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Case Citations [1] (July 2018 through April 2019)

handle is hein.ali/retprtys0256 and id is 1 raw text is: PROPERTY 3D: SERVITUDES CHAPTER 1. DEFINITIONS § 1.2 Easement and Profit Defined Conn.App.2018. Subsecs. (1) and (3) quot. in ftn. Owners of a parcel of land brought a declaratory- judgment action against owners of other parcels of the land, seeking a declaration that a restriction contained in a 1941 committee deed conveying the land was void and unenforceable. The trial court found unenforceable the portions of the restriction that limited plaintiffs' use of their property to one dwelling house, prohibited the erection of any building within 25 feet of the southern boundary, and required approval of the grantor before erecting a structure on the property. Affirming, this court held that the trial court correctly found portions of the restriction void and unenforceable due to a significant and permanent change of circumstances that frustrated the purpose of the restriction. Citing Restatement Third of Property: Servitudes § 1.2 for the definition of easement, the court determined that the trial court did not err in finding that one lot, which was nominally similarly restricted as plaintiffs' lot, had been in violation of the restriction for many years, and that the restriction had been abandoned by failure to enforce it. Bueno v. Firgeleski, 183 A.3d 1176, 1186. Or.App.2018. Com. (d) cit. in case cit. in sup. Municipal utility company brought an action against property owner, seeking to establish its rights under an easement it owned over defendant's property to excavate, construct, and maintain a waterway channel allowing fish to migrate around its hydroelectric plant, and to prohibit defendant's interference. The trial court granted plaintiff s motion for summary judgment. Affirming, this court held that the trial court did not err in finding that there was no genuine issue of material fact as to whether it was reasonably necessary for plaintiff to remove gravel in order to maintain adequate flow of water to draw fish. Citing Restatement Third of Property: Servitudes § 1.2, the court noted that defendant correctly pointed out that plaintiff s easement rights were limited to uses that were reasonably necessary to accomplish the easement's intended purpose, but explained that defendant did not satisfy its burden of showing that there was a factual issue as to whether the gravel removal was reasonably necessary to maintain adequate stream flow for fish to be drawn to the channel. Eugene Water & Electric Board v. Miller, 417 P.3d 456, 459. Tex.2018. Com. (d) cit. in case quot. in disc. Owners of lots on a peninsula on a lake filed a declaratory judgment action against new neighbors who denied them access to an open-space area that the community had long considered public space for recreation and access to the lake, alleging that they had a right to use and improve this area by an earlier deed that reserved their rights to the area. The trial court entered summary judgment for plaintiffs; the court of appeals affirmed. This court affirmed in part, holding that plaintiffs were not required to file a trespass-to-try-title action to assert their alleged easement rights over the disputed area, because they were not claiming any ownership or possessory rights to the area, but rather, were seeking only to protect their alleged easement. The court cited Restatement Third of Property: Servitudes § 1.2, Comment d, in explaining that an easement was a nonpossessory interest that authorized its holder to use the property for only particular purposes, and that Texas's trespass-to-try-title statute did not apply to a claimant who sought to establish an easement, because the claimant did not have such a possessory right. Lance v. Robinson, 543 S.W.3d 723, 736. COPYRIGHT 02019 By THE AMERICAN LAW INSTITUTE All rights reserved ALI Printed in the United States of America For earlier citations, see the Appendices, Supplements, or Pocket Parts, if any, that correspond to the subject matter under examination.

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