Nevada Supreme Court declines to extend Nevada's easement law
The first of the Court’s two published opinions issued on June 5, 2008 involved proof that good fences don’t necessarily make good neighbors.
The Nevada Supreme court declined to extend Nevada’s law of easements in Brooks v. Bonnet. Brooks owned a lot next to one owned by the Bonnets. The lots had originally had been part of a larger parcel, the deed to which had included an easement in favor of the City of Reno for a public road. When the parcel was divided into the smaller lots, the easement continued in those deeds. E City apparently never built the road, but Brooks obtained an encroachment permit to build a driveway over the easement. The permit provided that the driveway served both lots.
The Bonnets bought their lot in 2001, and built a fence over the driveway, blocking access to Brooks’s lot. The Bonnets also successfully applied for the City to abandon its easement and for the e encroachment permit revoked. Brooks claimed he had an easement under three theories: express, by virtue of the public road easement; implied by necessity, and a residual easement.
The Court rejected the express easement, as the public road easement was not in favor of Brooks. Nor did he have an implied easement by necessity, as the driveway, while perhaps more convenient, was not the only access to his lot.
The Court declined to adopt the theory of residual easement, which holds that “a private easement arises in a public highway following its vacation or abandonment from the mere fact that the landowner’s property abuts the former public way.” The Court noted that this theory would violate NRS 278.480, which provides that abandonment of a easement by a city results in reversion of the easement to the “abutting property owners in the approximate proportion that the property was dedicated by the abutting property owners or their predecessors in interest.” Additionally, NRS 408.523(3) provides that an abandoned easement for a public highway is simply destroyed.
The city’s abandonment of the easement meant the easement reverted to the Bonnets.
