Right-of-way----access easement, public roads and private property--Oh My!

So . . . who "owns" the easement or has the benefit of it?

What happened? 

In this Wyoming Supreme Court December 2022 case a sale contract included a 20 foot easement for a nonexclusive right of way and access easement along a strip of land that provided access to the premises from the seller to the buyer.  The easement provided access to the premises including the right of ingress, egress and regress and the right to cross a bridge between the properties.  

The parties then executed a license agreement which stated that in consideration of the sale and purchase of a parcel of the property, the parties agreed that the license would constitute a permit from seller to buyer for ingress and egress over the property and would continue until the option to purchase between the parties was fully performed.  

In 2017, the Warm Springs Creek flooded, damaging the bridge and the seller did not reconstruct it.  Without the bridge, the buyer can no longer use the easement for access.  The buyer asks the Court whether the easement as in gross and personal to the Buyer or whether it is an easement appurtenant or follows the land.   

The Seller argues that the easement is an easement "in gross" personal to them and that when it was conveyed it did not "follow the land".  

What is an easement?

An easement is a nonpossessory interest in land--that means no one owns it exclusively-- that entitles the easement holder to a right of limited use in another's property.  Easements differ from licenses in that a license generally grants permission to do something on another's property.  Since permission can be easily rescinded, the landowner usually can termination the license.  By contrast, easement are generally irrevocable.

What are the types of easements?  Easements may be appurtenant or in gross.  

Appurtenant:  When the easement is created to benefit and does benefit the possessor of land in his use of the land.  Land burdened by an easement is appropriately termed a servient tenement or servient estate.  If the easement benefits a particular parcel of land, that parcel is known as the dominant tenement or dominant easement, and the easement is said to be appurtenant to it.  An appurtenant easement is tied to the dominant estate, is conveyed with a conveyance of that estate, an cannot be conveyed independently thereof.  An appurtenant easement is transferred with possession of the dominant property even if it is not mentioned in the document of transfer.  

In gross:  An easement is in gross when the easement is created to benefit someone personally, and not as possessor of any particular land.  Easements in gross, having no dominant estate to be attached to, were considered personal tot heir holder and an such nonassignable.  

Now what is access?  In order to create a valid appurtenant easement, is the grantor required to own the dominant estate (property) at the time the easement is conveyed?  Usually, the grantee of an appurtenant easement will have already acquired title to the dominant estate when the easement is granted.  However, ownership of the dominant estate by itself does not dictate that the easement is appurtenant to the land.  That's because an appurtenant easement may be created to benefit a person as the possessor of land depending on his option possession of it.  

It is important to note that even where the parcels of land involved were not physically adjacent to the easement, they benefitted from it.  Must the two properties have the geographic relationship that they are physically next to each other?  The answer is no.  There is no strict physical contact between the parcels required in other to show that each parcel benefits from the easement.  HOWEVER, the use of the easement must be so related to the use of the dominant tenement that its particular connection with the beneficial enjoyment of that land is not merely conjectural but direct and apparent.  

And what type of easement is it? 

When determining the type of easement we determine the intent of the parties to the easement.  Deed interpretation rules focus on deriving the intentions of the parties.  The court may look to the surrounding circumstances, the subject matter and the purpose of the contract.  The intent of the parties is considered at the time the agreement was made.  

Here, the easement's stated purpose is to provide access to the premises abutting the right of way, including the right of ingress and egress.  This language suggests that the easement was intended to be appurtenant.  Generally, where a right to pass over land is given for ingress and egress, the easement is appurtenant rather than in gross.  

The badges of an appurtenant easement are: 

  1. the easement was created to benefit a specific tract of land; 
  2. the grant was for a perpetual right of way for ingress and egress; 
  3. the grantee has the right to inspect and maintain the easement; 
  4. the right is not limited to the possessor personally; 
  5. the grant expressly extends the right to the grantees; 
  6. the easement document does not contain any limitations on the transferability of the easement. 

If you have property that is has easement(s) I would be pleased to speak with you about it.  Please contact me at 307.200.1914 for a free 30 minute consultation.