Upper Wagon Box, LLC v. Box Hanging Three Ranch Limited Partnership ( 2022 )

IN THE SUPREME COURT, STATE OF WYOMING
2022 WY 155OCTOBER TERM, A.D. 2022
December 12, 2022
UPPER WAGON BOX, LLC,
Appellant
(Defendant),
v.
S-21-0209
BOX HANGING THREE RANCH
LIMITED PARTNERSHIP,
Appellee
(Plaintiff).
Appeal from the District Court of Fremont County
The Honorable Jason M. Conder, Judge
Representing Appellant:
James R. Salisbury, The Salisbury Firm, P.C., Cheyenne, Wyoming; Katherine A.
Strike, Stanbury & Strike, P.C., Lander, Wyoming. Argument by Mr. Salisbury.
Representing Appellee:
Erika M. Nash and Aaron J. Lyttle, Long Reimer Winegar LLP, Jackson, Wyoming.
Argument by Ms. Nash.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are
requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of
any typographical or other formal errors so that correction may be made before final publication in the
permanent volume.
GRAY, Justice.
[¶1] Upper Wagon Box, LLC’s (Upper Wagon Box) predecessor granted a right-of-way
and access easement (Easement) over a 20-foot-wide strip of property connecting a public
road to land now owned by Box Hanging Three Ranch Limited Partnership (Box Hanging
Three). Upper Wagon Box denied Box Hanging Three access across the Easement,
claiming the Easement was in gross, and it provided access only to Box Hanging Three’s
predecessor in interest. Box Hanging Three filed an action for declaratory judgment and
quiet title. The district court granted summary judgment to Box Hanging Three,
concluding that the Easement is appurtenant and continues to benefit Box Hanging Three.
We affirm.
ISSUE
[¶2] Is the Easement appurtenant for the benefit of land owned by Box Hanging Three,
or is it in gross and personal to Box Hanging Three’s predecessor in interest?
FACTS
[¶3] The facts are undisputed. Between 1971 and 1998, the predecessors in interest to
Box Hanging Three, Sylvia Crouter and Jay Hodgson (Crouter), wife and husband,
acquired approximately 1000 acres of land from Upper Wagon Box’s predecessor, Wagon
Box Ranch Co. These acres can be broken into distinct parcels designated in this appeal
as Parcels A, B, C, D, E, F, and G. Crouter separately acquired other land, not germane to
this appeal, designated as Parcel H. The location of the parcels and the Easement are shown
on the following map. 1
1
This map was Exhibit A to the Affidavit of Katherine A. Strike attached to Upper Wagon Box’s WRCP
56.1(a) Statement of Undisputed Material Facts.
1
Parcels A and H lie north of the Wind River (depicted in blue). Parcels B through G lie
south of the Wind River and south of Warm Springs Creek (depicted in green). The
disputed Easement (depicted in red) is located on property now owned by Upper Wagon
Box and adjoins Parcel G.
[¶4] Wagon Box Ranch Co. conveyed Parcel A to Crouter in 1971. Crouter acquired
Parcel H in 1975. In October 1989, Wagon Box Ranch Co. and Crouter entered into a
contract concerning the remaining parcels entitled “Memorandum of Agreement for
2
Warranty Deed and Memorandum of Options to Purchase” (the 1989 Contract). The 1989
Contract contained Wagon Box Ranch Co.’s commitment to convey Parcel C to Crouter
and gave Crouter a series of successive options to purchase Parcels B, D, E, F, and G. The
option structure was designed so that Crouter would first purchase property most distant
from land not subject to option and retained by Wagon Box Ranch Co. Crouter would only
acquire the land adjoining Wagon Box Ranch Co.’s retained land, Parcel G, after all other
optioned parcels had been purchased. The 1989 Contract also provided for an easement
across Wagon Box Ranch Co.’s retained land and a license providing access to Parcel C
across the remaining parcels subject to the options. In 1989, Crouter’s only access to Parcel
C and the optioned parcels was through Wagon Box Ranch Co.’s retained property via the
Easement and the license. The Easement included a wooden bridge across Warm Springs
Creek (the Bridge). 2
[¶5] On March 7, 1990, approximately five months after executing the 1989 Contract,
Wagon Box Ranch Co. conveyed Parcel C and the Easement to Crouter. On the same day,
Crouter exercised their first option and acquired Parcel B. The Easement provided:
Wagon Box Ranch Co. . . . does hereby grant . . . unto
[Crouter], Grantees, . . . a nonexclusive right-of-way and
access easement over and across the [20-foot-wide strip of land
from the east side of the bridge across Warm Springs Creek,
across Wagon Box property, to the north side of the bridge
across the Wind River] providing access to the premises
abutting said right-of-way, including the right of ingress,
egress, and regress.
