O’Donovan v. McIntosh

Facts

In 1987, McIntosh purchased real property adjacent to land owned by Fish and an option on the Fish property. He then sold that option and optioned his own property to a developer that wanted to subdivide and build on the Fish property. However, the developer did not proceed with the development and let both options expire. Thus in 1989 McIntosh sold his property to Huggins (Defendant) but reserved a right-of-way easement to allow access to the Fish property. The deed stated that the easement was “for the benefit of the Grantor and his heirs and assigns,” limited to only those that would build or occupy the Fish property. The deed also incorporated a side agreement that would “be binding on subsequent owners” of the easement and would prevent Defendant from actively opposing any application for development of the Fish property. In 1995, O’Donovan (Plaintiff) purchased the Fish property and McIntosh’s easement. His company, Black Bear Development, applied for approval to subdivide the Fish land. The town suspended the application because of uncertainty regarding the transferability of the easement. Plaintiff then sought a declaratory judgment allowing him to buy and sell the easement. The trial court granted Defendant summary judgment and held that the easement was not assignable. Plaintiff appealed.