Facts: D owned four lots with its house on lots 1 and 2. D conveyed two-thirds of lots 3
and 4 to his son-in-law Six. On the remaining one third, D erected a dwelling and garage
for rental purposes. The deed from D to Six contained a reservation that a right-of-way
10 feet in width along the South side of the two lots be used for the benefit of the
property in the rear (the rental property). Later, Six conveyed the property to McGhee
with the same reservation. Then, McGhee conveyed the property to P, without any
reservation. All three deeds were made with general warranty and the first two were duly
recorded. Despite the easement D had on the south side, he began to use it on the north
side of the property when the Sixes owned it, and has used it ever since, with no
objections by the Sixes, McGhees, or P until this proceeding. There is no explanation for
this change of location. Both the Sixes and McGhees were aware of the south side right
of way and of D’s use of the north side. P wrote D referring to the easement stating it
was not to be used as a parking lot. P later sent another letter to D informing him that the
easement was along the south side of the property and a complaint about the use of a
water line which had not been reserved and wanted to discuss the erection of a fence. P
claims that there is no easement over the north side and the south side easement has been
abandoned by non-user. The trial court held it had not been abandoned.
Issue: Can P enjoin D form using a driveway that is not part of a specified easement
when D did not know which driveway contained the easement and P has developed part
of the true easement?
Holding: The court will not require the expensive removal of the obstruction, so long s
the right of way along the north side be made available. However, D must desist from
using the easement for any other purpose than the use of the rear one third portion for the
right of passage to that property.
Rationale:
- Abandonment is a question of intent. A person with an easement may abandon
and extinguish such rights by acts in pais; and a cessation of use coupled with acts
or circumstances clearly showing an intention to abandon the right will be as
effective as an express release of the right. However, mere non-user of an
easement created by deed is not abandonment. In addition to non-user, there must
be acts or circumstances that clearly manifest an intention to abandon, or an
adverse user by the owner of the servient estate, acquiesced in the owner of the
dominant estate for a certain period of time prescribed thru law.
- The burden of proof to show abandonment is upon the party claiming such
abandonment (here P). D may have been mistaken as to where the easement was
located, but it appears that all other grantors were similarly mistaken. This
mistaken use does not amount to an intention to abandon his right of way.
- Part of the correct easement is terraced and planted with shrubbery and a tree. P
claims that D is estopped from using it because it is occupied (and removal would
be extremely expensive) and D knew where the Sixes were building and should
have known it was on the easement area. There is no evidence however, that D
knew the house was encroaching on the right of way because he did not know
where the easement was.
- “It is essential to the application of the principles of equitable estoppel, or by
estoppel in pais, that the party claiming to have been influenced by the conduct or
declarations of another to his injury, was not only ignorant of the true state of fact,
but had no convenient and available means of acquiring such information, and
where the facts are known to both parties, and both had the same means of
ascertaining the truth, there can be no estoppel. Here, P had both actual and
constructive knowledge of the situation. They negligently failed to have their title
examined before they purchased the property
- To resolve this matter, the court applies the maxim of “He who seeks equity must
do equity.” A court of equity may in a case in which the principles and rules of
equity demand it, condition its granting of the relief sought by the complainant
upon the enforcement of a claim or equity held by D which the latter could not
enforce in any other way.