Easements in gross are not favored, and an easement will never be presumed to be a mere personal right when it can fairly be construed to be appurtenant to some other estate.
Martin and Music entered into an agreement which gave Martin the right to construct and maintain a sewer line under and through Martin’s property lots located in Kentucky. At the time the agreement was executed, the eight lots owned by Music were unoccupied, except for a garage building used by Music for the vehicles operated by him in his business as a bulk distributor of oil and gasoline. Upon the execution of the agreement, Martin constructed his sewer line at a sufficient depth in order to avoid interfering with Music’s use of the property. Music then sold six of his eight lots after the line was constructed, and the buyers obtained and built homes on three of them. When the buyers prepared to connect to the line, Martin filed suit for a declaration of rights, arguing that the agreement provides for an easement in gross, which thereby grants the right to connect with the sewer to him and Music only. Martin contended that the aforementioned right did not accrue to the buyers of the lot.
Does the agreement provide for an easement in gross such that the buyers would not have the right to connect with the sewer?
The Court held that the easement was an easement appurtenant because the right to connect applied only to the occupancy of the land through which it ran, and that the question was whether the use of the line by appellees would burden the servient tenement. The court held that under the contract, the owner had the right to build apartments, a hotel, or even a factory on his property and connect them to the line because the contract did not limit the kind of use, and that for that reason, the two or three dwellings would not increase the burden contemplated by the contract.