Thurston Enters. v. Baldi - 128 N.H. 760, 519 A.2d 297 (1986)

Rule:

An easement grants only a nonpossessory interest in land, that is, a limited right to use but not possess the conveyed land. The grantee of the easement, who is the possessor of the dominant estate, must use the easement reasonably, so as not to damage the possessory interest of the grantor, who is the possessor of the servient estate upon which the easement lies.

Facts:

Plaintiff Thurston Enterprises, Inc. operated a marina. Defendant Lawrence Baldi operated a movie theater. Defendant sold part of his land to plaintiff. Although an alternative access was subsequently created, defendant deeded plaintiff an easement across the theater. Plaintiff began using the easement to truck fill into his parcel. The heavy trucks caused damage to the easement and the surrounding area and defendant blocked the easement. Plaintiff petitioned to enjoin defendant from blocking the easement. Defendant counterclaimed for permanent revocation of the easement. The master concluded that, at the time of the conveyance, neither party contemplated such extensive use of heavy trucks. The master found that plaintiff had caused the destruction of the surface and subsurface of the right of way by using the easement unreasonably and by enlarging upon the granted easement. Accordingly, he ordered plaintiff to repave the right of way. The master also found that defendant was not entitled to a revocation of the easement, nor could defendant insist that plaintiff use the new, alternative access. Both parties appealed. 

Issue:

1. May the plaintiff still use the easement, in light of the alternative access? 
2. Did the defendant have the duty to subsidize the improvements to be made to the right of way? 

Answer:

1) Yes. 2) No.

Conclusion:

The court initially held that the repair orders looked to remedy the effects of past conducts; thus, they should be vacated. In the present circumstances, reparation was not the same as restitution, and the parties must be allowed to litigate the damage issues in the severed action. In answering the issue of whether the plaintiff may still use the easement, the court noted that the parties in this case created an express easement by deed. Thus, plaintiff’s easement remained even after the necessity passed. However, the court held that the improvements to the right of way must be paid for solely by the plaintiff, as defendant would receive no benefit from the improvement. According to the court, if the grantor of a right of use has not even the duty to maintain, he certainly has no duty to subsidize.