Easements Run With the Dominant Estate They Are Granted To: No Expansion to After-Acquired Parcels Absent Express Grant or Necessity

Introduction

This commentary examines the Vermont Supreme Court’s entry order in Cris O’Donnell & Cheryl O’Donnell v. Hope Clough & Michelle Clough (No. 25-AP-088, Sept. 5, 2025), affirming a declaratory-judgment decision after a bench trial regarding the scope and beneficiaries of a 50-foot-wide right-of-way created in the early 1970s. The dispute arose between adjoining landowners in Bradford, Vermont: the O’Donnells (owners of Lot 5, across which the right-of-way runs) and the Cloughs (owners of Lots 1 and 3—their homestead parcel—and Lot 4, an undeveloped parcel immediately west of the homestead).

The primary legal issue was whether an express, nonexclusive, perpetual right-of-way granted in October 1973 for the benefit of the homestead parcel (Lots 1 and 3) also extended to the later-acquired, adjoining undeveloped parcel (Lot 4). A closely related issue was whether the undeveloped parcel could claim access via implied easement (by necessity or by prior use) or via prescription. The trial court held, and the Supreme Court affirmed, that the express easement did not benefit Lot 4, that an implied easement was unavailable given the parcel’s alternative access to the south and unity of ownership, and that the record did not support a prescriptive easement.

Although decisions of a three-justice panel are not precedential in Vermont, the order provides a clear and practical restatement of core property law doctrines: the scope of an express appurtenant easement is fixed by the granting language; it cannot be unilaterally expanded to benefit after-acquired lands; implied easements require necessity at the time of severance; and prescriptive rights require substantial, adverse, and continuous use for the statutory period. The order also underscores appellate practice fundamentals: preservation, record citations, and the limitations on introducing new evidence after trial.

Summary of the Opinion

• The right-of-way, created in 1973 and located entirely on the O’Donnell property (Lot 5), is an express, nonexclusive, appurtenant easement benefiting the Clough homestead parcel (Lots 1 and 3).
• The undeveloped Clough parcel (Lot 4), acquired via a February 1975 deed, does not benefit from that right-of-way. That deed explicitly excluded the right-of-way:

Since the within conveyed Lot No. 4 adjoins premises now owned by the said Coles as aforesaid, the right of way easement shown on said plan adjoining the within conveyed property on the north is not conveyed herein...

• The court rejected the Cloughs’ arguments based on a subdivision map and an Act 250 permit because the deed language was unambiguous, the materials were not in the record, and the map post-dated the deed. Extrinsic evidence is not used to contradict an unambiguous deed.
• No implied easement by necessity exists because Lot 4 has always had access through the southern parcel, and the parcels have never been held separately since 1975.
• No prescriptive easement was proven; the trial court found only occasional use (e.g., for deliveries), not the open, notorious, adverse, and continuous use for fifteen years required.
• Damages and counterclaims (including allegations of interference and harassment) were rejected for lack of evidentiary support.
• The Supreme Court affirmed, emphasizing deferential review of factual findings following a bench trial and de novo review of unambiguous deed interpretation.

Analysis

Precedents Cited and Their Influence

• Lofts Essex, LLC v. Strategis Floor & Decor Inc., 2019 VT 82, 211 Vt. 204:
  • Sets the standard of review after a bench trial. Findings stand unless clearly erroneous when viewed in the light most favorable to the prevailing party. Appellate courts defer to credibility determinations and the persuasive effect of evidence.
  • Influence: The Supreme Court declined to reweigh evidence or disturb credibility assessments adverse to the Cloughs and upheld the trial court’s factual determinations regarding the nature and extent of use.
• Kipp v. Estate of Chips, 169 Vt. 102 (1999), Sanville v. Town of Albany, 2022 VT 22, 216 Vt. 368:
  • Deed interpretation begins with the language of the instrument; unambiguous deeds are enforced as written without resort to extrinsic evidence.
  • Influence: The Court enforced the February 1975 deed’s explicit exclusion of any right-of-way to Lot 4, foreclosing reliance on later-dated maps or unadmitted documents.
• LeBlanc v. Snelgrove, 2015 VT 112, 200 Vt. 570, and Gladchun v. Eramo, 2023 VT 5, 217 Vt. 481:
  • Construction of a deed and interpretation of an express easement are questions of law reviewed de novo. Ambiguity exists only when reasonable people could differ; limited extrinsic evidence may be consulted to determine ambiguity, not to contradict clear terms.
  • Influence: The Court concluded that reasonable minds could not differ given the explicit exclusion in the 1975 deed, and thus enforced the text as written.
• In re S.B.L., 150 Vt. 294 (1988); V.R.A.P. 28(a)(4):
  • Appellants must show how the trial court erred and support arguments with authorities and record citations. The Court will not comb the record for error.
  • Influence: The Court noted the Cloughs’ failure to provide record citations and to demonstrate preservation, reinforcing the importance of appellate compliance.
• V.R.C.P. 60(b):
  • Post-judgment relief standards for introducing new evidence after trial.
  • Influence: The trial court properly refused to consider new materials submitted with the Cloughs’ post-trial filings absent a Rule 60(b) showing.