2
The 1989 Contract described the Easement as follows:
a road right-of-way through the NE/4NW/4 of said Section 32, 20 feet in
width, being 10 feet on either side of the following-described centerline:
Beginning at point No. 1, which point is on the easterly end of an
existing bridge crossing the Warm Spring Creek, bearing N. 29°
47’27” W. a distance of 469.79 feet from the north 1/16 C-C
corner of said Section 32, thence proceed along said centerline: N.
69° 43’03” W. a distance of 36.22 feet to point No. 2; S. 75°
35’53” W. a distance of 39.06 feet to point No. 3; S. 53° 29’41”
W. a distance of 74.82 feet to point No. 4; thence along a curve to
the right whose radius is 28.00 feet and whose length is 69.82 feet
to point No. 5; thence: N. 16° 22’8” E. a distance of 43.21 feet to
point No. 6; N. 59° 54’21” E. a distance of 54.04 feet to point No.
7; N. 43° 26’48” E. a distance of 78.86 feet to point No. 8; N. 31°
41’41” E. a distance of 388.26 feet to point No. 9, which point is
on the northerly side of a bridge crossing the Wind River, which
point is the end of described right-of-way, bearing N. 06° 08’16”
W. a distance of 857.49 feet from the North 1/16 C-C corner of
said Section 32, said road being 784.29 feet in length and
containing 0.360 acres . . . .
3
The legal description of the Easement is identical to the legal description set forth in the
1989 Contract. Supra note 1.
[¶6] On June 15, 1990, in compliance with the terms of the 1989 Contract, Wagon Box
Ranch Co. entered into a license agreement 3 with Crouter. The license agreement states
that “in consideration of the sale and purchase of” Parcel C, the parties agree:
That the within license shall constitute a permit from
[Wagon Box Ranch Co.] to [Crouter] for ingress and egress
over and across [Wagon Box Ranch Co.’s property], and shall
continue until the . . . Options to Purchase shall be fully
performed; [and]
That this continuous license shall be binding on all
successors and assigns of the respective parties . . . .
The license provided access to Parcel C (and the first exercised option parcel, Parcel B)
through Parcels E, F, and G. Between September 1990 and August 1998, Crouter exercised
the remaining options and purchased Parcels D, E, F, and G. Supra ¶ 4. In April 1999,
Crouter conveyed all the parcels it had purchased from Wagon Box Ranch Co. to Box
Hanging Three. In 2013, Wagon Box Ranch Co. conveyed the property subject to the
Easement to Upper Wagon Box. 4 The transfers are summarized as follows:
05/21/1962 Wagon Box Ranch Co. acquired Parcels A through G
08/18/1971 Parcel A conveyed to Crouter by Wagon Box Ranch Co.
1975 Parcel H acquired by Crouter from third party
10/17/1989 1989 Option Contract executed by Wagon Box Ranch Co. and Crouter
providing:
• Agreement to sell Parcel C
• Agreement for the Easement
• Agreement for a license over Parcels E, F, and G
• Options for Crouter to purchase Parcels B, D, E, F, and G
3
The license is described as:
[A]n access right-of-way 20 feet in width traversing the NW/4NE/4,
SW/4NE/4, NW/4SE/4, SW/4SE/4, SE/4SW/4, Section 32, Township 42
North, North, Range 107 West, 6th P.M. (access through the NW/4NE/4
of Section 5, Township 41 North, Range 107 West, by virtue of a U. S.
