Facts: P and D owned adjacent parcels of real estate. P, the owner of the dominant
estate, commenced injunctive relief against D, the owner of the servient estate seeking to
prevent D form obstructing various ways their right of way across D’s land to the Town
Road and to the seashore. P sought damages for alleged interference with their right of
access to a natural spring on D’s property. P wanted to pave a portion of the road near
the seashore and have widened the easement. D proposed relocating the easement at her
cost to alleviate a potentially dangerous situation and/or damage to her property. Trial ct
granted D right to relocate easement and denied Pl permission to pave. Reverse 1st and
P’s Argument: The power to relocate is not w/i the court’s discretion absent statutory
language, or agreement of both parties.
D’s Argument: Unilateral relocation should be granted in cases where the change is
slight, the servient owner will bear the cost, the terminable points remain unchanged, and
the new way is more convenient.
Issue(s): Whether the court had authority to relocate plaintiff’s right-of-way, and if
paving right-of-way to town road would result in material change in surface of right-ofway
would give rise to added burden on servient estate?
Holding: Reversed. The trial court had no authority to move the landowners’ easement
over the neighbor’s land without the landowners’ consent.
– In the great majority of jurisdictions the rule is, that once a location of an
expressly deeded easement is established, whether by the language of the
instrument creating the easement or by subsequent acts of the parties fixing on the
ground the location of a general grant of a right of way, the site location may not
be changed thereafter by either owner unless both parties consent to the
relocation, except however, where the document contains an express or implied
grant or reservation of power to relocate
– D argues that the court should change its holdings for these situations because: 1.
the change of location is slight; 2. D will bear the expense of the relocation; 3. the
new right of way retains the same terminal points as the old way; 4. the new way
is as convenient as, or more convenient than, the old way to the owner of the
Court Rationale: The deeds in the Pls chain of title contain express language in
unqualified terminology concerning a right of way to the Town Road. The deeds did not
fix the exact location of the right of way, the present location was fixed in 1896 and
hasn’t varied since. The Df was aware of the right of way when she purchased the
servient estate in 1963. An exception to the rule against relocation would introduce
considerable uncertainty into land ownership, and serve to proliferate litigation which the
rule intends to prevent. The owner of the dominant would be deprived of the present
security of his property rights in the servient estate and subject to harassment by the
servient owner’s attempts to relocate. A unilateral relocation rule could confer an
economic windfall on the servient owner who presumably purchased the land at a price
which reflected the restraints existing on the property.
An easement for a right of way does not permit the grantee to “disturb the soil upon the
fee,” of the owner of the servient estate. Even though the paving may suit the
convenience of the owners of the dominant estate such material change may give rise to
an added burden on the servient estate.
Rest. 3rd Property (Servitudes) – 4.8(3)
Unless expressly denied by the terms of an easement…, the owner of the servient estate is
entitled to make reasonable changes in the location or dimensions of an easement, at the
servient owner’s expense, to permit normal use or development of the servient estate, by
only if the changes do not
(a) significantly lessen the utility of the easement
(b) increase the burdens on the owner of the easement in its use and
(c) frustrate the purpose for which the easement was created
Majority position is still not allow any changes unless both parties agree to it
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