Partney v. Russell

"A pure easement appurtenant is one where the land of one person, the servient tenement, is subjected to some use or burden for the benefit of the lands of another person, the dominant tenement." Bloomfield v. Weakland, 224 Or App 433, 445 (2008).

Petitioner sought, among other claims, declaratory judgement that Respondent possessed no valid easement. The Circuit Court granted summary judgement to Respondent. Petitioner assigned error to the court’s order on summary judgement, which found that Respondent had an appurtenant easement to Petitioner’s land. On appeal, Petitioner argued that no easement ever existed or, alternatively, was extinguished by merger. Respondent contended that the “Haney declaration” incorporated an express easement into their deed. An express easement is created when a grantor manifests their intent in unambiguous writing to convey an easement. See Bloomfield v. Weakland, 224 Or App 433, 445 (2008). Easements incorporate when a “property description in a legal document refers to a property description in another legal document.” Stott v. Stevens, 127 Or App 440, 445 (1994). Easements, however, are extinguished when both parcels become owned by the same person. See Restatement (First) of Property § 497 (1944). The Court found that the “Declaration” created no express easement because all land described was owned by the Haneys at the time. The subsequent deeds also did not create an express easement because they did not reference the “Declaration” with specific language. The Court therefore held that Respondent did not have an express easement. Nevertheless, the Court did not decide whether Respondent has an implied easement. Reversed and remanded.