Whether an easement is appurtenant or in gross is controlled mainly by the nature of the right and the intention of the parties creating it, and must be determined by the fair interpretation of the grant or reservation creating the easement. Such interpretation may be aided if necessary by the situation of the property and the surrounding circumstances. Further, in determining the intention of the parties, subsequent deeds of the dominant and servient tenements are competent.
Landowners sought declaratory judgment against neighboring landowners to terminate an easement over their property. The property of the landowners and their neighbors was once owned by only one party where the wishes included that all owners of the property agree to be jointly liable for maintenance and upkeep of the right of way, which shall run with the land and be for the benefit of both parties. The trial court granted summary judgment to the neighbors holding that the easement was an express easement appurtenant, that necessity was not a required element, and that mere nonuse was insufficient to establish abandonment of the easement. On appeal, the landowners argued that the trial court erred in holding that the easement was an express easement appurtenant.
Should the easement be terminated?
The appellate court found that the language reserving the easement stated that the easement would run with the land. The language expressed the intent that the easement passes with the dominant tenement to successor grantees. It was the intention of the parties to the original transaction creating the easement that the right of way should be an incident to the parcel reserved by the original grantor. The language of the deeds in the subsequent conveyances confirmed that intention. Necessity was not a prerequisite to establishment of an express easement. Mere nonuse did not constitute abandonment of an easement. Nonuse had to be coupled with proof that the easement holder or holders intended to abandon the easement. The landowners made no allegation of abandonment other than through nonuse and offered no proof of intent to abandon.