Godspeed's hypothetical about encroachment on an easement that goes unnoticed by the easement holder is similar to the facts of this case: Godspeed's predecessors in interest erected a gold plant that blocked part of the easement, but Reeves's predecessor did not bring a case because it still was able to access its land. Further, "expanding a garden" and "extending a lawn" are not enough to trigger extinguishment of an easement by prescription, see Hansen , 220 P.3d at 917, and "building an addition to [a] deck" may not be in all circumstances, see Titcomb v. Anthony , 126 N.H. 434, 492 A.2d 1373, 1375-76 (1985) (holding that an easement was not totally extinguished because passage on foot was still possible).The parties agree that if we adopt partial extinguishment, then the standard set forth in Hansen should apply.
"'" Id. at 96, 497 A.2d at 865 (quoting Delaney v. Gurrieri, 122 N.H. 819, 821, 451 A.2d 394, 394 (1982)). See also Titcomb v. Anthony, 126 N.H. 434, 438-39, 492 A.2d 1373, 1376 (1985). Real Estate Advisors asserts that our decision here should be governed by Donaghey v. Croteau, 119 N.H. 320, 401 A.2d 1081 (1979), where we stated that the use of a right-of-way must be reasonable and must take into account the parties' contemplated use of the property, as well as any changed circumstances which have occurred.
Logan v. Brodrick, 29 Wn. App. 796, 800, 631 P.2d 429, 432 (1981). The uses to which easements may be put are questions of fact to be arrived at by considering all of the surrounding circumstances, including location, the uses of both parties' properties and "the advantage of one owner's use and the disadvantage to the other owner caused by that use."' Titcomb v. Anthony, 126 N.H. 434, 439, 492 A.2d 1373, 1376 (1985) (quoting Delaney v. Gurrieri, supra at 821, 451 A.2d at 395). When the easement in this case was conveyed and the uses authorized under it set forth, its use was intended to be incidental to a residential use.
See, e.g., Matoush v. Lovingood, 177 P.3d 1262, 1270 (Colo. 2008) (only "incompatible or irreconcilable use" with easement holder's authorized rights sufficient to extinguish easement by adverse possession); Smith v. Muellner, 283 Conn. 510, 518, 932 A.2d 382, 390 (2007) (dominion over servient estate insufficient; acts of a servient owner must be "distinctly adverse" to easement rights); Mueller v. Hoblyn, 887 P.2d 500, 507 (Wyo. 1994) ("use of the servient estate made during the period of adverse possession [must be] sufficiently hostile and inconsistent with the use permitted by the easement"); Titcomb v. Anthony, 126 N.H. 434, 437-38, 492 A.2d 1373, 1375-76 (1985) (use of land by servient tenant must be "incompatible or irreconcilable with" easement rights); New England Home for Deaf Mutes v. Leader Filling Stations Corp., 276 Mass. 153, 158-59, 177 N.E. 97, 99 (1931) (occupation of land by servient tenant must be "irreconcilable with the rights of the dominant tenant" to extinguish easement). This view is consistent with Maine's elevated burden of proof required in claims of abandonment of an easement, one basis for which can be adverse possession.
The plaintiff also devotes several pages of his brief to a tangential discussion of cases from other jurisdictions that elaborate on what is required, under particular factual scenarios, to establish that a servient owner's use of its property is adverse to an easement holder such that the use operates to extinguish the easement. See Titcomb v. Anthony, 126 N.H. 434, 492 A.2d 1373 (1985); Castle Associates v. Schwartz, 63 App. Div. 2d 481, 407 N.Y.S.2d 717 (1978). Those cases are illustrative of the general proposition that the type of use that will be considered sufficiently adverse to extinguish an easement prescriptively necessarily differs from that required to create an easement prescriptively.
In addition, "the scope of an easement may be altered when it is adversely possessed as to some uses, though it is not so possessed as to all uses." Titcomb v. Anthony, 126 N.H. 434, 438, 492 A.2d 1373, 1376 (1985); 3 Powell on Real Property, ยง 34.21 at 34-260 (1995). Sabino does not challenge the trial court's ruling that defendants had not abandoned the easement.