William and Mary Review of Virginia Law William and Mary Review of Virginia Law
Volume
1 (1949-1953)
Issue 5
Article 8
May 1953
Property - Easements in Gross and Easements Appurtenant Property - Easements in Gross and Easements Appurtenant
Elizabeth Graham Booth
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Elizabeth Graham Booth,
Property - Easements in Gross and Easements Appurtenant
, 1 Wm. &
Mary Rev. Va. L. 196 (1953), https://scholarship.law.wm.edu/wmrval/vol1/iss5/8
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PROPERTY-EASEMENTS
IN
GROSS
AND
EASEMENTS
APPURTENANT
Complainant
owned
thirty
acres
which
was
being
developed
for
residences.
At
that part
of
the
property
fronting
on
the
highway,
complainant
erected
a sign
made
of
two
upright
posts
and
three
horizontal
boards.
The
top
board
was
inscribed,
"Woodland
Acres",
next
board,
"E.
J.
Dent,
Jr.
Developer,"
and
the
last
one,
"New
Homes".
Complainant
sold
this
lot
with
residence
thereon
to
de-
fendants
and
inserted
in
the
deed:
"Reserving
unto
the
parties
of
the
first
part
the
right
to
maintain
its
subdivision
sign
in
its
pres-
ent
location,
with
the
right
of
ingress
and
egress,
thereto
for
the
purpose
of
maintainance
and
repairs."
Defendants
later
removed
the
two
lower
boards
and
refused
to
permit
complainant
to
replace
them,
whereupon
complainant
sought
injunctive
relief.
The
trial
court
granted
relief
because
the
Chancellor
was
of
the
opinion
that
the
clause
quoted
constituted
a
covenant
running
with
the
land,
and
there
was
no
ambiguity
in
the
clause.
On
appeal,
held,
reversed
and
remanded.
The
clause
constituted
an
easement
in
gross,
but
pa-
rol
evidence
was
admissible
to
show
that
the
easement
was
to
last
a
certain
period.
If
there
was
not
an
agreed
period,
then
the
easement
would
terminate
when
the
purpose
(which
was
sale
of all
the lots)
was
accomplished.
Reed
v.
Dent,
194
Va.
156,
72
S.E.2d
255
(1952).
Defendant
conveyed
the
mineral
rights
of
certain
land
to
Ritter
Company
by
the
usual
type
deed,
which
also
provided:
"All
the
rights,
rights
of
way,
privileges
and
easements
herein
mentioned
shall
forever
run
with
and
be
appurtenant
to
any
and
all
the
coal
and
other
substances
above
numerated,
in,
on
or
under
the
tract
of
land herein
described,
and
in,
on
and
under
any
other
lands
now
owned
or
hereafter
acquired
by
the
party
of
the
second
part,
its
successors
or
assigns".
Ritter
Company
also
acquired
coal
rights
in
other
lands
in
this general
area.
Stokes
Company
which
already
owned
coal
rights
in
other
tracts
including
the
Slocum
and
Kroll
tracts
leased
eleven
tracts
from
Ritter,
and
although
the
Matney
tract
was
not
included
in
the
eleven,
Riter
purportedly
gave
Stokes
the
right
to
move
any
coal
mined
in
any
tract
across
the
Matney
property.
Stokes
attempted
by
mandatory
injunction
to
haul
coal
over
defendant's
land.
The
trial
court
refused
to
grant
the
in-
junction.
On
appeal,
held,
affirmed.
Since
the
Slocum
and
Kroll
tracts
had
never
been
owned
by
Ritter,
the
easement
was
not
for
the
benefit of
those
tracts,
and
an
appurtenant
easement
cannot
be
converted
into
an
easement
in gross.
William
S.
Stokes,
Jr.,
Inc.
v.
Matney
194
Va.
339,
73
S.E.2d
269
(1952).
There
has
been
much
conflict
on
the
status
of
easements
in
gross
and
appurtenant
easements
in
regard
to
the
uses made
of
the
property
to
which
they
pertain.
The
courts
have
been
reluctant
to
allow
easements
in
gross
if
there
is
a
chance
that
the
easement
may
be
appurtenant.
The
court
claimed
the
easement
allowed
in
the
Reed
case
was
in
gross
as
it
was
"a
mere personal
interest
in,
or
right
to
use,
the land
of
another."
1
It
would
seem
that
the court
was
justified
in
so
holding
unless
it
could
be
argued
that
the
ease-
ment
benefitted
the
rest
of
the
thirty
acre
tract
to
which
it
was
adjacent,
and
belonged
with the
remaining
tract
of
land.
"A
way is
never
presumed
to
be
in
gross
when
it
can
be
construed
to
be
ap-
purtenant,
and
the
parties
are
presumed
to
contract
in
reference
to
the
condition
of
property
at
the time
of
the
sale."