Forest Service lease)[.]
4
In both cases, there were intervening transfers. Those transfers are not relevant to the issue here and are
not further discussed.
4
03/07/1990 Crouter acquired:
• Parcel B
• Parcel C
• The Easement
06/15/1990 Crouter acquired the license over Parcels E, F, & G
09/28/1990 Parcel D acquired by Crouter
06/16/1993 Parcel E acquired by Crouter
05/05/1998 Parcel F acquired by Crouter
08/28/1998 Parcel G acquired by Crouter and pursuant to the parties’ agreement the
license expired
04/01/1999 Crouter conveyed Parcels A, B, C, D, E, F, and G to Box Hanging Three
06/10/2013 Wagon Box Ranch Co. conveyed the property subject to the Easement to
Upper Wagon Box
[¶7] In 2017, Warm Springs Creek flooded, damaging the Bridge. Upper Wagon Box
removed the Bridge and did not reconstruct it. Without the Bridge, Box Hanging Three
can no longer use the Easement as a means of ingress and egress to its property. 5 Box
Hanging Three filed a Complaint requesting a declaratory judgment addressing the parties’
rights and obligations regarding the Easement and seeking to quiet title. Upper Wagon
Box answered and asserted counterclaims for declaratory relief, quiet title, and ejectment.
At issue was whether the Easement was in gross and personal to Crouter or whether it was
an easement appurtenant. The parties filed cross-motions for summary judgment, and the
district court granted summary judgment in favor Box Hanging Three, ruling that the
Easement was appurtenant and perpetual and that the Bridge is a reasonable improvement
necessary for Box Hanging Three’s enjoyment of the Easement. Upper Wagon Box timely
appeals.
STANDARD OF REVIEW
[¶8] “We review the district court’s order granting summary judgment de novo and can
affirm on any legal grounds provided in the record.” Page v. Meyers, 2021 WY 73, ¶ 9,
488 P.3d 923, 926 (Wyo. 2021) (citing Burns v. Sam, 2021 WY 10, ¶ 7, 479 P.3d 741, 743
(Wyo. 2021)); see also Four B Properties, LLC v. Nature Conservancy, 2020 WY 24, ¶ 26,
458 P.3d 832, 839–40 (Wyo. 2020).
[W]e review a summary judgment in the same light as the
district court, using the same materials and following the same
standards. We examine the record from the vantage point most
favorable to the party opposing the motion, and we give that
5
Hanging Box Three does have access to its property via a second bridge over the Wind River that crosses
from Parcel H to Parcel G. The second bridge was constructed in 1994.
5
party the benefit of all favorable inferences that may fairly be
drawn from the record.
Page, ¶ 9, 488 P.3d at 926 (quoting Burns, ¶ 7, 479 P.3d at 744).
[¶9] Summary judgment is appropriate when there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. “A genuine issue of material fact
exists when a disputed fact, if it were proven, would establish
or refute an essential element of a cause of action or a defense
that the parties have asserted.”
Wood v. CRST Expedited, Inc., 2018 WY 62, ¶ 8, 419 P.3d 503, 506 (Wyo. 2018) (quoting
Fugle v. Sublette Cnty. Sch. Dist. No. 9, 2015 WY 98, ¶ 5, 353 P.3d 732, 734 (Wyo. 2015)
(citing W.R.C.P. 56(c); Metz Beverage Co. v. Wyoming Beverages, Inc., 2002 WY 21, ¶ 9,
39 P.3d 1051, 1055 (Wyo. 2002))).
DISCUSSION
[¶10] Upper Wagon Box claims the Easement was an easement in gross, personal to
Crouter. Upper Wagon Box argues that when the Easement was conveyed Crouter did not
own Parcel G, which abutted the burdened estate, and therefore, the Easement did not
follow the land.
