Burcky v Knowles
S. Ct N. Hampshire [1980]
Author:- Sam Biers

Relevant Facts: Df’s predecessor purchased property from Garland, who transferred the parcel by warranty deed with a reservation right to pass and repass.  Garland sold that predecessor an additional lot west of the first one, and adjacent to his pasture.  This was also by warranty deed with a reservation right to pass and repass, by foot, horse, and/or vehicle.  The Pls are successors to the remainder of Garland’s land.  The purpose for the easement was to maintain access to the pasture through the two lots, from the road.

Legal Issue(s): Whether the 1934 deed created an easement appurtenant or an easement in gross?

Court’s Holding: The easement reserved was appurtenant, and ran with the land.

Procedure: Trial ct found in gross, for Df; barring Pl’s right to cross. Reversed.

Law or Rule(s): An appurtenant easement is created for the benefit of the owner of the dominant estate to which it is attached, as the possessor of the estate; it runs w/ the land is incapable of existence separate and apart from the dominant.

Court Rationale: The language of the original deed creates two separate tenements, to which the dominant is benefitted by use of an easement on a servient; the language is clear and unambiguous.  It is the existence and not the reasonable use of an easement which is at issue.  Here the language is plain and clear, not general in nature, it is not ambiguous. The Dfs admit the language was unambiguous.  The grant of right to pass entitles the dominant owner to use the right of way for any necessary purpose pertaining to the ownership to which the right of way is appurtenant.  Absence of words of inheritance is not only “not conclusive,” but also has no bearing on the parties intent. The additional language in the subsequent conveyances did not grant any use that would have been prohibited under the original deed in service of the dominant.  The subsequent deeds are valid and sufficient to convey an appurtenant over both pieces of property. Once an easement is appurtenant to a dominant, a conveyance of that estate carries with it the easement belonging to it, whether mentioned in the deed or not.  Failure to make reference to the easement does not destroy the PL’s rights under those easements.

Plaintiff’s Argument: The reservation clause is clear and unabiguous.  The right to pass and repass by foot, horse, and/or vehicle, over a strip of land was created to benefit the dominant estate and runs with the land.

Defendant’s Argument: The reserved easement was only a personal interest as no commercial value was benefitted from the servient estate. Thus it was personal and temporary, its purpose was intended only to afford Garland access to his livestock.