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Keywords

trialeasement

easement

Related Cases

Herren v. Pettengill, 273 Ga. 122, 538 S.E.2d 735

Facts

Herren owned a 71-acre tract of land in Union County, which she subdivided after conveying five acres, including a house, to Pettengill in 1998. The deed included a 40-foot road and utility easement, identified as Richard Road, providing access to a public road. After the conveyance, Herren began constructing a new road and intended to close Richard Road, prompting Pettengill to protest due to the new road's steeper grade and less direct access.

Herren owned a 71 acre tract of land in Union County on which a house was located. In 1998 she conveyed five acres, including the house, to Pettengill.

Issue

Whether the owner of the servient estate can unilaterally change or relocate an easement without the consent of the owner of the dominant estate.

Rule

An easement with a fixed location cannot be substantially changed or relocated without the express or implied consent of the owners of both the servient estate and the dominant estate.

The majority rule in the United States is that an easement with a fixed location cannot be substantially changed or relocated without the express or implied consent of the owners of both the servient estate and the dominant estate, absent reservations contained in the instrument creating the easement.

Analysis

The court applied the majority rule, which states that once an easement's location is fixed, it cannot be altered without consent. Herren's argument for relocation was rejected as it would undermine the certainty and fairness principles in real property law. The court emphasized that the original agreement considered all market factors, and any substantial benefits from relocation should be negotiated between the parties rather than imposed by the court.

Although reasonable arguments can be made in support of the drafter's position allowing the owner of the servient tenement to unilaterally make reasonable changes in the location of an easement, we conclude that the majority rule is sounder.

Conclusion

The court affirmed the trial court's decision, holding that Pettengill's easement could not be unilaterally relocated by Herren.

Judgment affirmed.

Who won?

Richard Pettengill prevailed in the case because the court upheld his right to maintain the existing easement without alteration by the servient estate owner.

The Supreme Court held that the easement could not be changed or relocated without dominant owner's consent.

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