Burcky v. Knowles

• Decision Date: 31 March 1980
• Docket Number: No. 79-284,79-284
• Citation: 413 A.2d 585,120 N.H. 244
• Parties: Paul A. BURCKY and Cathleen T. Burcky v. Mildred J. KNOWLES and Forrest E. Knowles, Jr.
• Court: New Hampshire Supreme Court

Page 585

413 A.2d 585

120 N.H. 244

Paul A. BURCKY and Cathleen T. Burcky v. Mildred J. KNOWLES and Forrest E. Knowles, Jr.

No. 79-284.

Supreme Court of New Hampshire.

March 31, 1980.

Seth M. Junkins, Hampton, by brief and orally, for plaintiffs.

Casassa, Mulherrin & Ryan, Hampton (Peter J. Saari, Hampton, orally), for defendants.

BOIS, Justice.

This is a petition for declaratory judgment to determine easement rights over the defendants' land. The principal issue is whether a prior deed created an easement appurtenant or in gross. The Trial Court (Contas, J.) found an easement in gross, denied the plaintiffs the right to cross the defendants' land, and reserved and transferred the plaintiffs' exceptions. We reverse.

The defendants' predecessor in title purchased property located in North Hampton from Samuel Garland in 1934. Garland transferred the parcel by warranty deed with the following reservation:

Reserving to the grantor the right to pass and repass over a strip of land fifteen (15) feet in width, lying adjacent to and northerly of said homestead lot of the grantee and extending from said Post Road to the rear of the lot hereby conveyed.

In 1953, Garland sold to the defendants' predecessor in title an additional lot which was located to the west of and contiguous to the defendants' original lot. Garland also transferred this parcel by warranty deed with the following reservation:

Reserving to the grantor the right to pass and repass by foot, horse, and/or vehicle, over a strip of land fifteen (15) feet in width, lying adjacent to and northerly of said homestead lot of the grantee, and continuing the right of way reserved to the grantor (in the grantor's deed above referred to) between said Post Road and the rear of the land surveyed to the grantee by said deed, on to the rear of the within granted parcel, so as to assure the grantor, his heirs and assigns of all necessary rights of ingress and egress for all purposes between said Post Road and his reserved pasture land which lies westerly and northwesterly of the within granted parcel.

The plaintiffs are successors in title to the remainder of Garland's land.

I. The 1934 Deed

The first stage of inquiry is to interpret the reservation clause in the 1934 deed. The initial thrust of inquiry of the court below was to determine whether the 1934 easement was appurtenant or in gross. The court appeared to rely heavily on the fact that the 1934 reservation clause did not contain words of inheritance, and concluded therefrom that it had to determine the intention of the parties in 1934, taking into consideration all the facts and surrounding circumstances at the time of the conveyance. After hearing all the evidence, the court found that Garland did not intend to create a permanent easement but an easement in gross, personal to himself and for the purpose of affording access to pastureland for his livestock. The court ruled that the plaintiffs had no legal claim to an easement across the defendants' land because the original easement did not run with the land.

The language in the 1934 deed reserves to the grantor nothing more or less than "the right to pass and repass over a strip of land fifteen (15) feet in length . . .." We find this language in the context of the 1934 deed to constitute an appurtenant easement for the following reasons: (1) the language creates two distinct tenements in which a dominant estate is benefited by use of an easement on a servient estate; (2) the language is clear and unambiguous; and (3) no inference can be drawn from the absence of words of inheritance.

An appurtenant easement is a nonpossessory right to the use of another's land. It is an incorporeal right generally created for the purpose of benefiting the owner of the dominant estate (land to which the easement is attached) as the possessor of such estate; it runs with the land, is incapable of existence separate and apart from the dominant tenement, and is inheritable. 2 Thompson, Real Property § 380 at 518-19 (1961); 3 Powell, Real Property § 405 at 34-18 to 34-20 (1979); 25 Am.Jur.2d Easements and Licenses § 11 at 425-26 (1966).

An easement in gross is also an incorporeal, nonpossessory right to the use of another's land, but it is a mere personal interest. 2 Thompson, Real Property supra. It belongs to its owner independently of his ownership or possession of other land; it is generally not inheritable, and vests only in the person to whom it is granted. Id.; 3 Powell, Real Property, supra at 34-22 to 34-23; 25 Am.Jur.2d supra, § 12 at 426-27.

The 1934 reservation clause presents a classic example of an appurtenant easement, where a grantor conveys a portion of his property to another, reserving in the deed the right to pass and repass across that property, (presumably) to benefit the agricultural utilization of the grantor's land. See 3 Powell, Real Property, supra at 34-19 (1979). While the lower court may have been correct in concluding that the original easement was intended to afford Garland access to pastureland for his livestock, its focus was misdirected. The language used was not personal to Garland, and a reserved right in a conveyance which is not in its very nature a mere personal and temporary right will always be held an easement running with the land absent some controlling provision to the contrary. 2 Thompson supra at 520. Furthermore, the general rule of construction favors appurtenant easements over easements in gross, and an easement is never presumed to be in gross or a mere personal right when it can be fairly construed to be appurtenant to some other estate. Id.; 25 Am.Jur.2d Easements and Licenses § 13 at 427-28 (1966).

The court below heard extrinsic evidence to determine the intention of the parties at the time of the 1934 conveyance. In only two cases is a court justified in placing itself in the situation of the parties at the time of the conveyance and taking into consideration all the facts and surrounding circumstances to determine their intentions: (1) where the extent and reasonable use of the easement is at issue; (2) where the language used is ambiguous. See Annot., 3 A.L.R.3d 1256, § 3 at 1262 (1965); see, e. g., Barton's Motel, Inc. v. Saymore Trophy Co., 113 N.H. 333, 335, 306 A.2d 774, 775-76 (1973) (reservation to cross "along a strip of land fifty feet (50') in width" found ambiguous and required court to look beyond instrument); Spaulding v. Clark, 104 N.H. 30, 32, 177 A.2d 400, 401 (1962) (reservation to cross land "when needful" required court to look beyond instrument).

In this case, it is the existence and not the reasonable use of an easement which is at issue; and the language used is plain and clear. While the language is general in nature, it is not ambiguous. The defendants even admit in their brief that "(t)he language of the 1934 deed was unambiguous." The grant of a general right to pass and repass entitles the dominant owner to use the right of way for any necessary or convenient purpose of passing pertaining to the ownership and occupancy of his land to which the right of way is appurtenant. 2 Thompson, Real Property § 385 at 556 (1961); see Sandown v. Kelley, 97 N.H. 418, 419, 89 A.2d 758, 759 (1952); Abbott v. Butler, 59 N.H. 317, 318 (1879); Annot., 3 A.L.R.3d 1256, § 4 at 1266 (1965). Accordingly, we find that the court erred in going beyond the four corners of the 1934 deed.

The 1934 deed reserved the right to pass and repass across the grantee's property "to the grantor," and not "to the grantor, his heirs and assigns." The court below appeared to give substantial import to the absence of words of inheritance in this reservation clause in finding it necessary to look beyond the deed to ascertain the intent of the parties. Although it can be argued that such an act by the grantor evidences an intent to retain only...