Cushman

This is a classic hornbook case. Concepts of easements “appurtenant” or “in gross,” and “dominant” versus “servient” tenements, which were mystifying in law school, the bane of bar examinations, and buried during long legal and judicial careers, now surface.

A [appellant] owner of Blackacre since 1976, seeks to subdivide his 16-acre parcel and obtain access by a road across Whiteacre (owned by B [respondents]) to a public street. A’s predecessor in title C [Murphy] had used the road only ten times per year—five each in February and July—to bring in equipment for spraying and picking in his apricot orchard. B’s predecessor in title D [Anderson] had in 1947 carved out Whiteacre from a larger parcel, Greenacre, reserving the road easement now being sought by A. By deed, describing the easement as appurtenant, reservation was granted by D to a landowner adjacent to Greenacre, E [Davies]. In 1967, Western Title became titleholder of the balance of Greenacre, and in 1976 granted A an easement across its property, and across B’s property.

The road, improved and maintained by B, E and his successors, is used by them for access to and from their single family residences. A, and…