'2
This
was
not
discussed
in
the
case
though
there
is
authority
to
the
effect
that
an
easement
may
be
appurtenant
to
land
even
though
the
servient
tenement
is
not adjacent
to
the
dominant.
3
It
would
seem,
however,
that
the
better
view
is
that
this
was
an
easement
in
gross
and
the
parties
intended
it
to
be
a
personal
right
to
help
the
plaintiffs
in
the
advertising
of
the
subdivision.
If
the
defendants
introduce
oral
evidence
insufficient
to
es-
tablish
that
there
was
an
agreement
when
the
deed
was
executed
which
permitted
removal
of
the
signs
at
the
expiration
of
eighteen
months
from
the
date
of
the
deed,
the
court
must
decide
the
time
limit
to
place
on
this
easement,
as no
particular
time was
set
forth
in
the reservation
in
the
deed itself.
4
Because
of
the
ambiguity
of
the
written
instrument
the court
allowed
parol
evidence
and
extraneous
facts
to
show
the intention
of
the
parties.
It
could
reasonably
be concluded
that
the
sole
purpose
of
the
sign
was
to
advertise
the
land
and
therefore the
sign
should
be
left
unimpaired
until
this
purpose
was
completed.
There
is
a
well
es-
tablished
rule
that
an
easement
may
be
terminated
by
the
comple-
tion
of
the
purpose
for
which
it
was
granted
inasmuch
as
the
reason
for,
and
necessity
of,
the
servitude
are
at
an
end.
Thus,
if
an
ease-
l.
Reed
v.
Dent
14
Va.
156,
162.
72
S.E.2d
255,
258
(1952).
2.
French
v.
Willam. 82
V.
462,
4
S.E.
591 (1887).
3. 3
Tiffany,.
Real Property
§
762
(3rd
ed.
1939).
4.
Id.
at
§
817.
ment
is
granted
for
a particular
purpose
only,
the
right
continues
while
the
dominant
tenement
is
used
for
that
purpose,
but
ceases
when
the
specified
use
ceases.
5
This
impliedly
refers
to
easements
appurtenant
but
is
equally
reasonable
to
determine
the
duration
of
easements
in
gross.
Under
such circumstances
the
court
would
be
justified
in
issuing
an
injunction
to
last
as
long
as
the
complainants
had
good
cause
to
advertise
the
lots
of
the
subdivision
for
sale
and
development.
As
an
easement
in
gross
is
a
personal
interest,
it
would
not
be
transferable
to
a
subsequent
real
estate
dealer
who
might
purchase
the
entire
tract.
The
case of
Stoke's
v.
Matney
illustrates
the
attempt
to
extend
an
appurtenant
easement
beyond
the servient
estate.
The
easement
originally
granted
to
Ritter
was
appurtenant
to
that
tract
of
land
owned
by
Ritter.
The
weight
of
authority
supports
the
rule
that
an
easement
may
be
appurtenant
to
land
even
though
the
servient
tenement
is
not
adjacent
to
the
dominant.
6
This
would
not
apply
to
the
Stokes
case,
however,
as
the
Slocum
and
Kroll
tracts
cannot
be
called
dominant
estates.
An
easement
appurtenant
to
land
cannot
be
converted
into
an
easement
in
gross.
To
hold
contra
to
this
would
subject the
servient
tenement
to
numerous
burdens
which
clearly
was
not
the
intention
of
the
parties.
"Owner
of
an
appurtenant
easement
cannot
separate
it
from
the
dominant
estate
by
grant
so
as
to
convert
it
into
an
easement
in
gross.
He
cannot
enlarge
the
right
or
retain
any
in-
terest
therein
separate
and
distinct
from
the land
to
which
it
be-
longs.
The
owner
of
the
dominant
tenement
cannot
subdivide
the
easement
by
granting
rights
in
it
to
one
who
has
no
title
or
interest
in
that
estate.
For
example,
the
owner
of
a
way
cannot
authorize
a
stranger
to
use
it
when
he
is
not
coming
to
or
from
the dominant
tenement."
' 7
A
fortiori
the
grantee
of
an
easement
could
not
author-
ize
a stranger
to
use
it
when
he
is
not
coming
to
or
from
the
dominant
tenement.
A
landowner
who
has
the
right
to
use
a
private
way
going
to
and
from
certain
land cannot
go
out
of
the
limits
of
the
way
nor
use
it
as
an
easement
for
the
benefit
of
any
other
tract
of
land
than
that
for
which
it
was
originally
established.
8
5.
Hahn
v.
Baker
Lodge.
21
Or. 30.
27
P.
166.
