Chapter 12 - § 12.2 • INTERPRETING WRITTEN EASEMENTS

• Jurisdiction: Colorado

§ 12.2 • INTERPRETING WRITTEN EASEMENTS

An easement can be either "appurtenant" or "in gross." An appurtenant easement attaches to a parcel of land for the benefit of that parcel, which is known as the "dominant estate." The parcel subject to and burdened by the easement is known as the "servient estate." An example is an access road crossing one parcel (the servient estate) to reach another (the dominant estate). On the other hand, an easement in gross is not appurtenant to any parcel nor does it belong to someone because of that person's ownership of a particular parcel of land, but it gives the owner the right to use the land of another.¹ The classic example of an easement in gross is a cross country power line. Easements in gross do not have dominant estates, but they do have servient estates.² At common law, easements in gross were not assignable because they were considered personal to the holder.³ However, the modern trend in Colorado and elsewhere is to hold that easements in gross are assignable.⁴

An easement gives the owner of the dominant estate the right to do something on the servient estate holder's land. Ideally, the documentation creating the easement will spell out what the dominant estate holder may do, where it can be done, and who the dominant estate holder is in the first place. When the written easement is not so clear on one or more of these issues, litigation can ensue. Typically, easements for private roads and rights of way are conveyed by deed. It can be an easement deed that conveys nothing else, or it can be part of a deed conveying property in fee, together with the easement that serves the property. A subdivision plat can create an easement.⁵ Easements can also be created by reservations in deeds, such as when an owner conveys part of his or her property, but reserves an easement across the conveyed portion to reach the retained portion. Courts will construe reservations in deeds more strictly than grants and resolve ambiguities against the grantor.⁶ Easements can be conveyed with or without warranties. The deed warranty statutes apply.⁷

If the question in the quiet title case is the interpretation of a written easement, then Lazy Dog Ranch v. Telluray Ranch Corp.⁸ is the place to start. That case reiterates longstanding Colorado law that courts must construe deeds to determine the intention of the parties. Lazy Dog then expands on that concept considerably. The court there held that a flexible approach is proper when...