Hayes alleged, inter alia, that a proposed expansion of a marina
located on Gnegy's land (the dominant estate or marina property)
would overburden the easement across Hayes's lands (the
Hayes, therefore, sought to have the trial court enjoin the
proposed expanded use of the dominant estate.
(1) a perpetual easement
exists across the servient estates for ingress to and egress
from the dominant estate;
(2) the easement is not limited solely for
domestic use, but may be
used commercially by the marina and
its customers and by boat owners and their guests;
(3) the proposed expansion
of the marina from 84 to 280 boat slips is a
reasonable use of the
(4) the resulting increase
in traffic over the easement will
not change the type,
only the degree, of use and will not overburden the
(5) paving the easement
is reasonable and a proper
means of maintenance.
Confirmed the Report
Litigant Predecessors Written Agreement
for "the establishment of a certain
roadway or right of way beginning at the Northern
terminus of State Highway No. 666, and terminating at the
property division line between [the servient estates], and where
[the dominant estate] adjoins the same on the North side
thereof" and for "the continuation
of said right of way."
State Department of Highways Take over portion of roadway.
roadway beginning at the North terminus of said State Highway
No. 666, and leading through [the servient estates]."
"approximately something less than one-half mile in length."
The "newly established private roadway" was "approximately 1,120
feet in length" and "fifteen feet wide along its entire
The agreement provided that the parties thereto "shall
have an easement of right of way over the entire length
Portion of easement because state highway
The record indicates that the portion of the easement, beginning
at the northern terminus of State Highway No. 666, became a part
of the state highway system in 1962.
The record also indicates that the "private roadway" is
constructed of dirt and gravel.
Marina Before Expansion
84 boat slips.
Marina after Expansion
280 boat slips.
Expert testified that there had never been an access problem to
Express Easement Rule
As a general rule, when an easement is created by grant or
reservation and the instrument creating the easement does
not limit the use to be made of it,
the easement may be used for any
purpose to which the dominant estate may then, or in
the future, reasonably be devoted.
If there are no words limiting any particular use, then a change
in reasonable use does not affect the easement.
However, you cannot change the type of use.
The phrase, "private roadway,"
in the easement agreement, the parties to the agreement intended
to limit the use of the
easement to domestic purposes,
thereby prohibiting commercial uses.
The agreement created an easement
for access without limitation.
The commissioner and the trial court adopted Gnegy's contention.
Comment on private roadway
The phrase is just descriptive and not restrictive.
Used to distinguish that portion of the easement that would not
become a part of the state highway system from that portion of
the easement that could be taken into the system
Comment on Limitation
Easement agreement contains no term of limitation.
The marinas use is reasonable for which it has been devoted.
Hayes Argues Burden
The proposed expansion of the marina will impose an additional
and unreasonable burden upon the easement.
Comment - Burden
Hayes has the burden of proving this allegation.
Both the commissioner and trial court concluded that the
proposed expansion would not burden the easement.
The commissioners report is presumed to be correct on appeal.
The proposed expansion will
not, "in and of itself," impose an "additional burden"
upon the easement, even though the "degree of burden"
may be increased.
Hayes Argue Gnergys paving
Gnegy does not have the right to pave the easement.
Hayes says the owner of the dominant estate has the DUTY to
maintain, but does not RIGHT to improve the easement.
The owner of a dominant estate has a duty to maintain an
Dominant Estate Improvement Rule
The owner of a dominant estate has the
right to make reasonable improvements
to an easement, so long as the improvement
does not unreasonably increase
the burden upon the servient estate.
Such improvements include paving a roadway.