Frenning v. Dow

544 A.2d 145 (1988)

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Nature of the Case

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Facts

Ds' predecessor in title (Gray) granted to Ps' predecessor (Shaw) an easement to cross Ds' land 'with teams loaded or not, Horseback, or on foot, doing as little damage as may be * * * to him his heirs & assigns forever.' At that time the dominant tenement consisted of 102 acres of land. Since that time, Ps' predecessor and Ps have acquired contiguous parcels of land so that the total holdings of Ps at the time of trial consisted of 257 acres. The trial justice found that P had used the new lands as they did the originally granted land. The court found that these additional uses by Ps have materially increased, and have burdened Ds' property far more heavily than the right granted. The court found that there was no way to sever the increased burden (and thus stop the trespass) so as to preserve the original rights and servitude, there being no practical way to monitor and police the user. The court then concluded that the easement had been extinguished or forfeited. P appealed.