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Abstract

In O'Donovan v. McIntosh, a real estate developer, Timothy O'Donovan, brought an action seeking, in part, a declaratory judgment concerning the transferability of an easement that he purchased from the defendant, John A. McIntosh, Jr. O'Donovan and McIntosh subsequently filed a joint motion for partial summary judgment to obtain a ruling that would affirm the assignability of the easement in question. Susan Huggins, the owner of the servient estate upon which the easement in question imposed, objected to this motion as a third party defendant. She filed a cross-motion for summary judgment maintaining that the easement in question was not transferable. The trial court agreed with Huggins and granted her motion. O'Donovan and McIntosh appealed to the Supreme Judicial Court of Maine, sitting as the Law Court. After first determining that the disputed easement was an easement in gross, the issue before the Law Court became whether such easements were capable of assignment. In a 4-2 decision, the Law Court elected to reverse the trial court and held that the assignability of easements in gross depended upon a determination of the intent of the parties. In so holding, the Law Court changed the contours of Maine's easement law. Before O'Donovan, Maine courts adhered to the school of thought that easements in gross were personal rights and, therefore, not assignable. In an attempt to discern whether the court was correct in overturning its past decisions regarding easements in gross, this Note examines the legal background of these property interests, examining in particular the assignability of the different types of easements in gross. This Note also explores contemporary views on the subject and delves into the present state of the law as it exists in a number of jurisdictions. Finally, this Note concludes that the Law Court correctly held that the McIntosh easement was assignable. However, its general ruling, that all easements in gross are capable of assignment depending upon the intent of the parties, was overly broad.

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