Summary of Crane v. Crane, S. Ct Utah [1984]

Relevant Facts: Dfs own land adjoining Nat. Forest.  30,000 acres of which has been designated for grazing 681 cattle.  The Pls are the current holders of these permits, and they hire riders to move the cattle up the canyons in the spring and down in the fall.  They traverse along a road which crosses the Dfs property.  Each of the Pls acquired his cattle permit from a predecessor who had been driving the cattle across the road for thirty years prior.

Legal Issue(s): Whether an easement in gross acquired by a predecessor could be transferred to a successor by purchase or descent?

Court’s Holding: Transferable easement in gross.

Procedure: Trail ct ruled decreed it was an easement, and Df appealed; Affirmed.

Law or Rule(s): An easement in gross can be acquired by prescription which arises from a use of the servient estate that is open , notorious, adverse, and continuous for 20 years. It cannot be transferred by assignment, inheritance, or otherwise, unless commercial in character.

Court Rationale: An easement in gross that is not transferable is often referred to as “a non-commercial easement in gross.”  From early times easements in gross for railroads, telephone, telegraph, and electric power lines, pipelines, and ditches have been deemed transferable. “An easement in gross is of a commercial character when the use authorized by it results primarily in economic benefit rather than personal satisfaction.  Here the easement involves a herd of cattle being driven to their summer range.  The cattle are being raised for profit rather than for personal use.  That falls w/i the definition of a commercial use and therefor transferable.

Plaintiff’s Argument: The easement was acquired by prescription and was transferable b/c of the commercial nature of the use.

Defendant’s Argument: The individual Pls are deriving a benefit which is personal in nature and non-commercial. Easements in gross are non-transferable.

Prescription: it is the term usually applied to incorporeal hereditament, or to a mode of acquiring title by immemorial or long continued enjoyment.

The prescription period tolled by tacking the original possessor of the easement.