The owner of land, who grants a right of way over it, conveys nothing but the right of passage and reserves all incidents of ownership not granted. The owner of the servient estate may make continued use of the area the easement covers so long as the use does not substantially interfere with the easement's purpose. The owner of the servient estate may not interfere with the free and full use of the easement granted, where the owner of the easement may have an alternative route.
Appellant landowner planned to develop its property, which plans included erection of traffic control devices. This proposal required moving a sign owned by appellee store and alter ingress to property of appellees, store and easement holder. The store and easement holder filed suit to permanently enjoined landowners from constructing barriers and traffic control devices on its property. The district court granted a permanent injunction against appellant's construction of the traffic control devices. On appeal, Appellant asserted that its plan to improve the area would not interfere with the purpose of the easement of appellee easement holder, and challenged the injunction as overly restrictive and broad.
Is an implied easement valid if there was an intention to create one between parties?
The court affirmed the district court's conclusion that appellant's proposed plan created a substantial interference with the easement rights granted to appellee easement holder; however, the injunction was overbroad. It remanded the matter with instructions to modify the injunction to permit appellant to include traffic control devices that did not substantially interfere with the rights of appellee easement holder while permitting safe and appropriate use by appellant. The court also directed the district court to strike that part of its injunction that generally enjoined further transgressions of the declaration of easements. The court vacated the injunction against removal or relocation of appellee store's sign because the record did not show that appellee store itself acquired an easement by estoppel or implication.