[¶11] An easement is a nonpossessory interest in land that entitles the easement holder to
a right of limited use in another’s property. BNSF Ry. Co. v. Box Creek Min. Ltd. P’ship,
2018 WY 67, ¶ 18, 420 P.3d 161, 166 (Wyo. 2018); Hasvold v. Park Cnty. Sch. Dist. No.
6, 2002 WY 65, ¶ 13, 45 P.3d 635, 638 (Wyo. 2002); Baker v. Pike, 2002 WY 34, ¶ 11, 41
P.3d 537, 541 (Wyo. 2002). Easements differ from licenses “in that a license generally
grants permission to do something on another’s property. Since permission to do
something can be easily rescinded, the landowner usually can terminate the license. . . .
[E]asements are generally irrevocable interests in land.” Baker, ¶ 11, 41 P.3d at 541 (citing
Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land § 1:4
(2001)).
[¶12] Easements may be appurtenant or in gross. An easement is appurtenant “when the
easement is created to benefit and does benefit the possessor of the land in his use of the
land.” Gayhart Tr. of Tiphany L. Gayhart Living Tr. dated Oct. 1, 2008 v. Corsi, 2020 WY
58, ¶ 20, 462 P.3d 904, 910 (Wyo. 2020) (quoting Hasvold, ¶ 14, 45 P.3d at 638); Baker,
¶ 12, 41 P.3d at 541; Weber v. Johnston Fuel Liners, Inc., 519 P.2d 972, 975 (Wyo. 1974);
R.C.R., Inc. v. Rainbow Canyon, Inc., 978 P.2d 581, 586 (Wyo. 1999). “Land burdened
by an easement is appropriately termed a servient tenement or a servient estate. If the
easement benefits a particular parcel of land, that parcel is known as the dominant tenement
6
or dominant estate, and the easement is said to be appurtenant to it.” Leeks Canyon Ranch,
LLC v. Callahan River Ranch, LLC, 2014 WY 62, ¶ 13, 327 P.3d 732, 737–38 (Wyo. 2014)
(quoting Bruce & Ely, supra, § 1:1, at 1–6 (2014)).
[¶13] “An appurtenant easement is tied to the dominant estate, is conveyed with a
conveyance of that estate, and cannot be conveyed independently thereof.” Gayhart, ¶ 20,
462 P.3d at 910 (quoting Box L Corp. v. Teton Cnty. ex rel. Bd. of Cnty. Comm’rs of Teton
Cnty., 2004 WY 75, ¶ 12, 92 P.3d 811, 815 (Wyo. 2004)); see also Baker, ¶ 14, 41 P.3d at
542 (An appurtenant easement “is transferred with possession of the dominant property
even if it is not mentioned in the document of transfer.” (quoting R.C.R., 978 P.2d at 586)).
[¶14] An easement is in gross when the easement is created to benefit someone personally,
and not as a possessor of any particular land. Hasvold, ¶ 14, 45 P.3d at 638. “Traditionally,
easements in gross, having no dominant estate to which to be attached, were considered
personal to their holder and, as such, non-assignable.” Gayhart, ¶ 20, 462 P.3d at 910
(quoting Box L Corp., ¶ 12, 92 P.3d at 816); Baker, ¶ 12, 41 P.3d at 541.
A. The Dominant Estate
[¶15] Upper Wagon Box argues that to create a valid appurtenant easement, the grantee
must own the dominant estate at the time the easement is conveyed. Upper Wagon Box
points out that the Easement states it is providing “access to the premises abutting said
right-of-way.” It maintains that Parcel G is the dominant estate described in the Easement
and that the “premises abutting” language in the Easement refers to Parcel G. It argues the
Easement cannot be appurtenant as Crouter did not own Parcel G at the time the Easement
was conveyed.
