                                                        Supreme Court

                                                        No. 2010-437-Appeal.
                                                        (NC 07-353)

  Wellington Condominium             :
     Association et al.

            v.                       :

Wellington Cove Condominium          :
       Association et al.




       NOTICE: This opinion is subject to formal revision before
       publication in the Rhode Island Reporter. Readers are requested to
       notify the Opinion Analyst, Supreme Court of Rhode Island,
       250 Benefit Street, Providence, Rhode Island 02903, at Telephone
       222-3258 of any typographical or other formal errors in order that
       corrections may be made before the opinion is published.
                                                                   Supreme Court

                                                                   No. 2010-437-Appeal.
                                                                   (NC 07-353)

        Wellington Condominium                 :
           Association et al.

                     v.                        :

     Wellington Cove Condominium               :
            Association et al.


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


                                          OPINION

       Justice Goldberg, for the Court. Once again, we return to Newport to pass upon a

dispute involving rights of way and waterfront property.1 The plaintiffs, Wellington

Condominium Association (WCA), Wellington Hotel Association, John Rizzo, Arthur Leonard,

and Frederick Howayeck (collectively, plaintiffs), appeal from a Superior Court judgment

denying their claims for an easement across the property of the defendants, Wellington Cove

Condominium Association (Wellington Cove), Wellington On The Harbor Condominium

Owners‘ Association (Wellington Harbor), and Harrington Court Condominium, LLC

(Harrington Court) (collectively, defendants). On appeal, the plaintiffs assign error to the trial

justice‘s finding that the plaintiffs had failed to establish the elements of an implied easement as

well as his conclusion that an express easement was not created by the condominium




1
 See, e.g., Newport Realty, Inc. v. Lynch, 878 A.2d 1021, 1024 (R.I. 2005) (concerning a wharf
on the historic Newport harborfront and the streets or ways on that structure); Meyer v. City of
Newport, 844 A.2d 148, 149 (R.I. 2004) (involving a marina and a public right of way to the
waterfront in an area of Newport known as Waites Wharf).
                                               -1-
declaration.2 For the reasons set forth herein, we affirm in part, vacate in part, and remand this

case to the Superior Court.

                                           Facts and Travel

          The properties at issue in this case consist of neighboring condominiums located on

Narragansett Bay in Newport, Rhode Island. The parcels on which these two condominiums are

located formerly were part of a unified parcel of real estate, originally owned by the declarant, a

joint venture known as Wellington Hotel Associates (declarant).3 The parcels were developed

over several years as separate condominium projects in a somewhat piecemeal fashion.4 In 1986,

the declarant filed and recorded a declaration of condominium (declaration)—―Wellington Yacht

& Racquet Club on Newport Harbor – A Condominium‖—for the entire property.                        The

declaration further provided that the property could be developed in phases and, further, that

portions of the property could be withdrawn from the condominium.

          Thereafter, the declarant assigned its right to withdraw Phases IV and VI5 to Newport

Partners.6 As a ―successor declarant,‖ Newport Partners exercised its option to withdraw Phases


2
 At trial, plaintiffs argued that a prescriptive easement exists as well. On appeal before this
Court, plaintiffs do not challenge the trial justice‘s finding that no prescriptive easement exists.
3
  We distinguish the declarant, Wellington Hotel Associates, from Wellington Condominium
Association, the master association that consists of three sub-associations and is one of the
named plaintiffs in this case. The declarant is not a party to this case.
4
 In their stipulation of facts, the parties state that Wellington Hotel Owners Association is a sub-
association of WCA; likewise, plaintiffs‘ second verified complaint indicates that Wellington
Hotel Association is the same as Wellington Hotel Owners Association because the former is
described as a sub-association of WCA for hotel timeshare owners. We treat Wellington Hotel
Association and Wellington Hotel Owners Association as a single entity.
5
  Phase IV consisted of a parcel of land adjacent to Kirwins Fifth Ward Lane and the west side of
the property‘s tennis courts. Phase VI was designated for a marina adjacent to Phase IV. The
tennis courts are part of plaintiffs‘ condominium.
6
    With respect to the assignment of rights, Article 15 of the declaration establishes the following:
                                                  -2-
IV and VI in 1992.7 The parcel of real estate remaining after the 1992 withdrawal constitutes

plaintiffs‘ premises and the withdrawn parcels are defendants‘ premises.           It is the legal

significance of this severance that is dispositive of the issues in this appeal.

       After Phases IV and VI were withdrawn, portions of defendants‘ premises subsequently

were conveyed to various new owners. On March 13, 1997, Newport Partners conveyed the

withdrawn parcel to Newport Partners LLC, a general partner of Newport Partners.

Subsequently, in October of that year, Newport Partners LLC created ―Wellington on the Cove

Condominium‖ on the withdrawn parcel. That condominium consisted of three land units.8



―The declarant may assign any or all of its rights or privileges reserved or established by this
Declaration or the Condominium Act in accordance with the provisions of the Condominium
Act.‖

Under Article 14, section 14.1 of the declaration—―Reservation of Rights‖—one of the rights
reserved to the declarant and ―its successors and assigns‖ is the right ―to withdraw real estate
from the Condominium.‖
7
 The option to withdraw is set forth in section 14.2 of the declaration, which reads, in pertinent
part:

       ―Declarant hereby explicitly reserves an option * * * to withdraw all or any
       portion of the Withdrawable Real Estate from the Condominium * * *. * * *
       Declarant expressly reserves the right to withdraw all or a portion of the
       Withdrawable Real Estate at any time, at different times, in any order, without
       limitation * * *. * * * Further, the Declarant will provide reasonable rights of
       way over and across the real estate withdrawn necessary to provide adequate
       access to any amenity located in, by, along or adjacent to Narragansett Bay.‖