Legal Reasoning

• Express easement scope limited by grant:
  • The 1973 deed created a nonexclusive, appurtenant right-of-way benefiting the homestead parcel (Lots 1 and 3). An appurtenant easement runs with the dominant estate for which it is granted; its scope cannot be expanded to benefit other parcels absent an express grant.
  • Attempting to use the homestead parcel’s easement to access Lot 4 would impermissibly expand the grant and overburden the servient estate (Lot 5). The trial court and Supreme Court both rejected this expansion.
• Explicit exclusion in 1975 deed to Lot 4 controls:
  • The February 1975 deed expressly states the right-of-way “is not conveyed herein,” and even directs future water needs to separate negotiations with the Bradford Water Commission. This plain language forecloses any claim that Lot 4 carries an appurtenant right in the Lot 5 right-of-way.
  • The later-dated subdivision map (May 1975) and any Act 250 permit were either not in the trial record or, even if referenced, cannot contradict unambiguous deed language.
• No implied easement by necessity:
  • Necessity must exist at the time of severance from common ownership, and the property must lack reasonable access. Here, the 1975 deed contemplated access from the south, and Lot 4 and the southern parcel have never been held separately since 1975. The lot was not landlocked, so necessity fails.
• No prescriptive easement:
  • The record reflected only occasional use (deliveries). That falls short of open, notorious, adverse, and continuous use for fifteen years. The Supreme Court noted this argument was not clearly raised below and that the trial court’s findings of minimal use were supported by the evidence.
• Appellate practice and evidentiary constraints:
  • The Court declined to consider extra-record materials or new evidence introduced in post-trial filings without a Rule 60(b) basis. It reiterated the necessity of citing the record and preserving arguments under V.R.A.P. 28(a)(4) and In re S.B.L.
• No damages:
  • Both parties’ damages claims failed for lack of proof. Allegations of interference, water damage, or drone-related harassment were unsupported, and the trial court’s credibility determinations are entitled to deference.

Impact

While not precedential, the order provides crisp, practice-oriented guidance for Vermont real estate transactions, land use planning, and litigation strategy:

• Drafting and due diligence:
  • Express easements benefit the specific dominant estate named. Buyers of adjoining or after-acquired parcels cannot assume they inherit an adjacent parcel’s easement rights.
  • Explicit exclusions in a deed are dispositive. If access is intended for an additional lot, it must be granted expressly, or established via a recorded instrument, at the time of severance.
  • Survey maps and permits do not create easements unless incorporated into the grant or otherwise reflected in the chain of title. Later maps cannot contradict earlier unambiguous deeds.
• Litigation posture:
  • To establish an implied easement by necessity, the party must show landlocked status at severance and lack of reasonable alternative access. Continuous unity of ownership with an access-providing parcel undermines necessity claims.
  • Prescriptive easement claims require robust proof of substantial, adverse, continuous, and notorious use for the statutory period; occasional delivery access will not suffice.
  • On appeal, strict compliance with preservation and record-citation rules is essential. Extra-record materials and new evidence will be disregarded absent a Rule 60(b) foundation.
• Servient estate protections:
  • Servient owners can rely on the principle against overburdening: an appurtenant easement cannot be used to benefit additional, non-dominant parcels without consent or express grant.

Complex Concepts Simplified

• Easement appurtenant:
  • A right benefiting a particular parcel (the dominant estate) that runs with that land to successive owners. It burdens another parcel (the servient estate).
• Nonexclusive easement:
  • The holder may use the easement, but so may the servient owner (and sometimes others). The easement holder cannot exclude the servient owner from reasonable uses consistent with the easement’s purpose.
• Scope limited by grant:
  • An express easement’s scope (who may use it, for what, and to benefit which land) is determined by the deed. Courts enforce unambiguous language as written.
• Overburdening an easement:
  • Using an easement to benefit additional land or for substantially greater purposes than intended places an undue burden on the servient estate and is not allowed without consent.
• Implied easement by necessity:
  • Arises, if at all, when a parcel is severed from a larger tract and is left without reasonable access. The necessity must exist at the time of severance. If there is alternative access or continuous common ownership with an access-providing parcel, necessity generally fails.
• Prescriptive easement:
  • Acquired by using another’s land in an open, notorious, adverse (without permission), and continuous manner for the statutory period (15 years in Vermont). Trivial or sporadic uses typically do not meet this standard.
• Standard of review:
  • Factual findings after a bench trial are reviewed for clear error (highly deferential). Questions of law, including unambiguous deed interpretation, are reviewed de novo (independent review).
• Extrinsic evidence and ambiguity:
  • If a deed is unambiguous, courts enforce it as written. Limited extrinsic evidence may be consulted only to decide whether a deed is ambiguous, not to contradict clear text.
• Appellate preservation and record citations:
  • Appellants must show where and how arguments were preserved in the trial court and support claims with citations to the record and authority. Courts will not search the record for error.
• V.R.C.P. 60(b) and post-trial evidence:
  • New evidence cannot be added after trial without satisfying strict Rule 60(b) standards for relief from judgment.

Conclusion

The Vermont Supreme Court affirmed a careful, deed-centered resolution of a right-of-way dispute: the express, nonexclusive easement across the O’Donnells’ Lot 5 benefits only the Clough homestead parcel (Lots 1 and 3) and does not extend to the after-acquired undeveloped Lot 4. The explicit exclusion in the 1975 deed controls; attempts to rely on maps or permits not in the record, or to contradict unambiguous language, fail. Claims of implied easement by necessity are untenable where the parcel has alternative access and has remained in common ownership with that access-providing parcel. Prescriptive rights cannot rest on sporadic or minimal use.

Beyond resolving a localized boundary-access conflict, the order reinforces cornerstone property and appellate doctrines: easements are strictly confined to the land and purposes granted; servient estates are protected against overburdening; implied and prescriptive rights demand stringent proof; and appellate courts will not revisit credibility findings or consider arguments untethered to the record. Even as a non-precedential entry order, the decision offers practical guidance to Vermont landowners, conveyancers, and litigators: review the grant language first, ensure access rights for each parcel are expressly created at severance, and build the trial record with the documents and testimony upon which you intend to rely.