Cox v. Glenbrook Co.

78 Nev. 254, 371 P.2d 647 (1962)

 

RULE:

The process which creates an easement necessarily fixes its extent. The extent of an easement created by prescription, is fixed by the use which created it. Likewise, the extent of an easement created by conveyance is fixed by the conveyance, if clear and unambiguous.

FACTS:

The servient estate granted the predecessor an easement over the estate to reach the predecessor's estate. At the time of the conveyance, the predecessor used his estate as a single-family residence and used a one-lane dirt road to reach the residence. There was another road through the servient estate to the dominant estate, but the servient estate blocked that road with a fence. Appellant developers obtained the estate, planned to subdivide it into 40 to 60 lots and widened the dirt road. The servient estate sought a declaration of the extent of the easement. The district court declared that the developers' easement over appellee servient estate was limited. Appellant sought review of the judgment and the court modified the judgment and remanded.

ISSUE:

Did the lower court err in ordering judicial interpretaion of the phrase "full right of use"?

ANSWER:

Yes.

CONCLUSION:

The trial court committed error in deciding that the phrase "full right of use" was subject to judicial interpretation. This error probably resulted in the restrictions placed upon the Quill Easement by the judgment entered. However, we cannot be certain that this is so. In any event, it is the court's view that the judgment is too restrictive in certain respects, incomplete in others, and premature as to a third aspect of the litigation. It's the court's purpose to point out wherein the judgment imposes unwarranted restrictions upon the possessors of the dominant tenement, to define the rights of the parties in the areas where the judgment is silent, and announce why, as to a certain phase of this case, a definitive determination cannot yet be made.

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