O'Donovan v. McIntosh
728 A.2d 681 (1999)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
An easement in gross is assignable if the parties who created the easement manifested a clear intent for it to be assignable in the creating instrument.
Facts:
- John A. McIntosh Jr. purchased property at 184 Foreside Road, which was adjacent to an undeveloped parcel known as the 'Fish parcel.'
- McIntosh sold the Foreside Road property to Susan Huggins.
- In the warranty deed conveying the property, McIntosh reserved a 50-foot-wide easement across Huggins's property for the purpose of accessing and developing the Fish parcel.
- The deed specified that the easement was for the benefit of 'the Grantor and his heirs and assigns' and that 'the assigns of the Grantor herein shall be limited to those building and/or occupying a subdivision' on the Fish parcel.
- A side agreement, incorporated by reference into the deed, stated it was 'binding on subsequent owners' of the easement.
- Timothy P. O'Donovan, a developer, entered into an agreement to purchase the Fish parcel.
- O'Donovan then entered into a separate purchase and sale agreement with McIntosh to acquire the easement across Huggins's property.
Procedural Posture:
- Black Bear Development, Inc. (O'Donovan's company) filed an application for subdivision approval with the Town of Falmouth Planning Board.
- The Board suspended the application after the dispute over the transferability of the easement arose.
- O'Donovan filed a complaint in the Superior Court (trial court) against McIntosh and Huggins, seeking a declaratory judgment regarding his right to purchase and use the easement.
- O'Donovan and McIntosh filed a joint motion for partial summary judgment, arguing the easement was assignable.
- Huggins filed a cross-motion for summary judgment, arguing the easement was not assignable.
- The Superior Court granted summary judgment in favor of Huggins, declaring the easement was not assignable.
- O'Donovan and McIntosh (appellants) appealed the Superior Court's judgment to the Supreme Judicial Court of Maine.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Is an easement in gross assignable when the deed creating it expressly states that it is for the benefit of the grantor and his 'heirs and assigns'?
Opinions:
Majority - Dana, J.
Yes. An easement in gross is assignable when the parties clearly expressed that intent in the language of the deed. Although prior case law has categorically stated that easements in gross are not assignable, the court has never applied that rule to frustrate the clear intent of the parties. The deed's explicit language reserving the easement for the benefit of the grantor and his 'heirs and assigns' demonstrates a clear intent to make it assignable. This holding is consistent with the modern trend in property law, supported by scholarly authorities like the Restatement of Property, and aligns with the general policy favoring the free alienability of property interests. The court rejects stare decisis on this issue because the traditional rule against assignability is based on outdated reasoning and is disapproved of by most modern authorities.
Dissenting - Wathen, C.J.
No. An easement in gross is personal and not assignable under firmly settled Maine law. The doctrine of stare decisis requires adherence to this established precedent, particularly in the area of real property rights where stability and predictability are paramount. To overturn this long-standing rule interferes with the valid reliance interests of landowners and title examiners who have operated under the assumption that such easements are not transferable. If such a change is needed, it should be addressed by the Legislature, as a judicial decision retroactively affects past transactions and can upset settled expectations.
Analysis:
This decision marks a significant evolution in Maine's property law, shifting from the traditional, rigid rule that easements in gross are non-assignable to a modern, intent-based approach. By prioritizing the expressed intent of the creating parties, the court aligns Maine with the majority of jurisdictions and the Restatement of Property. This ruling enhances the utility and commercial value of easements in gross, making them more flexible instruments for land development. However, as the dissent warns, this change could create uncertainty for existing titles that were examined and conveyed based on the old rule, potentially leading to future litigation over long-dormant easements.
