371 P.2d 647 (Nev. 1962)
In 1938 the Glenbrook Company granted Henry Quill an easement over its roads from U.S. Route 50 to an 80-acre parcel.1 The conveying instrument granted an easement and right-of-way with full right of use over the roads of the grantor as now located or as they may be located hereafter to the described Quill property.2 The grantee received the right to have and to hold the easement unto the grantee, his heirs and assigns forever.3
Henry Quill died in 1943.4 In 1945 the administratrix of his estate sold the 80-acre property with appurtenances to Kenneth F. Johnson for $8,600.5 In 1960 Johnson sold the property to Cox and Detrick for $250,000, with $50,000 paid down and the balance secured by trust deed.6
Cox and Detrick propose to subdivide the parcel into a minimum of 40 or a maximum of 60 separate parcels of one acre or more, each limited to a residence and guesthouse for permanent occupancy.7 They have spent approximately $17,000 on preliminary work that included leveling the back road, drilling a well, testing soil, and staking four one-acre parcels released from the deed of trust.8 The 80 acres are bordered on two sides by Glenbrook Company land and on two sides by land owned by George Whittel, and the Quill Easement provides the only existing ingress and egress.9
Glenbrook Company has operated a seasonal family resort on its Lake Tahoe frontage for more than 25 years, offering approximately 30 guest cottages, a golf course, riding stables, tennis court, dining room, bar, and other facilities.10 Its roads are generally unpaved except for the main road; the back road was narrow, unpaved, and wide enough for only one car with occasional turnouts when extended to the Quill property in the late 1930s.11 After a trial without a jury the lower court entered judgment declaring three categories of limitations on the easement and declaring the proposed subdivision use an illegal burden; Cox and Detrick appealed.12
Whether the 1938 Quill conveyance is clear and unambiguous as to the extent of the easement?13
Yes. The conveying instrument granted an easement and right-of-way with full right of use over the roads of the grantor as now located or as they may be located hereafter from U.S. Route 50 to the Quill property.16 The trial court erred in deciding that the phrase full right of use was subject to judicial interpretation based on extrinsic evidence.17 The process which creates an easement necessarily fixes its extent and the conveyance here is clear.18
The 1938 Quill conveyance is clear and unambiguous as to the extent of the easement.19
Related opinions on this issue
McNAMEE, J., concurs.20
Whether the trial court properly restricted the easement to ingress and egress by a single family in occupancy and their guests?21
The easement was appurtenant to the 80-acre tract.22 The terms to have and to hold said right-of-way and easement unto the said grantee, his heirs and assigns forever make clear that one who succeeds to possession of the dominant tenement succeeds to the privileges of use of the servient tenement authorized by the conveyance.23 Those who succeed to possession of each of the parts into which the dominant tenement may be subdivided also succeed to such privileges of use unless otherwise provided by the terms of the conveyance.24
No. The Quill Easement was appurtenant to the 80-acre tract.25 The conveyance contains no restriction that the easement is limited to single possession.26 The lower court judgment restricting the use to ingress and egress by a single family in occupancy and their guests destroys the appurtenant character of the easement.27 The judgment imposes a limitation that may not be imposed by judicial declaration.28
The trial court did not properly restrict the easement to ingress and egress by a single family in occupancy and their guests.29
Whether the owners of the dominant estate may maintain, repair, or improve the way within its original borders?30
As a general rule, the owner of an easement may prepare, maintain, improve or repair the way in a manner and to an extent reasonably calculated to promote the purposes for which it was created, provided the owner does not thereby cause an undue burden upon the servient estate or an unwarranted interference with the independent rights of others who have a similar right of use.31
Yes. Cox and Detrick leveled or rough graded the back road.32 That action was confined to the area within the exterior borders of the road as they existed when the easement was originally granted.33 The action was an improvement reasonably calculated to promote the purposes for which the easement was created.34
The action did not in itself cause an undue burden upon the servient estate.35 The owners of the easement may maintain, repair and improve the way in a manner reasonably calculated to promote the purposes for which the easement was created.36 Such acts must be confined to the area within the exterior borders of the way as it existed on January 7, 1938.37 Such acts will not cause an undue burden upon the servient estate.38
The owners of the dominant estate may maintain, repair or improve the way within its original borders subject to the stated limitations.39
Whether the owners of the dominant estate may widen the way beyond the width existing at the time of the grant?
When width is not specified, the instrument must be construed in the light of facts and circumstances existing at its date and the parties' intention controls as to width.40 The only evidence here indicates Quill desired a way wide enough for one car; therefore that was the parties' intention in 1938.41
No. The back road at the time of grant was a small road wide enough for one car with occasional turn outs.42 There is no evidence that the parties intended a wider road.43 The owners of the easement may not widen the way.44 Its width is limited by the evidence introduced to the width of the way on January 7, 1938.45 For the back road that width is sufficient only for one car with occasional turn outs.46
The owners of the dominant estate may not widen the way beyond the width existing at the time of the grant.47
Whether the servient owner may barricade the golf course road?
Yes. The purpose of the conveyance is to assure ingress to and egress from the dominant parcel over the servient estate to U.S. Highway 50.51 It is admitted by Cox and Detrick that Glenbrook Company could discontinue use of or barricade the existing roads and relocate them without infringing upon the Quill Easement so long as ingress and egress were given to the dominant parcel over the roads as relocated.52 The owner of the servient estate has the right to relocate the way at its own expense.53
That right includes the right to barricade the portion of the existing way referred to as the golf course road.54
The servient owner may barricade the golf course road.55
Whether a declaratory judgment may determine in advance that the proposed subdivision will constitute an unreasonable burden on the servient estate?56
Every judgment after trial must be based on evidence presented and cannot be based upon assumptions as to future facts.57 Whether an unreasonable burden will result must await factual proof when the use occurs.58 A declaratory judgment should deal with a present ascertained or ascertainable state of facts.59
No. The announced intention by the owners of the dominant estate does not of itself constitute an unreasonable burden.60 Whether an unreasonable burden will result must await factual proof when the use occurs. The judgment declaring that the proposed use would constitute an illegal burden and surcharge upon the servient estate is premature.61 Factual circumstances which may arise in the future cannot be fairly determined now.62
A declaratory judgment should deal with a present ascertained or ascertainable state of facts.
A declaratory judgment may not determine in advance that the proposed subdivision will constitute an unreasonable burden on the servient estate.63
Related opinions on this issue
Chief Justice Badt concurred in the conclusions reached by Justice Thompson.64 He expressed concern that some expressions used in the opinion might in some future case be taken to limit unduly the power of the court in actions under the Declaratory Judgments Act.65 While it is undoubtedly true that factual circumstances which may arise in the future cannot be fairly determined now, it is likewise true that an expressed purpose and intention to perform acts that will, under satisfactory proof, surcharge the servient tenement with an unreasonable burden is a present threat of invasion of plaintiff's rights and subject to declaratory determination.66
It need not await the event.67