Burcky v. Knowles
1980 N.H. LEXIS 267, 413 A.2d 585, 120 N.H. 244 (1980)
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Rule of Law:
An easement is presumed to be appurtenant and runs with the land when it benefits a dominant estate, and the absence of words of inheritance, such as 'heirs and assigns,' in the creating instrument has no legal effect on its permanence.
Facts:
- In 1934, Samuel Garland sold a parcel of land to the defendants' predecessor in title.
- In the 1934 deed, Garland reserved a 'right to pass and repass over a strip of land fifteen (15) feet in width' across the conveyed parcel.
- Garland retained ownership of the adjacent land, which the reserved right of way served.
- In 1953, Garland sold an additional, contiguous lot to the same predecessor in title.
- The 1953 deed's reservation continued the original right of way and added the language 'his heirs and assigns' to assure access to Garland's remaining pasture land.
- The plaintiffs are the current owners of the remaining land originally retained by Garland (the dominant estate).
Procedural Posture:
- The plaintiffs, successors in title to the dominant estate, filed a petition for a declaratory judgment in the trial court to determine their rights to an easement over the defendants' land.
- The trial court found that the 1934 deed created an easement in gross, personal to the grantor Garland.
- Based on its finding, the trial court denied the plaintiffs the right to cross the defendants' land.
- The plaintiffs appealed the trial court's decision to the New Hampshire Supreme Court.
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Issue:
Does a deed reservation that grants a right of way without using words of inheritance, such as 'heirs and assigns,' create an easement in gross that is personal to the grantor, or an easement appurtenant that runs with the land?
Opinions:
Majority - Bois, J.
No. A deed reservation granting a right of way without words of inheritance creates an easement appurtenant that runs with the land. The court reasoned that the law strongly favors the construction of easements as appurtenant rather than in gross, especially when the easement benefits a dominant estate. The 1934 deed created a classic appurtenant easement by reserving a right of way over the conveyed (servient) estate to benefit the retained (dominant) estate. The court found the language 'right to pass and repass' to be clear and unambiguous, meaning the trial court erred by considering extrinsic evidence of the parties' intent. Most significantly, the court held that words of inheritance ('heirs and assigns') are a feudal-era relic that never became part of New Hampshire law and their absence is legally irrelevant in determining whether an easement is perpetual. Therefore, the easement was appurtenant from its creation in 1934 and passed to all subsequent owners of the dominant estate, including the plaintiffs.
Analysis:
This decision solidifies the strong judicial preference for appurtenant easements over easements in gross, promoting certainty in land titles. It authoritatively eliminates any remaining influence of the common law requirement for words of inheritance to create a perpetual interest in land in New Hampshire, explicitly overruling prior inconsistent case law. This simplifies property law by focusing the inquiry on the relationship between the easement and the land it serves, rather than on archaic drafting formalities. The case clarifies that so long as an easement benefits a dominant parcel, it will be treated as running with the land unless there is a clear, contrary provision.
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