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Epstein Family Partnership v. Kmart

    Brief Fact Summary.

    Plaintiff leased its property to Levitz, which provided that Levitz could not install or erect exterior signs without Plaintiff’s written consent. Plaintiff sought to enjoin Defendant because Defendant tried to remove a sign that Levitz had erected on Defendant’s property. Levitz claimed that it had an implied easement to erect the sign. The district court found that an implied easement for the signage existed and enjoined Defendant from removing the sign. Defendant appealed.

    Synopsis of Rule of Law.

    An implied easement is created if it is clear that the parties intended to create an easement but only neglected to reduce that intent in writing.

    Facts.

    The Epstein Family Partnership (Plaintiff) owned a property, which they subdivided and sold a portion to the Kmart Corporation (Defendant) and retained a landlocked parcel for the benefit of which it reserved a right-of-way easement over the property sold to Defendant. Plaintiff leased the landlocked property to the Levitz Furniture Company (Levitz), providing that Levitz could not erect or install exterior signs without Plaintiff’s written consent. Defendant tried to remove a sign that Levitz had erected on Kmart’s property.

    Issue.

    Whether an implied easement is created when it is clear that the parties intended to create an easement, but neglected to reduce that intent in writing.

    Held.

    Yes. The district court’s ruling is reversed. An implied easement is created if it is clear that the parties intended to create an easement but only neglected to reduce that intent to writing.

    Discussion.

    The proponent of the easement must show that the easement’s use was meant to be permanent. Permanency can be presumed from the nature of the contested use unless circumstances suggest otherwise. The omission of a particular purpose for an express grant suggests the omission is intentional. Here, the express easement provided for a right-of-way, but was silent about signage and the requirement of permanency has not been met. A free-standing road sign is not inherently permanent like a right of way is. Courts may assess permanency by examining the nature of the use in relation to the nature of the property interest. Levitz was a tenant; when tenants leave, they normally take their signs with them. Therefore, the facts do not indicate that Plaintiff intended to subject Defendant to a permanent encumbrance for others’ signage on its property.


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