[¶16] The appellants in Hasvold made a similar argument. There, an easement was
conveyed to Tall Oak, who did not own the dominant estate. Tall Oak intended to purchase
the dominant estate but needed an easement to secure financing from its lender to complete
the purchase. The dominant estate was deeded to Tall Oak “shortly after” the easement
was recorded. Hasvold, ¶ 18, 45 P.3d at 639. We recognized that “in the typical situation,
the grantee of an appurtenant easement will already have acquired title to the dominant
estate when the easement is granted.” Id. ¶ 17, 45 P.3d at 639. However, we concluded
that under the circumstances, “the fact that Tall Oak did not own the dominant estate when
the easement was conveyed does not, by itself, dictate that the easement cannot be
interpreted as being appurtenant to the land.” Id. ¶ 19, 45 P.3d at 639. An appurtenant
easement “may be created to benefit a person as the possessor of certain land contingent
upon his obtaining possession thereof, or upon his future selection of land to which the
easement will then become appurtenant.” Id. ¶ 17, 45 P.3d at 639 (quoting Restatement of
Prop. § 453 cmt. a (Am. Law. Inst. 1944)).
7
[¶17] Here, when the Easement was conveyed, Wagon Box Ranch Co. was the fee owner
of Parcel G and Crouter had title to Parcels B and C. Crouter had an option to purchase
Parcel G. As anticipated by the 1989 Contract, Crouter exercised their options over time
and acquired Parcels D, E, F, and G. If we were to accept Upper Wagon Box’s argument
that Parcel G is the dominant estate, the fact that Crouter did not own Parcel G when the
Easement was conveyed does not necessarily dictate that the Easement is not appurtenant,
but we do not decide on that basis here. See Hasvold, ¶ 19, 45 P.3d at 639; Bruce & Ely,
supra, § 2:4 (updated 2022).
[¶18] In this case, Parcels B and C were purchased by Crouter at the same time the
Easement was conveyed. While Parcels B and C were not physically adjacent to the
Easement, they benefitted from it. This raises the question of whether the dominant estate
must physically abut the servient estate for an appurtenant easement to be created. “With
respect to the creation of easements appurtenant, courts have adopted two different views
concerning the geographic relationship of the dominant and servient tenements.” Davis v.
Hall, 2012 MT 125, ¶ 28, 280 P.3d 261, 270. “According to the prevailing view, the
dominant and servient estates need not physically abut in order to create an easement
appurtenant.” Bruce & Ely, supra, § 2:6 (updated 2022) (emphasis added) (citing cases).
“A few jurisdictions, however, adhere to the view that an easement cannot be appurtenant
unless the dominant and servient estates are contiguous at some point.” Id.
[¶19] We have not previously addressed this question. Most jurisdictions favor a rule
which does not require the servient tenement to be adjacent to the dominant tenement. See
Pevear v. Hunt, 924 S.W.2d 114, 116 (Tenn. Ct. App. 1996) (“We do not insist there be
strict, physical, contact between the parcels.”); Murphy v. Olsen, 826 N.E.2d 249, 253
(Mass. App. Ct. 2005) (“The servient estate need not be adjacent to the dominant.”); Davis,
280 P.3d at 270–71 (holding that express easement may be appurtenant to noncontiguous
land if that was intention of parties); Gojmerac v. Mahn, 2002 WI App 22, ¶ 20, 640
N.W.2d 178, 184 (adopting majority rule that easement may be appurtenant to
noncontiguous estates if parties so intended); see generally Bruce & Ely, supra, § 2:6.
[¶20] We conclude that the majority rule is the better approach, and clarify here that we
do not require strict, physical contact between the dominant and servient estate for an
easement to be appurtenant, if the parties so intended. Pevear, 924 S.W.2d at 116.
However, like the court in Pevear, we “are persuaded that ‘the use of the easement must
be so related to the use of the dominant tenement that its particular connection with the
beneficial enjoyment of that tenement is not merely conjectural, but direct and apparent.’”
