Miller v. Lutheran Conference & Camp Association

In 1895, 2 brothers with the last names Miller formed the Pocono Spring ice company in Pennsylvania. They wanted to build a dam over a creek to create a lake. 4 years later, the Millers assigned their monopoly to the lake to Frank with the provision "his heirs & assigns forever."

Frank in turn gave 1/4 of his interest in the lake to Rufus with the provision "his heirs & assigns forever."

In the period 1900-1925, Frank & Rufus ran a recreational fishing, boating, and bathing business in the lake.

Rufus died in 1925.

Frank & the heirs of Rufus began to license others to use the lake. Later, the executors of Rufus gave a license to use to Lutheran Conference & Camp Association.

Frank's wife sued the Lutheran Conference & Camp Association ("Association") for trespassing on the lake.

Franks argued before the court that they hadn't granted bathing rights to Rufus; thus, Rufus couldn't grant bathing rights to the Association.

The Millers (& Franks) side win in the trial court in Pennsylvania.

Is an easement in gross divisible without the consent of all parties holding an interest in the easement?

An easement in gross cannot be assigned (divided) unless all parties holding an interest in the easement in gross consent to the division.

Rufus could not grant an easement in gross to the Association without the consent of the Franks/Millers.

An easement in gross means a personal easement that doesn't run with the land.

In an easement in gross, there is no dominant estate.

Easements in gross are not divisible without the consent of all parties holding an interest.

According to Investopedia, "[https://www.investopedia.com/terms/e/easement-in-gross.asp An easement in gross, also known as a “personal easement,” attaches the right of use to a single individual or entity rather than to the property itself."

A judge ruling on this case stated that an easement in gross in assignable but not divisible.

An easement in gross can be given by (1) direct grants & (2) open & adverse use.

• Open & adverse use ==>easement by prescription.