Emerging from a Doctrinal Snarl
| Publication year | 2021 |
| Pages | 104 |
75 CBJ 104. Emerging From A Doctrinal Snarl
BY SUSAN F. FRENCH(fn*)
Starble's article (supra at 61) tells a remarkable tale in which the Connecticut Supreme Court created a tangled doctrinal snarl by first misreading an old precedent (Curtin, 1968) and then confounding it with another old precedent (Ozyck, 1988) to create the "unity of title" doctrine. When faced with the real-world consequences of its new doctrine, the court first sidestepped it (Carbone, 1992) by liberalizing another old doctrine, and then abandoned it (Bolan, 1999)%all in the course of 31 years and all, apparently, without realizing what it had done. Starble's is a cautionary tale of the dangers of misreading and over reading precedents that ends with a useful warning of the dangers still lurking in the court's misunderstanding of the precedents. But I see another story here, too, a story in which the court emerges from the strictures of 19th century doctrine to recognize the doctrinal core of servitudes law in the 21st century. In this story, the court should easily avoid the pitfalls Starble so ably points out.
The roots of this story lie in ancient law. Following old Roman law rules, nineteenth century English law prohibited the private creation of easements in gross. Landowners could only create easements if they were appurtenant to a particular parcel of land. An easement could not come into existence unless it was attached to a dominant estate. Part of the statement which got the Connecticut court in trouble%"No right of way % can be created without a dominant as well as a servient estate"%was an accurate description of English law. Early in the development of American law, courts jettisoned the old strictures on creating easements in gross. They continued to recite statements from the old precedents, however, adding in the word "appurtenant" to make them technically accurate. Although accurate, the statement was misleading because it appeared to be a prohibitory rule, when in fact it simply stated the criteria by which an easement would be judged appurtenant
rather than in gross.
The other old rule that appears in this story is a conveyancing rule. A landowner could use the word "reserve" when retaining an easement for himself as an appurtenance to his retained land, but had to use the word "grant" to...
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