Epstein Family Partnership(Appellee) Levitz Furniture(Intervenor) v Kmart
U. S. Ct App [1994]
Author:- Sam Biers

Relevant Facts: In 1963 Levitz erected a sign just north of an E area on what came to be Kmart’s property.  Under the 1962 lease between Epstein and Levitz, Levitz covenanted that it would not w/o written consent erect or install any exterior signs.  Levitz did obtain oral consent but never written. Kmart wanted to construct certain barriers and traffic control devises on a piece of its property containing an E.  Epstein owns the E of ingress/egress to the property being leased to Levitz which is landlocked.

Legal Issue(s): Whether servient estate holder's plan created "substantial interference" with easement rights; whether the injunction was too broad where it included traffic control signals and signs which did not substantially interfere with dominant estate holder's access; and whether the  record evidenced that the store had acquired easement by estoppel or implication as to sign?

Court’s Holding: Yes, Yes, and No.

Procedure: D Ct enjoined servient estate holder from constructing certain barriers and enjoined removal of sign on property erect and maintained by dominant estate holder's tenant; Affirmed in part; vacated and remanded in part modifying the injunction.

Law or Rule(s):  Easement by implication arises if parties intended to create easement but neglect to include or embody it in written agreement. In Pennsylvania, proponent of easement must show that its use indicates permanent arrangement. Permanency is determined from the nature of the use unless the surrounding circumstances dictate otherwise.

Court Rationale: The facts indicate that the parties did not intend to create an easement in favor of Levitz b/c the circumstances surrounding the execution of the Declaration of E demonstrates the parties’ apparent willingness to provide expressly for Es on other portions of the estate. The requirement that the use be permanent which is necessary to an implied E is not present. When the estate was severed ingress/egress was expressly provided for and there was no mention of the sign as an E.  The absence of such a reservation suggests that the right  was not intended to be retained.  The omission of a particular right from an express grant of others relating to the same property cuts strongly against any inference of an intent to make the unmentioned grant. Levitz was a leaseholder who had the ability to erect or install only w/ written permission.  At the time of severance Levitz’s right to maintain the sign under the lease could extend at the most until 1997.  When the lease terminates, tenants usually take signs with them, roads and sewer are left behind.  Signs are not permanent fixtures.

Plaintiff’s Argument: (ANT) Levitz has not shown it has either an E by implication or an E by estoppel to maintain its sign on Kmart property.

Defendant’s Argument: (EE) Levitz has an implied E to erect and maintain the sign in order to fully benefit the use and enjoyment of the property.