13
LRA.
158
(1891).
6.
Jonesv.
Stevens,
276
Mass.
318,
177
N.E.
91 (1931).
7
Woodv.
Woodley,
160
N.C.
17.
75
S.E.
719
(1912).
8.
Clark
v.
Reynolds.
125
Va.
626,
100
S.E.
468
(1919).
An
easement
appurtenant
is
a
burden
upon
the servient
estate.
The
owner
of
the
dominant
estate
cannot
by
any
act
of
his own,
in-
dependent
of
the
consent
of
the
owner
of
the servient estate,
use
the
easement
or
authorize
it
to
be
used
for
the
benefit
of
any
lands
other than
those
to which
it
adheres,
or
without
such
consent
broad-
en
the
use beyond
its
creation.
9
Otherwise
the
burden
upon
the
ser-
vient
estate
would
thereby
be
increased
without
the
consent
of
the
owner
thereof.
Such
an
easement
cannot
be
severed
from
the
estate
to
which
it
is
attached
and
made
the subject
of
an
independent
con-
veyance;
nor
can
an
easement
appurtenant
by
any
act
of
the
owner
of
the
dominant
estate
be
changed
into an
easement in
gross.
10
"The
way
is
granted
for
the
benefit
of
the
particular
land,
and
its
use
is
limited
to
the
use in connection
with
the
enjoyment
of
such
land.
Such
a
way
cannot
be
converted into
a
public way
without
the
consent
of
the
grantors
and
the
grantors
have
the
right
to
rely
on
its
use
being limited
to
the
purpose
for
which
it
is
granted--or
in
other
words,
its
legal
use,-and
can
prevent
the
use
of
the
way
for
purposes
not
authorized."'
1
One
who,
in connection
with
a
grant
of
a
parcel
of
land,
receives a
grant
of
an
easement
to
himself,
heirs, and
assigns
of
a
grant
of
way across
remaining
property
of
the
grantor
to
the
high-
way,
cannot
grant
rights
in
the
easement
to
a
stranger
having
no
interest
in
the
land
granted,
since
it
is
solely
appurtenant
to
the
tract
conveyed.
1
2
"Even
rarer
than
cases
of
changing
easements
in
gross
to
easements
appurtenant
are
cases
in
which
the intention
appears
to
permit what
was
created
as
an
easement
appurtenant
to
be
changed
into
an
easement
in
gross.
Hence
it
will
be
assumed,
in
the
absence
of
an
affirmative
showing
to
the
contrary,
that
an
appurtenant
easement
cannot
be
divorced
from
the
dominant tenement
in
such
a
way as
to
permit
it to
become
an
easement in
gross
or
become
appurtenant
to
another
tenement."
13
It
is
submitted
that
the
foregoing
statements
are
all
in
accord
with
the
decision
of
the court
in
the
Stokes
case.
However an
in-
teresting
possibility
exists
in
regard
to
the wording
of
the
easement.
9.
3
Tiffany,
Real
Property
§
761,4.
213.
10.
Kixmiller
v.
Baltimore
& 0.
S.
'.
Ry.
Co..
60
Ind.
App.
686.
111
N.E.
401
(1891).
11.
Hoosier
Stone
Co.
v.
Malort.
129
Ind.
593.
29
N.E.
412.
414
(1891).
12.
Wood
v.
Woodley.
160 N.C.
17.
75
S.E.
719
(1912).
13.
2
American
Lavi
of Property
§
8.
73,
p.
285
(1952).
The
deed
to
Ritter
stated
that
the
easement
is
"appurtenant
to
any
and
all
the
coal
....
in,
on
or
under
the
tract
of
land
herein
de-
scribed,
and
in,
on
and
under
any
other
lands now
owned
or
here-
after
acquired
by
the
party
of
the
second
part
(Ritter),
its
successors
or
assigns."
[Italics
added]
It
has
been
held
that
where
an
easement
has
been
granted
or
reserved
by
deed,
the
ordinary
rule
which
governs
in
the construction
of
other
writings
prevails,
namely
that
the rights
of
the
parties
must
be
ascertained
from
the
words
of
the
deed
and
the
extent
of
the
easement
cannot
be
determined
from
any
other
source.
14
Thus
it
would
appear
that
if
Stokes
were
to
convey
the
Slocum
and
Kroll
tracts
to
Ritter
and
have
Ritter
re-
convey
the
tracts,
this
would
satisfy
the
language
of
the
deed
and
Stokes would
have
a
valid easement
appurtenant
to
those
lands.
Elizabeth
Graham
Booth
14.
St1en
Putmey
Shoe
Co.
v.
Ricdmanl.
F.P.
Ry.
Co..
116
Va.
211.
81
S.Z
93
