O'donovan v. Mcintosh

728 A.2d 681 (1999)

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Nature of the Case

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Facts

In 1987, McIntosh purchased real property. That property is adjacent to the Fish parcel. McIntosh also purchased an option on the Fish parcel and then optioned both his property and his option on the Fish parcel to Casco Partners, Inc., which sought to construct a multiple-lot subdivision on the Fish parcel. Casco Partners did not proceed with the subdivision and McIntosh's option on the Fish parcel lapsed. McIntosh decided to sell his property to D and retain a right of way and an easement across it that would allow access to and the development of the Fish parcel. McIntosh conveyed the property to D by warranty deed, reserving an easement for access to the Fish parcel. McIntosh conveyed the property to D by warranty deed, reserving an easement for access to the Fish parcel. The deed stated: Excepting and reserving for the benefit of the Grantor and his heirs and assigns, a right of way and easement for access (50) feet in width to be used in common with the Grantee, her heirs, and assigns, extending northerly from Foreside Road . . . . Said right of way and easement shall (1) be for the purpose of ingress and egress to and from the lot herein conveyed and other land adjacent to and behind the above described parcel, commonly known as the 'Fish parcel' and (2) not be located any closer to the house now standing on the property than 27 feet. The assigns of the Grantor herein shall be limited to those building and/or occupying a subdivision located on the above-mentioned 'Fish parcel.' Also reserving the right to install utilities . . . over and under said right of way for the use and benefit of said other land. The foregoing right of way and easement shall also include the right of Grantor to enter on Grantee's land as is reasonably necessary to maintain, repair, and replace said utilities. The foregoing right of way and easement shall be subject to a duty owed by the Grantor to the Grantee, her heirs, and assigns, to maintain, replace, and repair the Grantee's property in the event of any disruption or damage caused to that property by the use of this right of way and easement. The deed incorporated by reference an attached side agreement that would be 'binding on subsequent owners' of the easement and in which D agreed not to actively oppose any application for development permits for the Fish parcel. P entered into a purchase and sale agreement with the owners of the Fish parcel. P entered into a purchase and sale agreement with McIntosh for the easement. P filed an application for subdivision approval and the application was eventually suspended after a dispute arose regarding the transferability of the easement. P filed a complaint against McIntosh and D seeking, inter alia, a declaratory judgment concerning his right to purchase and sell the easement. McIntosh and P filed a joint motion for a partial summary judgment, arguing that the easement may be transferred, conveyed, or otherwise assigned. Dobjected to the motion and filed a cross-motion for a summary judgment. The court granted D's motion, and P appealed.