Davis v Bruk
S. Ct. ME [1980]
Author:- Sam Biers

Relevant Facts: The Pl and Df own adjacent parcels.  Pls, Davis, are owners of the dominant estate.  Df, Bruk, the owner of the servient estate.  The parties have an express easement without a power of relocation.  Pls want to pave a portion of the road near the seashore and have widened the easement.  Df proposed relocating the easement at her cost to alleviate a potentially dangerous situation and/or damage to her property.

Legal Issue(s): Whether the court had authority to relocate plaintiff's right-of-way, and if paving right-of-way to town road would result in material change in surface of right-of-way would give rise to added burden on servient estate?

Court’s Holding: No, and Yes

Procedure: Trial ct granted Df right to relocate easement and denied Pl permission to pave.  Reverse 1^st and affirm 2^nd.

Law or Rule(s):  In absence of statutory provisions to contrary, as a general rule, location of an easement, when once established, cannot be changed or easement relocated without mutual consent of owners of dominant and servient estates.

Court Rationale: The deeds in the Pls chain of title contain express language in unqualified terminology concerning a right of way to the Town Road. The deeds did not fix the exact location of the right of way, the present location was fixed in 1896 and hasn’t varied since.  The Df was aware of the right of way when she purchased the servient estate in 1963.  An exception to the rule against relocation would introduce considerable uncertainty into land ownership, and serve to proliferate litigation which the rule intends to prevent. The owner of the dominant would be deprived of the present security of his property rights in the servient estate and subject to harassment by the servient owner’s attempts to relocate.  A unilateral relocation rule could confer an economic windfall on the servient owner who presumably purchased the land at a price which reflected the restraints existing on the property.

An easement for a right of way does not permit the grantee to “disturb the soil upon the fee,” of the owner of the servient estate. Even though the paving may suit the convenience of the owners of the dominant estate such material change may give rise to an added burden on the servient estate.

Plaintiff’s Argument: The power to relocate is not w/i the court’s discretion absent statutory language, or agreement of both parties.

Defendant’s Argument: Unilateral relocation should be granted in cases where the change is slight, the servient owner will bear the cost, the terminable points remain unchanged, and the new way is more convenient.