect to the intention of the parties. The intention of the parties is determined by a proper construction of the language of the instrument. Where the language is unambiguous other matters may not be considered. Where the language is ambiguous the court may consider the situation of the property and of the parties, and the surrounding circumstances at the time the instrument was executed, and the practical construction of the instrument given by the parties by their conduct or admissions. 


The plaintiffs, Don Green and his wife Florence, were once the owners of an entire tract of land. The defendants, James P. Lupo and others, purchased the parcel of land from the spouses Green by real estate contract. The Greens retained several acres located south of the property of Lupo. While Lupo was still paying for the land based on their contract, they requested a deed release to a small section of the north tract to allow financing for the construction of a home. The Greens agreed in return for the promise of an easement along the southern 30 feet of the north tract when the defendants eventually obtained title. The express terms of the promised easement were contained in a written agreement which was executed in the form required for the conveyance of an interest in real property.  The Greens’ developed their land for mobile home occupancy, which caused tension between the landowners. Apparently some of the occupants of the Greens’ mobile home development used the easement as a practice runway for their motorcycles. When the defendants obtained title to the north tract, they refused to formally grant the easement as promised. They also placed logs along the southern boundary of the easement to restrict access from the Greens’ property. Because of this, the Greens brought an action to obtain specific performance of the promise to grant an easement and to enjoin any interference with their use of the easement. Evidence was admitted describing a single-family cabin or residence built by or for the Greens in the northeast corner of the Greens’ tract. It was defendants' contention, and they so testified, that the purpose of the easement was to serve the Greens in their personal use and occupancy of this cabin or home. They claimed the easement was not intended to serve the Greens' entire tract, part of which had been developed as a mobile home site, and which had access by other existing roads. The trial court concluded that an easement was granted for the use and benefit of the Greens alone and could not be assigned or conveyed. The court ordered the Greens' use to be limited to ingress and egress for their own home or cabin and prohibited the passage of motorcycles. The Greens appealed the judgment of the trial court.


Did the trial court err in its decision to consider the easement personal?




The court held that the trial court erred because the evidence did not support its determination that the easement was personal. The court found that evidence of an appurtenant easement outweighed the evidence of a personal easement. The court noted that there was a strong presumption against personal easements in Washington. According to the court, the trial court abused its discretion when it enjoined all motorcycle traffic on the road created by the easement because it did not properly consider the ban's effect on the easement holders' use of the easement and because the ban unreasonably interfered with their use of the easement.

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