§7.8 - Duration and Termination of Easements

• Jurisdiction: Washington

§7.8 DURATION AND TERMINATION OF EASEMENTS

This section discusses how long an easement lasts and the circumstances under which it may terminate.

(1) Duration

An easement, unless expressly limited, lasts as long as the estate to which it is appurtenant exists. 28A C.J.S. Easements §138; 25 AM. JUR. 2D Easements §94. The intention of the parties drawing up the easement determines the duration of the easement. If the duration is clearly set out in the terms of the instrument creating the easement, the duration will be fixed and enforced. Thus, the easement will be permanent when the instrument by which the easement is created expressly so provides. A permanent easement may also be found in cases of strict necessity, or when the courts can reasonably surmise that the parties so intended. Brown v. Olmsted, 49 Wn.2d 210, 299 P.2d 564 (1956).

An easement implied from necessity continues only as long as the necessity that gave rise to it exists. Roediger v. Cullen, 26 Wn.2d 690, 175 P.2d 669 (1946). If an alternative method of ingress to or egress from the property comes into being, the way of necessity is extinguished.

(2) Termination

Termination of easements is not favored by the courts, and an easement can be extinguished only in some mode recognized by law. 28A C.J.S. Easements §140; 25 AM. JUR. 2D Easements §96. The owner of the servient estate upon which an easement rests may not, by his or her own volition, terminate or abridge an easement. King County v. Hagen, 30 Wn.2d 847, 194 P.2d 357 (1948); Nw. Cities Gas Co. v. W. Fuel Co., 13 Wn.2d 75, 123 P.2d 771 (1942). Unless the instrument that creates the easement so provides, an easement may not be terminated without the consent of the owner of the easement. Cowan v. Gladder, 120 Wash. 144, 206 P. 923 (1922).

Upon termination, the easement interest reverts to the owner of the underlying fee. In many cases, the identity of the fee owner will be obvious. However, identification of the fee owner may sometimes be difficult and dependent on the construction given the document granting the easement. See Lawson v. State, 107 Wn.2d 444, 730 P.2d 1308 (1986); Roeder Co. v. Burlington N. Inc., 105 Wn.2d 567, 716 P.2d 855 (1986).

(a) Merger

When easement ownership and fee title to the servient estate on which the easement is located become vested in the same person, the resulting merger of these rights terminates the easement. Coast Storage Co. v. Schwartz, 55 Wn.2d 848, 351 P.2d 520 (1960). The easement is terminated because ownership rights of the dominant and servient estates become merged in a title in fee. By definition alone, an easement is no longer present, because one cannot have an easement on one's own property. Id. The ownership of the two estates must be coextensive and equal in validity, quality, and all other circumstances of right. RESTATEMENT (THIRD) OF PROPERTY § 7.5 at 497-99 (2000); 28A C.J.S. Easement S §143; 25 AM. JUR. 2D Easements §100. For example, ownership of an easement and title to a life estate in the servient estate vested in the same person will not extinguish the easement, because the two estates are not equal. But if there are two or more dominant estates (or parcels) and there is merger as to one of the parcels, then the easement is extinguished as to that parcel, but not as to the other(s). Schlager v. Bellport, 118 Wn.App. 536, 76 P.3d 778 (2003). Upon severance of the dominant estate from the servient estate after merger, the former easement does not reappear unless created by express grant or implication. In Radovich v. Nuzhat, 104 Wn.App. 800, 16 P.3d 687 (2001), a conveyance of the dominant property "together with" easements belonging to the property, and along with an exhibit providing for an easement with a reference to the original (extinguished) easement, was sufficient to recreate the easement. Prior cases in which an easement was not recreated are discussed at some length in the opinion. It is also possible that in some cases the easement might be recreated by implication from prior use if the use has continued during the merger and the other requirements for a merger implied from prior use were met. An exception to this general rule, however, is a way of necessity, which, upon...