Does an easement granted with 'full right of use' over the grantor's roads allow the dominant owners, who propose to subdivide their property, to maintain and improve the existing roads, and may a court declare in advance that the proposed subdivision use is an unreasonable burden on the servient estate?

In 1938, Glenbrook Company granted Henry Quill an easement and right-of-way, with 'full right of use' over the grantor's roads 'as now located or as they may be located hereafter' (relocation at grantor's expense), from U.S. Route 50 to Quill's 80-acre property. The grant ran to Quill, 'his heirs and assigns forever.' Quill died in 1943, and his property passed in 1945 to Johnson, who sold it in 1960 to Cox and Detrick for $250,000. Cox and Detrick planned to subdivide the tract into 40 to 60 parcels of one acre or more, each limited to a residence and guesthouse, with no commercial development, over about ten years. They spent about $17,000 on preliminary work, including leveling the narrow 'back road' with heavy equipment, which damaged trees, and they wanted to widen it. Glenbrook Company operates a seasonal family resort on the servient land and seeks to preserve a quiet, secluded atmosphere. It barricaded the alternate 'golf course road.' The back road in 1938 was narrow, unpaved, and wide enough for one car with occasional turn-outs. The Quill easement was the only access to the 80 acres.

Glenbrook Company sued for a declaratory judgment on the scope and extent of the Quill Easement, and Cox and Detrick answered and counterclaimed for the same relief. After a bench trial, the lower court entered a declaratory judgment limiting the easement to uses consistent with a conservative family mountain resort and to access by a single family in occupancy and their guests, limiting use to the roads as presently constructed and maintained or as Glenbrook might relocate them, and declaring that the proposed subdivision use would be an illegal burden and surcharge on the servient estate. Cox and Detrick appealed to the Supreme Court of Nevada.

(Thompson, J.)

Yes as to the first question, within limits, and no as to the second. The owners may maintain, repair, and improve the way within limits, but the court may not declare in advance that the proposed subdivision use is an unreasonable burden, and the lower court's restrictions are largely unwarranted. The judgment is modified and remanded.

The phrase 'full right of use' is clear and unambiguous and cannot be recast as a restricted right of use. The extent of an easement created by conveyance is fixed by the conveyance if clear, so the lower court erred in treating the phrase as open to judicial interpretation with extrinsic evidence. Keeler v. Haky, 160 Cal. App. 2d 471, 325 P.2d 648; Restatement, Property, sec. 482.

The easement is appurtenant, and the grant to Quill 'his heirs and assigns forever' carries it to successors of the whole dominant estate and of each part into which it is subdivided, unless the grant provides otherwise. The restriction to a single family in occupancy destroys that appurtenant character.

The easement holder may maintain, repair, and improve the way in a manner reasonably calculated to promote the easement's purposes, provided the work stays within the road's exterior borders as of the 1938 grant, does not unduly burden the servient estate, and does not unreasonably interfere with others' rights of use. The grant does not specify width, so the parties' intention at the time of the grant controls. The only evidence shows a one-car-wide road with turn-outs, so widening is not permitted.

The grant allowed relocation of the roads by Glenbrook at its own expense, so barricading the 'golf course road' is permissible.

Whether actual use unreasonably burdens the servient estate is primarily a question of fact. It cannot be resolved on speculation about a future subdivision, because a declaratory judgment must address present, ascertainable facts. The lower court should have stated only the governing legal principle. Whether the subdivision will unreasonably burden the servient estate or interfere with others' rights awaits evidence in later litigation, if it occurs, and the developers proceed subject to that contingency.

Concurrence (Badt, C.J.) The conclusions are correct, but the opinion's statement that future factual circumstances cannot be fairly determined now should not unduly limit courts in declaratory judgment actions. An expressed purpose and intention to perform acts that, on satisfactory proof, would surcharge the servient tenement with an unreasonable burden is a present threat of invasion of the plaintiff's rights and is subject to declaratory determination. It need not await the event. NRS 30.030, 30.040, 30.050, 30.070, 30.140; Kress v. Corey, 65 Nev. 1, 189 P.2d 352.