Restatement of Property, supra, at 450 cmt. c.
The owner of the servient estate retains all rights to the
property except as limited by the easement.
The fee or leasehold owner of the land to which an easement
applies retains all the incidents of ownership in the land that
do not contradict the particular rights of the easement holder.
Thus if the easement holder has the right to cross over the land
of another at a certain point, the owner of the underlying
property ordinarily has the right to use the exact same part of
the property in any way that
does not prevent the easement holder from the actions which the
From 1963 to 1990, all parties believed that the location of the
dirt driveway corresponded to the easement the Englemans granted
Mueller Fence prevented use of the
Mueller maintains that his boundary fencing, agricultural use of
the servient estate and drilling of a water well have prevented
use of the easement.
Mueller District Court Erred
Mueller argues the district court
erred in finding that the rights of the owners of the
dominant estates to use only a portion of the easement had been
terminated by adverse possession.
Instead, Mueller asserts that the
entire easement has been
extinguished under one of several alternative theories.
Coffee and Hoblyn Rights not terminated
Their rights could not terminate until they made a demand upon
Mueller to use the land.
District courted erred
in finding that a portion of the easement had been terminated by
Not Terminated by operation of law.
Englemans granted easement to REB
In 1963, the Englemans granted an easement to REB for access to
their parcel of land by a private road.
The Englemans' parcel of land became the servient estate,
burdened by the easement. The REB property became the dominant
estate, benefitted by the easement.
Mueller purchased from Englemans (He had notice)
He took with record notice of the existence of the easement
REB Subdivided Land
Restatement of Property, supra, 488.
The fact that the dominant estate is divided and a portion or
portions conveyed away does not, in and of itself, mean that an
additional burden is imposed upon the servient estate.
The result may be that the degree of burden is increased, but
that is not sufficient to deny use of the right of way to an
owner of a portion so conveyed.
Unlimited use, No Additional Burden, Degree increased
The easement granted by the Englemans provided for unlimited use
for ingress and egress.
Subdivision did not create
an additional burden on the easement
since the use remained the same.
We hold that while the degree of the burden was increased, the
easement was not terminated when REB subdivided its parcel of
Easements may be terminated by abandonment.
Abandonment occurs when one
person relinquishes or surrenders rights or property to another.
Abandonment of an easement
requires an intentional relinquishment indicated by conduct
which discloses the intention to surrender the right to use
the land authorized by the easement.
No evidence of intentional relinquishment
There is no evidence the owners of the dominant estates ever
constructed any permanent buildings or structures to obstruct
the route of the easement onto their lands.
Mueller Use should have been terminated.
More than simple nonuse, no matter now long
Abandonment requires more
than simple nonuse of an easement,
no matter how long the period
In Harrison v. State Highways and Transp. Com'n,
The court found an easement to remove fill dirt for use in
highway construction was
not abandoned even though it had not been used in twenty-four
Question of Abandonment
The question of abandonment is largely
one of intention, and
intention to abandon must be proved
and it may be inferred
only from strong and convincing
Richards Asphalt Co. v. Bunge Corp (Railroad, 16 uses of fill
dirt to control flooding)
The court determined that an easement for a
railroad spur was not abandoned
despite nonuse for sixteen years.
The owner of the dominant estate had obstructed the railroad
tracks with four to seven feet of fill dirt to control periodic
flooding. Id. at 190.
The court found that placing the fill dirt and leaving it for
sixteen years did not
disclose a permanent intent to abandon the easement.
Abandonment Rule Requires Affirmative and unequivocal Acts
claim of abandonment can be upheld only where nonuse is
accompanied by affirmative and unequivocal acts indicative of an
intent to abandon and is inconsistent with the continued
existence of the easement."
Coffee, Hoblyns non-use
Did not attempt to use the easement for 27 years.
The mere nonuse of the easement
did not disclose an affirmative
an unequivocal intent to abandon the easement.
- Alternative Route Used Does Not Extinguish Easement
The use of an alternative access route from 1963 to 1990 also
does not establish an intent to abandon the easement.
In Jackvony v. Poncelet
The owner of the dominant estate had two available routes to
access his property.
