2019 UT App 132, 447 P.3d 1278 (Aug. 1, 2019)
The Utah Court of Appeals adopted a test for defining the scope of an implied easement, which is determined by looking at the parties’ probable expectations at the time of severance.
Bridge and Sorf own adjoining properties separated by a paved alley. The alley is on Bridge’s property. Both properties were once owned by Sorf’s predecessor, a company formed by Sorf and a business partner. After the properties were severed between Sorf and his partner, Sorf continued to use the alley in the way it was used before severance—for ingress and egress, receiving deliveries, and parking. The partner’s property was conveyed to Bridge, who brought action to quiet title to the alley. Sorf counterclaimed for a declaratory judgment upholding the existence of an implied easement.
At a deposition and later at a jury trial, Sorf testified that when the properties were severed, he intended to keep everything 50/50, and would never have agreed to someone else owning the alley. Bridge initially moved for summary judgment, and later a directed verdict, and then judgment notwithstanding the verdict, all based on the argument that the court could not imply the intent necessary for an implied easement as Sorf’s intent was to own half the alleyway, not have permission to use it. The court denied each motion and entered final judgment recognizing an implied easement and dismissing Bridge’s quiet title claim. Bridge appealed.
The appellate court affirmed an implied easement to the alley, finding that the intent necessary to imply an easement credits the parties with an intention which they did not have, but which they probably would have had had they actually foreseen what they might have foreseen from information available at the time of the conveyance. Because Sorf was unaware of the actual legal boundary between the two properties at the time of severance, it was appropriate for the court to allow the jury to credit Sorf with an unexpressed intention in an implied easement.
As to the scope of that implied easement, the Court stated that Utah had not yet adopted a test for defining the scope of an implied easement. The trial court had determined scope based on the parties’ intent and necessity existing at the time of severance. The appellate court reviewed other jurisdictions that determined scope of an implied easement based on the parties’ probable expectations at the time of severance, and adopted that standard.