Hasvold v. Park County Sch. Dist. No. 6 - 2002 WY 65, 45 P.3d 635

Rule:

Certain terms are "badges" of an appurtenant easement, including language which indicates that: (1) the easement was created to benefit a specific tract of land; (2) the grant was for a perpetual right-of-way for ingress and egress, (3) the grantee has the right to inspect and maintain the easement; (4) the right is not limited to the possessor personally; (5) the grant expressly extends the right to the grantees, their heirs, executors, administrators, successors, assigns and legal representatives; and (6) the easement document does not contain any limitations on the transferability of the easement to future transfers of both the dominant and servient estates.

Facts:

This case involves two identical easements across the Hasvold property in Cody. The dominant estates are owned by Rosencranse and the School District. The Hasvold property is located directly east of the Rosencranse property and directly north of the School District property. Originally, the Hasvold, Rosencranse, and School District properties were all owned by William and Marie Ellis. In 1986, the Ellises conveyed the Rosencranse property to George and Frances Kramer. George Kramer apparently died shortly thereafter; and Frances, subsequently, conveyed the property to their son, Donald Kramer. On August 5, 1987, the Ellises conveyed an easement over the Hasvold property to Tall Oak Tree, Inc., a company that Donald owned and was an officer of. On August 20, 1987, Kramer conveyed the Rosencranse property to Tall Oak. Tall Oak mortgaged the property to the State of Wyoming, the Small Business Administration, and Western Bank of Cody. The Small Business Administration apparently took title to the property at some point and then conveyed it to Rosencranse in 1993. The deed from the Small Business Administration to Rosencranse did not expressly mention the easement. Regardless, Rosencranse and her lessees used the easement across the Hasvold property for business purposes. The School District took title to its property by warranty deed from the Ellises in 1982. The deed expressly granted the School District an easement across the Hasvold property for ingress, egress, and utilities. The School District constructed a middle school on its property and began holding classes in the school in 1994. The Ellises apparently conveyed the Hasvold property to the Deme Company, and the Deme Company conveyed it to the Hasvolds in 1996. The Hasvolds' warranty deed from the Deme Company expressly stated that the conveyance was subject to the easements of public record or otherwise established. In March 1999, the Hasvolds filed a complaint, requesting that the district court terminate the appellees' alleged easements over their property. The Hasvolds alleged in their complaint that Rosencranse was wrongfully using their property and that the School District had abandoned its easement. The district court ruled that the undisputed evidence showed that the School District has used its easement over the Hasvold property in recent time and that such use defeated the Hasvolds' claim that the School District had abandoned its easement. The district court also ruled that Rosencranse owned a valid easement appurtenant for ingress, egress, and utilities over the Hasvold property.

Issue:

Does the grantee of an easement have to own the dominant estate at the time the easement is granted in order for it to be appurtenant?

Answer:

No.

Conclusion:

The fact that Tall Oak did not own the dominant estate when the easement was conveyed does not, by itself, dictate that the easement cannot be interpreted as being appurtenant to the land. The ultimate determinant of whether an easement is appurtenant or in gross is the intent of the parties to the easement. The easement document in this case incorporates some of the "badges" of an appurtenant easement, but there are others that are noticeably absent. The easement document is sufficiently ambiguous to require the inspection of extrinsic evidence to determine whether the parties to the conveyance intended for the easement to be appurtenant or in gross. Evidence was presented at the summary judgment hearing suggesting that the easement was created to benefit and does benefit the possessors of the Rosencranse property in their use of the property. Thus, the district court erred in granting summary judgment in favor of Rosencranse.