The court determined that despite the fact the alternative route
was more convenient, the
owner of the dominant estate retained the right to use
and enjoy an easement giving him access to another route.
The court reiterated that abandonment would only be found when
there is an expression of an intent to abandon the easement.
Coffee and Hoblyn did not abandon the easement granted by the
Detrimental reliance on the conduct of the owners of a dominant
estate may also result in a termination of the easement.
Restatement of Property, supra, at 505 acknowledges that the
owner of a servient estate may seek to terminate an easement by
Easement Terminated by Estoppel
An easement is extinguished when
action is taken by the owner of the servient tenement
inconsistent with the continued
existence of the easement, if
(a) such action is taken in
reasonable reliance upon
conduct of the owner
of the easement; and
(b) the owner of the
reasonably have foreseen such reliance and the
consequent action; and
(c) the restoration of the
privilege of use authorized by the easement
would cause unreasonable harm
to the owner of the servient tenement.
Mueller failed to make showing
Mueller failed to make any showing of conduct by Coffee, Hoblyn
or their predecessors-in-interest that he reasonably relied upon
to his detriment.
We hold that the easement was not
terminated by estoppel.
Adverse possession for the statutory period of
ten years may result in
the termination of an easement.
To terminate an easement by adverse possession, the
owner of the servient
estate must take an action that would be
permitted ONLY IF the easement
did NOT exist.
Adverse Possession Rule
An easement is extinguished by a use of the servient tenement by
the possessor of it which would be privileged
if, and only if, the
easement did not exist,
(a) the use is adverse as to
the owner of the easement and
(b) the adverse use is, for
the period of prescription, continuous and
Adverse Possession Elements
The party claiming adverse possession must
show actual, open, notorious,
exclusive and hostile possession of another's property for ten
years under a claim of right or color of title.
Adverse Possession: Distinguish between land and easement
The owner of the servient estate claiming adverse possession of
an easement already has the right
to possess and use
the land so long as that use is not
inconsistent with the easement.
Therefore, the owner of a servient estate must prove the use of
the servient estate made during the period of adverse possession
is sufficiently hostile and
inconsistent with the use permitted by the easement.
Possession: Extinguish Easement
To extinguish an easement over (or use of) the servient
tenements, the servient tenement owner
must demonstrate a visible,
notorious and continuous adverse and hostile use of said land
which is inconsistent with the use made and rights held by the
easement holder, not merely possession which is
inconsistent with another's claim of title.
Was adverse for 200 foot portion of easement
Boundary Fence Agriculture
No sufficient to terminate easement.
Mueller Arg Entire Not Only
He believes the well terminated the entire easement by adverse
Coffee and Hobbes Counter Arg (No Adverse Possession)
Mueller's actions prior to 1990 were not adverse to their
interests because Mueller
was permitted to make use of his land until the owners of the
dominant estates requested to use the easement.
Mueller's actions were
nothing more than an exercise of his right as the landowner to
use and develop his property.
Did not terminate ANY portion of the easement by Adverse
Example Not Adverse Possession (Easement Never Been Used)
Covering easement with improvements when easement is not in use.
Constructing a fence across an unused easement.
Placing 6 trees down the center of the easement used as a
private road. Also, constructing a fence inside the easement
boundary, building a concrete irrigation on the other side of
the easement, and place two large boulders on the easement.
Fencing, trees and gardens.
Non-Use, Fence, Demand Rule
Where an easement has been created but
no occasion has arisen for its use,
the owner of the servient tenement
may fence his land and
such use will NOT be deemed adverse
to the existence of the easement
UNTIL such time as
The need for the right of way arises,
demand is made by the owner of the dominant tenement that the
easement be opened and
The owner of the servient tenement refuses to do so.
When easement is not definitively located.
When easement is not developed through use.
The easement owner if given notice either when the easement is
made open OR the easement owner demands it to be open.
No portion of the easement granted by the Englemans was
terminated by adverse possession.
The easement has never been developed through use.
Put on Notice
When Coffee and Hoblyn demanded use, they were put on notice in
Muellers Prior 1990 Use and Agricultural Use
His use of the land was not inconsistent with the purpose
reserved for the easement.
Not adverse to the continued existence of this previously used
Fencing + Cultivation results in gaining title in FEE by adverse