O'Donovan v. McIntosh - 1999 ME 71, 728 A.2d 681

Rule:

Whenever possible an easement is construed to be appurtenant to the land of the person for whose use the easement is created, thereby ensuring that the easement is alienable.

Facts:

Appellant property owner held an easement in gross over property owned by appellee. Appellant property owner conveyed the property to appellee by warranty deed, reserving the easement for access to an adjacent parcel of land belonging to the appellant. Thereafter, the appellant property owner entered into a purchase agreement of the easement to appellant purchaser. Appellant purchaser filed a complaint seeking a declaratory judgment concerning his right to purchase and sell the easement. Appellants moved for summary judgment on the ground that the easement was transferable. Appellee objected and filed a cross-motion for summary judgment. Appellee argued that the easement was not assignable. The trial court agreed and granted appellee's motion. Appellants challenged the decision.

Issue:

Under the circumstances, was the easement in gross assignable? 

Answer:

Yes.

Conclusion:

On appeal, the court held that the easement was assignable because the parties clearly expressed that intent in the language of the deed. According to the court, the conclusion that an easement in gross was assignable when the parties intend was consistent with the general policy of favoring the free alienability of property. Accordingly, the court reversed the judgment in favor of appellee.