Id. (quoting Thomas v. Brooks, 221 S.W. 542, 543 (Ky. Ct. App. 1920)). Crouter acquired
Parcels B and C from Wagon Box Ranch Co. on the same day that Wagon Box Ranch Co.
conveyed the Easement to them. Crouter could not access either parcel without the
Easement. Accordingly, while Parcels B and C were not physically adjacent to the
Easement, Crouter could not enjoy the benefit of its ownership of those parcels without use
of the Easement. Parcels B and C were the dominant estate referred to in the Easement.
8
B. Whether the Easement Is Appurtenant or in Gross
[¶21] “An easement will not be presumed to be in gross when it can fairly be construed to
be appurtenant.” Gayhart, ¶ 20, 462 P.3d at 910 (quoting R.C.R., 978 P.2d at 586);
Smithson v. Lindzey, 2021 WY 15, ¶ 18, 479 P.3d 759, 765 (Wyo. 2021); Leeks Canyon
Ranch, ¶ 34, 327 P.3d at 742 (quoting Hasvold, ¶ 14, 45 P.3d at 638). “Easements are
presumed to be appurtenant, rather than in gross, and we have recognized a strong
preference to construe easements as being the former, rather than the latter.” Lozier v.
Blattland Invs., LLC, 2004 WY 132, ¶ 15, 100 P.3d 380, 385 (Wyo. 2004); Pokorny v.
Salas, 2003 WY 159, ¶ 23, 81 P.3d 171, 177 (Wyo. 2003). We conduct our analysis of the
Easement with this presumption in mind.
[¶22] When we construe an easement, “we seek to determine the intent of the parties to
the easement.” Hasvold, ¶ 13, 45 P.3d at 638 (citing R.C.R., 978 P.2d at 586); Restatement
(Third) Prop.: Servitudes § 4.1 (Am. Law Inst. 2000). “Our deed interpretation rules focus
on deriving the intentions of the parties.” Leeks Canyon Ranch, ¶ 14, 327 P.3d at 738
(quoting Ecosystem Res., L.C. v. Broadbent Land & Res., L.L.C., 2007 WY 87, ¶ 9, 158
P.3d 685, 688 (Wyo. 2007)).
[¶23] When interpreting easements, we have explained:
The language of a contract is to be construed within the context
in which it was written. In so doing, the court may look to the
surrounding circumstances, the subject matter and the purpose
of the contract. The purpose of examining the context within
which the contract was drawn, however, is limited to
ascertaining the intent of the parties at the time the agreement
was made. The context cannot be invoked to contradict the
clear meaning of the language used, and those extraneous
circumstances do not justify a court in proceeding to insert
therein a provision other than or different from that which the
language used clearly indicates, and thereby, in effect, make a
contract for the parties.
Lozier, ¶ 9, 100 P.3d at 383–84 (citations omitted); see also Leeks Canyon Ranch, ¶ 14,
327 P.3d at 738 (“[E]ven if a contract is unambiguous, we can examine evidence of the
circumstances surrounding the execution of the deed to arrive at the parties’ intent.”
(quoting Ecosystem Res., ¶ 10, 158 P.3d at 688)).
[¶24] The Easement’s stated purpose is to provide “access to the premises abutting said
right-of-way, including the right of ingress, egress, and regress.” This language suggests
that the Easement was intended to be appurtenant. Hasvold, ¶ 22, 45 P.3d at 640; Yaali,
9
Ltd. v. Barnes & Noble, Inc., 506 S.E.2d 116, 119 (Ga. 1998) (“Generally, where a right to
pass over land is given for ingress and egress, . . . the easement as appurtenant rather than
in gross.”).
[¶25] We have identified six “badges” of an appurtenant easement. The badges of an
appurtenant easement are:
(1) that the easement was created to benefit a specific tract of
land; (2) that the grant was for a perpetual right-of-way for
ingress and egress; (3) that the grantee has the right to inspect
and maintain the easement; (4) that the right is not limited to
the possessor personally; (5) that the grant expressly extends
the right to the grantees, their heirs, executors, administrators,
successors, assigns and legal representatives; and (6) that the
easement document does not contain any limitations on the
transferability of the easement to future transfers of both the
dominant and servient estates.
