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14. The son's defense should
The neighbor's daughter brought an appropriate action against the son to obtain a definitive adjudication of the respective rights of the daughter and the son. In such lawsuit the son relied upon the defense that the location of the easement created by the grant from the original owner to the neighbor was governed by reasonableness and that the son's proposed solution was reasonable.
Six months ago the son notified the neighbor's daughter that the son planned to develop a portion of Greenacre as a residential subdivision and that the daughter should cease any use of the driveway. After some negotiations, the son offered to permit the daughter to construct another driveway to connect with the streets of the proposed subdivision. The daughter declined this offer on the ground that travel from Blueacre to the main road would be more circuitous.
12 years ago the owner's son succeeded to the original owner's title in fee simple in Greenacre and seven years ago the neighbor's daughter succeeded to the neighbor's title in fee simple to Blueacre by a deed which made no mention of a right-of-way or driveway. At the time the neighbor's daughter took title, there existed a driveway across Greenacre which showed evidence that it had been used regularly to travel between the main road and Blueacre. Blueacre did have frontage on a side road, but this means of access was seldom used because it was not as convenient to the dwelling situated on Blueacre as was the main road. The driveway originally was established by the neighbor. The neighbor's daughter has regularly used the driveway since acquiring title. The period of time required to acquire rights by prescription in the jurisdiction is 10 years.
30 years ago, the original owner of Greenacre, a lot contiguous to Blueacre, in fee simple, executed and delivered to his neighbor an instrument in writing which was denominated «Deed of Conveyance.» In pertinent part it read, «[The owner] does grant to [the neighbor] and her heirs and assigns a right-of-way for egress and ingress to Blueacre.» If the quoted provision was sufficient to create an interest in land, the instrument met all other requirements for a valid grant. The neighbor held record title in fee simple to Blueacre, which adjoined Greenacre.
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An easement appurtenant is one that benefits the dominant estate and «runs with the land» and so generally transfers automatically when the dominant estate is transferred. An appurtenant easement allows property owners to access land that is only accessible through a neighbor's land.
The basic ways of creating an easement are by express grant, implication, and prescription. An easement by express grant is one that is recorded and signed by the grantor and must comply with all the formalities of a deed. An easement by implication is created by operation of law rather than a written instrument. There are three types of easements by implication: (i) an intended easement based on a use that existed when the dominant and servient estates were severed; (ii) an easement implied from a recorded subdivision plan; and (iii) an easement by necessity. An easement by prescription is analogous to acquiring property by adverse possession. To acquire a prescriptive easement, the use must be open and notorious, adverse, and continuous and uninterrupted for the statutory period.
A is correct. The easement described in the facts is an easement appurtenant — one that benefits a specific piece of land. The creation of an easement appurtenant requires two pieces of property: a dominant estate and a servient one. This easement will automatically run with the land, and after being recorded for the first time does not need to be re-identified in any deeds accompanying later conveyances. The owner of the servient estate (the estate that the easement crosses) has the right to select the location of the easement. The only limit on such selection is that the location chosen must be reasonable.
In this case, the parties do not dispute whether the original owner of the servient estate reasonably chose its location. Instead, the son attempts to argue that moving the easement to a new location is permissible as long as the new location is selected reasonably. The easement, however, has already been reasonably located, and the servient estate does not possess any inherent right to relocate it.
B is incorrect. As explained above, an easement by prescription is similar to acquiring land by adverse possession. The easement at issue in this question was an express easement because it was agreed to in writing by the parents of both parties.
C is incorrect. As a general rule, an easement holder has a right to do «whatever is reasonably convenient or necessary in order to enjoy fully the purposes for which the easement was granted,» as long as he or she does not place an unreasonable burden on the servient land. However, this determination of reasonableness is determined when the easement is created.
D is incorrect. While it is correct that the easement holder can select the location for the easement when an easement is created, it is irrelevant to this question.