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Carrollsburg v. Anderson2/14/2002
it had been fully described by the terms of the grant. Taylor v. Solter, 231 A.2d 697, 701 (Md. 1967) (citation omitted).
As we have determined previously, the 1964 Accessory Parking Covenant expressly conveyed to the Carrollsburg Square owners "legal access to and from the . . . accessory parking spaces in [the Carrollsburg Condominium] . . . underground garage . . . and legal ingress and egress to and from accessory parking spaces in underground garage . . . ." For some thirty years prior to appellants' relocation of the access route to the underground garage, appellees had continuous and unchallenged use of the lobbies and elevators within the Carrollsburg Condominium to gain access to the underground garage. Thus, under Taylor v. Solter, supra, 231 A.2d at 701, "an implied agreement arising out of [the use of the lobbies and elevators of the Carrollsburg Condominium] by the [appellees] and acquiescence on the part of the [appellants]" fixed the route of access to appellees' underground parking spaces. The majority rule in this country is that once an easement is fixed, neither the dominant estate, in this case appellees', nor the servient estate, here appellants', may unilaterally relocate the easement. As the Supreme Judicial Court of Maine has stated:
In the great majority of jurisdictions the rule is, that, once the location of an expressly deeded easement is established, whether by the language of the instrument creating the easement or by subsequent acts of the parties fixing on the ground the location of a general grant of a right of way, the site location may not be changed thereafter by either the owner of the dominant estate or the owner of the servient estate, unless both parties consent to the relocation, excepting, however, where the document creating the easement also contains an express or implied grant or reservation of power to relocate. Thus, in the absence of statutory provisions to the contrary, as a general rule, the location of an easement, when once established, cannot be changed or the easement relocated without the mutual consent of the owners of the dominant and servient estates. Davis v. Bruk, 411 A.2d 660, 664 (Me. 1980) (citations omitted); see also Herren v. Pettengill, 538 S.E.2d 735, 736 (Ga. 2000) (rejecting "the adoption of a rule allowing the owner of the servient estate to relocate the easement under limited circumstances when it places no undue hardship on the owner of the dominant estate.");
Note, The Right of Owners of Servient Estates to Relocate Easements Unilaterally, 109 Harv. L. Rev. 1693 (1996); F.M. English, Annotation, Relocation of Easements (Other Than Those Originally Arising By Necessity); Rights As Between Private Parties, 80 A.L.R.2d 743 (1961).
Some jurisdictions have adopted modified versions of the majority rule. For example, the Court of Special Appeals of Maryland follows the majority rule that: "A right-of-way may not be relocated without the consent of the owners of both the dominant and servient estates." Everdell v. Carroll, 336 A.2d 145, 155 (Md. Ct. Spec. App. 1975) (citation omitted). However, that case also recognized that a modification of the right-of-way could be made where it "was necessary for the useful and beneficial occupation of the land of the servient estate," unless the modification was prohibited by "the terms of the grant" of the easement or "interfere with the reasonable use of the right-of-way by the dominant estate." Id. at 150; see also Drolsum v. Luzuriaga, 611 A.2d 116, 124 (Md. Ct. Spec. App. 1992) ("The court could reasonably conclude that gates at either end of the [easement] . . . unreasonably interfered with the dominant tenement owners' reasonable enjoyment of their easem
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