## Facts

- John A. McIntosh, Jr. acquired property at 184 Foreside Road in Falmouth, Maine, which lay between Foreside Road and a rear tract known as the Fish parcel.
- After pursuing (and later losing) an option arrangement related to development of the Fish parcel, McIntosh decided to sell 184 Foreside Road while preserving access to the Fish parcel.
- On May 30, 1989, McIntosh conveyed 184 Foreside Road to Susan Huggins by deed that reserved a 50-foot right-of-way across the conveyed parcel.
- The reservation stated it benefited the grantor “and his heirs and assigns,” allowed ingress/egress to the conveyed lot and “other land adjacent to and behind” it (the Fish parcel), restricted the route’s placement near the house, and reserved utility installation rights for the benefit of the Fish parcel.
- The reservation also limited the grantor’s “assigns” to those building and/or occupying a subdivision located on the Fish parcel.
- Timothy P. O’Donovan later purchased the Fish parcel and entered an agreement with McIntosh to acquire the reserved easement to support a subdivision development.
- Local subdivision review was suspended due to uncertainty about whether the reserved easement could be transferred, prompting litigation seeking a declaratory judgment on transferability.

## Issues

1. Whether the reserved right-of-way was an easement appurtenant to the Fish parcel or an easement in gross held personally by McIntosh.
2. If the easement was in gross, whether Maine law permits assignment of an easement in gross, and what standard governs assignability.

## Decision

- The Law Court held the reserved right-of-way was an easement in gross rather than appurtenant to the Fish parcel.
- The Law Court held easements in gross are assignable when the parties intended assignment, as shown by the deed language and context.
- Applying that intent-based rule, the court concluded the deed reflected intent to allow assignment, limited to a defined class connected to subdivision development on the Fish parcel.
- The court vacated the partial summary judgment that had declared the easement nonassignable and remanded for further proceedings.

## Legal Principles

- An easement is in gross when it is reserved for the benefit of a person (and specified successors) rather than tied to ownership of a dominant estate.
- Maine does not treat easements in gross as categorically nonassignable; assignability turns on the parties’ intent.
- Intent is determined primarily from the deed’s text, including express references to “heirs and assigns” and any defined limits on who may qualify as an assignee.
- A deed may validly permit assignment of an easement in gross to a restricted class of successors associated with a specified development use.

## Conclusion

The Maine Supreme Judicial Court held that the reserved right-of-way was an easement in gross but was transferable because the deed evidenced an intent to allow assignment to specified successors connected to Fish parcel subdivision development, requiring vacatur of the contrary declaratory ruling and remand.


O’Donovan v. McIntosh, 728 A.2d 681 (Me. 1999)