Smithson, ¶ 21, 479 P.3d at 766 (quoting Gayhart, ¶ 21, 462 P.3d at 910); see also Gumpel
v. Copperleaf Homeowners Ass’n, Inc., 2017 WY 46, ¶ 68, 393 P.3d 1279, 1297–98 (Wyo.
2017) (quoting Hasvold, ¶ 21, 45 P.3d at 640 (citing R.C.R., 978 P.2d at 586)). The badges
of appurtenance assist in deriving the intentions of the parties and must be viewed within
the context of each case. Their presence is an indication of appurtenance, but their absence
is not dispositive. See Lozier, ¶ 15, 100 P.3d at 385 (stating “the dominant tenement need
not be described within the instrument, so long as it exists and can be identified” (citing
Pokorny, ¶¶ 27–28, 81 P.3d at 179)); Smithson, ¶ 23, 479 P.3d at 766 (The lack of
appurtenance, “successors and assigns,” and similar language is a “non-dispositive factor,”
which the Court must “weigh in conjunction with the other relevant factors.”).
[¶26] Upper Wagon Box argues that the Easement lacks all the badges of appurtenance.
It asserts that it “does not reference and/or detail any specific tract of land as the
benefitted/dominant parcel,” and because the Easement provides “access to the premises
abutting said right-of-way,” there “is no benefitted” land. Addressing the first badge,
Upper Wagon Box argues, as we stated earlier, that Parcel G “abutted” the Easement, and
was owned by Wagon Box Ranch Co. when the Easement was conveyed; and without
ownership of Parcel G, Crouter had no benefitted parcel. See supra ¶ 15. As to the
remaining badges, Upper Wagon Box points out that the Easement does not expressly state
that the right-of-way is perpetual in duration, or that the dominant estate owner has the
right to inspect and maintain it. It was not limited to the possessor personally, and there
was no mention of its heirs, “successors and assigns.” Finally, it is silent on transferability.
[¶27] We agree in part with Upper Wagon Box. Three of the six badges are not explicitly
set forth in the Easement. The Easement contains the first, fourth, and sixth badges. The
10
first badge looks at whether the easement was created to benefit a specific tract of land.
Here, Wagon Box Ranch Co. sold Crouter Parcels B and C on the same day it granted the
Easement. The Easement provided Crouter with their only access to Parcels B and C.
Parcels B and C were the dominant estate benefitted by the Easement at the time the
Easement was conveyed. See Lozier, ¶ 15, 100 P.3d at 385 (“[T]he dominant tenement
need not be described within the instrument, so long as it exists and can be identified.”
(citing Pokorny, ¶¶ 27–28, 81 P.3d at 179)). The fourth badge looks at whether the
easement is limited to the grantee personally. The sixth badge addresses whether the
easement contains limitations on transferability. The Easement contains no restriction on
transferability, and it is not expressly limited to Crouter personally. Silence is not a
restriction or a limitation. The first, fourth, and sixth badges indicate appurtenance.
[¶28] The Easement does not expressly incorporate the remaining badges, but it does not
contravene them. The term of the Easement is not limited. The right to inspect and
maintain an easement is implied in Wyoming law. See Koch v. J & J Ranch, LLC, 2013
WY 51, ¶ 34, 299 P.3d 689, 696 (Wyo. 2013). The lack of “successors and assigns” and
similar language is a “non-dispositive factor.” See Smithson, ¶ 23, 479 P.3d at 766. While
not dispositive, the presence of some, but not all of the badges do not conclusively establish
that the parties intended the Easement to be appurtenant.
