A title examiner may presume that an appurtenant easement is created when a right benefiting one property (the dominant estate) to use another property (the servient estate) for a specific purpose is established in an instrument executed with deed formalities. An express appurtenant easement may be created either by grant to a grantee or by reservation of an easement by the grantor.
Comment 1. An appurtenant easement is one that serves a parcel of land rather than a particular person and one which is incident to the ownership of the dominant estate. An appurtenant easement runs with the land to which it is appurtenant, and passes with the land to a subsequent grantee with passage of the title of the dominant estate, whether or not reference is made to the appurtenant easement within the vesting instrument. Construction of an easement appurtenant is favored over an easement in gross. See generally Barrett v. Kunz, 158 VT 15 (1992) and Rowe v. Lavanway, 180 VT 505 (2006).
Generally, an appurtenant benefit may not be severed and transferred separately from all or part of the benefitted property. A dominant estate’s interest in an easement cannot be severed from the land by transferring it to a third party. An appurtenant easement is incapable of an existence separate from the dominant estate. See generally, Nordlund v. Van Nostrand, 2007-027 (VT) (all citations and references omitted).
Comment 2. There is no specific or required language to create an express appurtenant easement other than the words of grant or reservation in the deed. For example, use of a phrase such as “and their heirs and assigns” is not required; however, use of such a phrase creates a presumption that the easement is intended to run with the land.
Comment 3. Under the common-law merger doctrine, an easement ceases to exist when the dominant and servient estates come into common ownership. When the burdens and benefits of an easement are united in a single person the servitude ceases to serve any function. Because no one else has an interest in enforcing the servitude, the servitude terminates by operation of law. See generally, Fletcher v. Ferry, 181 Vt. 294, 296 (2007) (all citations and references omitted).
Comment 4. Unless extinguished, easements created outside the time period covered by the Marketable Record Title Act still encumber the property. 27 VSA §604(a)(6), (7). However, an easement by necessity may be extinguished by the application of the Marketable Record Title Act in certain circumstances if notice is not timely recorded. See, Standard 5.4.
Comment 5. In construing an express easement, the intent of the parties governs. Several principles guide interpretation. First, a dominant estate is entitled to use an easement in a manner that is reasonably necessary for the convenient enjoyment of the servitude. Second, the easement must be used in a manner consistent with the use contemplated at the time of its creation and may not be used in a way that materially increases the burden on the servient estate. Whether a particular use overburdens an easement depends on the easement’s original purpose and the scope of its authorized use. Third, the manner, frequency, and intensity of the use of the easement may change over time to take advantage of developments in technology and to accommodate normal development permitting servitudes to retain their utility over time, if doing so would reflect the expectations of the parties who create servitudes of indefinite duration. See generally, Post & Beam Equities Group, LLC v. Sunne Village Development Property Owners Association, 199 Vt. 313, 339 (2015) (all citations and references omitted).
Comment 6. A change in location generally requires the consent of the owners of both the benefitted property and the burdened property, but the consent can be implied from acts or acquiescence. As to the unilateral movement or relocation of easements, see Sweezey v. Neel, 179 Vt. 507 (2006) for surface easements, and Roy v. Woodstock Community Trust, Inc. 195 Vt. 427 (2014) for subsurface easements.
Comment 7. An appurtenant easement may not be created in favor of a third party by reservation in a deed. First National Bank of St. Johnsbury v. Laperle, 86 A.2d 635, 639 (Vt. 1952).
Comment 8. An appurtenant easement may be terminated by conveyance or release by the owner of the dominant estate to the owner of the servient estate.
Comment 9. While an easement may be extinguished by an abandonment, non-use alone will not suffice, no matter how long continued. To establish an abandonment there must be, in addition to non-use, acts by the owner of the dominant tenement conclusively and unequivocally manifesting either a present intent to relinquish the easement or a purpose inconsistent with its future existence. As noted in Okemo Mountain, Inc., ” it is difficult to establish adverse possession of an easement where the dominant owner abstains from using the easement.” See, Rowe v. Lavanway, 904 A.2d 78, 180 Vt. 505, 2006 VT 47, (Vt. 2006), all citations omitted.
Comment 10. A negative easement prohibits the owner of the servient estate from doing something that would otherwise be permissible such as constructing a building to block light or air.
September 2020 – Standard Added.