View opinion on Lexis AdvanceWhether an easement in gross acquired by prescription is apportionable or assignable
Property II, Pages 557–560
Heydon v. MediaOne
Court of Appeals of Michigan, 2007
Facts:
Detroit Edison acquired a prescriptive easement to transmit electricity over plaintiffs' property. Edison then agreed to allowed defendant to also place their cable lines on the same utility poles on plaintiffs' property.
Plaintiffs sued for trespass and damage to their land.
Issue:
Page 557, Paragraph 2, End
Rule:
"Courts have generally concluded [however] that an easement in gross is capable of division when the instrument of creation so indicates or when the existence of an 'exclusive' easement gives rise to an inference that the servitude is apportionable." In this context, "exclusive" means that the "easement holder has the sole right to engage in the type of use authorized by the servitude." In other words, the grantor does not retain common rights with the easement holder to engage in the same activity for which the easement is granted.
Reasoning:
[T]here is no evidence that plaintiffs could or did use the easement for the purpose of erecting and maintaining power lines. Edison having that sole privilege, its easement, like APCo's in Jackson, is an exclusive, prescriptive easement in gross.
There is no evidence that the addition of defendant's line would unreasonably or materially increase the burden on plaintiffs.
Holding:
[A] commercial, exclusive easement in gross acquired by prescription can be apportioned unless contrary to the terms of the servitude, or unless the division unreasonably increases the burden on the servient estate.