[¶29] Because we find the badges inconclusive, we turn to the “circumstances surrounding
execution of [the] agreement” such as “the parties’ relationship, the subject matter of the
contract, and the parties’ apparent purpose in making the contract, to determine the parties’
intent[.]” Ultra Res., Inc. v. Hartman, 2010 WY 36, ¶ 43, 226 P.3d 889, 909 (Wyo. 2010)
(citing Mullinnix LLC v. HKB Royalty Tr., 2006 WY 14, ¶ 6, 126 P.3d 909, 915 (Wyo.
2006)); Voss v. Albany Cnty. Comm’rs, 2003 WY 94, ¶ 29, 74 P.3d 714, 723 (Wyo. 2003)
(the easement did not contain all of the badges of an appurtenant easement requiring
examination of extrinsic evidence to discern the intent of the parties), superseded by statute
on issues concerning private road construction, see Whaley v. Flitner Ltd. P’ship, 2017
WY 59, ¶¶ 19–20, 395 P.3d 653, 660 (Wyo. 2017). Our “examination of the context within
which the contract was drawn is limited to ascertaining the intent of the parties in making
the agreement.” Davison v. Wyoming Game & Fish Comm’n, 2010 WY 121, ¶ 9, 238 P.3d
556, 560 (Wyo. 2010).
[¶30] In 1990, Wagon Box Ranch Co. conveyed Parcels B and C and the Easement to
Crouter on the same day. Three months later, in compliance with the 1989 Contract,
Wagon Box Ranch Co. provided Crouter with a license across Parcels E, F, and G (some
of the remaining optioned parcels under the 1989 Contract) to access Parcels B and C. The
license was perpetual unless all of the options were exercised, and it expired by its own
terms once all the parcels were purchased. Together, the Easement and the license provided
Crouter access to Parcels B and C and the remaining optioned parcels as they were
acquired. Supra ¶¶ 4–6, 18–20. As anticipated, Crouter exercised their options to purchase
all the parcels identified in the 1989 Contract between 1990 and 1998. The license then
11
expired, leaving Crouter with the Easement as their means of access to all the purchased
parcels. The parties clearly postulated that Crouter would acquire all the parcels over time,
and understood that even if they did not acquire all the parcels, access would be necessary
for them to enjoy their purchase of Parcels B and C. The 1989 Contract, the Easement,
and the license worked together to supply access to Parcels B and C standing alone, and to
each subsequent parcel, if and when purchased. Under these circumstances, it is hard to
fathom that the parties intended the Easement to be anything other than appurtenant.
Nevertheless, we will examine who benefits from the Easement, another factor in
determining the nature of an easement.
[¶31] An easement is:
(a) appurtenant to an interest in property if it serves a purpose
that would be more useful to a successor to a property interest
held by the original beneficiary of the servitude at the time the
servitude was created than it would be to the original
beneficiary after transfer of that interest to a successor;
(b) in gross if created in a person who held no property that
benefited from the servitude, or if it serves a purpose that
would be more useful to the original beneficiary than it would
be to a successor to an interest in property held by the original
beneficiary at the time the servitude was created[.]
Smithson, ¶ 19, 479 P.3d at 765 (citations omitted).
[¶32] Here, the Easement was useful to Crouter as the owners of Parcels B through G.
When Crouter conveyed the parcels to Box Hanging Three, the Easement was of no use to
them, but clearly benefitted their successor. See Smithson, ¶ 20, 479 P.3d at 766. As the
district court aptly explained, “When an easement adds to the enjoyment of another parcel
of land or if an easement is made ‘useless except as a means of access to a parcel, it will
likely be viewed as an easement appurtenant.’” (quoting Bruce & Ely, supra, § 2:2). The
Easement was created to benefit and does benefit the possessor of the land, and this weighs
in favor of appurtenance.
CONCLUSION
[¶33] When the Easement was conveyed, Parcels B and C were the dominant estate.
While the language of the Easement lacks explicit reference to some of the badges of an
appurtenant easement, that omission does not outweigh the circumstances demonstrating
the parties’ intent that the Easement was to be appurtenant and is insufficient to overcome
the presumption of appurtenance. We affirm.
12