Accordingly, the third amendment to the declaration specifically states that ―[the Newport
Partners], * * * as successor declarant to Wellington Hotel Associates, by assignment * * *,
under the [d]eclaration * * *, pursuant to the rights reserved in Section 14.2 of the [d]eclaration
hereby withdraws the real estate * * * from the Condominium.‖
8
   After the creation of the Wellington on the Cove Condominium, Newport Partners LLC
conveyed each of the three land units to other parties: one unit was conveyed to Pulte Home
Corporation, which then created a condominium named ―Wellington on the Harbor
Condominium – A Residential Condominium‖; the remaining two units were conveyed to
Goodwin Family Associates (Goodwin). Goodwin conveyed one of its two units to Waterside
                                                 -3-
       The record discloses that, at the time that Newport Partners withdrew Phases IV and VI,

the claimed right of way consisted of a gravel road which ran across the withdrawn parcel and

alongside tennis courts belonging to plaintiffs‘ condominium. That right of way commonly was

used as a point of access to Kirwins Fifth Ward Lane because the alternate access to Harrington

Street from plaintiffs‘ development was blocked by a chain after 1989 and then, since 2008, by a

gate that periodically is locked. The evidence established that plaintiffs used this right of way to

access their tennis courts and that the gates to the tennis courts faced the right of way, separated

by a two-foot-wide strip of plaintiffs‘ land running along the tennis courts. The claimed right of

way was paved around 1999 or 2000 by the developers of the condominiums on defendants‘

premises. It was not until 2005 that the use of the right of way was disputed.

       During the summer of 2005, a chain barrier was placed between two poles, positioned at

the southern end of the claimed right of way, which impeded access by vehicle and foot traffic.

The record discloses that, in the summer of 2006, the chain was replaced by one or more of the

defendants with ―heavy plastic barriers which blocked vehicular traffic, and impeded pedestrian

traffic.‖ Despite plaintiffs‘ protests that they had a right to use the right of way, defendants

refused to remove the barriers.

       In response, plaintiffs filed an action9 against defendants, alleging that, according to the

condominium declaration, plaintiffs had an express easement over the right of way.              The




Development Corporation, which created the Harrington Court Condominium. Goodwin next
conveyed its remaining unit to Wellington Marina LLC, which thereafter constructed a marina
on that land unit.
9
  The plaintiffs‘ complaint requested a temporary restraining order and preliminary injunction
enjoining defendants from installing permanent barriers across the right of way. Further,
plaintiffs sought the entry of a declaratory judgment holding that plaintiffs have an easement
over the claimed right of way. Finally, plaintiffs requested an injunction that would require
                                               -4-
plaintiffs also argued, in the alternative, that they had an implied or prescriptive easement over

the right of way.

         A two-day, jury-waived trial commenced in June 2010. The trial justice issued a written

decision setting forth his factual findings and denying plaintiffs‘ easement claims.10 Specifically,

the trial justice concluded that plaintiffs had failed to prove that the declaration and its

amendments reserved an express easement over the claimed right of way. The trial justice

determined ―that there is no amenity located in, by, along or adjacent to Narragansett Bay which

[p]laintiffs are entitled to access.‖ He further found ―that the intent of the [d]eclarant * * * was

to provide access to the proposed marina of Phase VI.‖11 Accordingly, he found that ―no right of

way was created by § 14.2 of the First Declaration.‖

         The trial justice next found that, ―[w]hen the [d]efendants‘ [p]remises [were] withdrawn,

the Third Amendment did not grant to the [p]laintiffs or its members any right to use the

proposed marina‖ and, ―[t]herefore, no right of way was necessary to access any such

amenity[.]‖12




defendants to remove the barriers. The defendants counterclaimed for trespass—which claim the
trial justice ultimately denied—but that issue is not before us on appeal.
10
  The trial justice‘s decision is set forth in Wellington Condominium Association v. Wellington
Cove Condominium Association, No. NC-2007-353, 2010 WL 3393143 (R.I. Super. Ct. Aug.
25, 2010). We need not repeat all of his findings; we reference only those principally pertinent
to our discussion of the issues presented on appeal. In this decision, the trial justice also
dissolved the June 17, 2009 preliminary injunction that was in place at the time of trial.
11
     The issue of marina access—if any—is not before this Court.
12
   The trial justice also addressed plaintiffs‘ remaining arguments regarding written instruments
that they contend created an express easement. For example, he found that ―the Third
Amendment, and all subsequent documents in [d]efendants‘ chain of title did not create a right of
way for the benefit of the [p]laintiffs.‖ On appeal, however, plaintiffs challenge the trial justice‘s
conclusions with respect to the operative language of section 14.2 of the declaration.
                                                -5-
        As to plaintiffs‘ claim of an implied easement, the trial justice explained that, when a

common owner severs his or her own land and retains the dominant estate, an implied easement

over the servient estate can arise only if the easement is ―absolutely necessary‖ to the use and

enjoyment of the dominant estate. In reaching this decision, however, the trial justice, noting

that plaintiffs‘ premises constituted the dominant estate and the withdrawn parcel was the

servient estate, concluded that the declarant, who withdrew the real estate, retained the dominant

estate and failed to reserve an easement for itself. According to the trial justice, ―the [d]eclarant

withdrew the [d]efendants‘ Premises (alleged servient estate)—i.e. severed it from the Full

Property—in 1992 and did not reserve a right of way for the [p]laintiffs‘ Premises (alleged

dominant estate) via the Third Amendment.‖ Therefore, the trial justice determined that the right

of way was not absolutely necessary for plaintiffs‘ use of their properties because they were able

to access Kirwins Fifth Ward Lane and their tennis courts through the access point on Harrington

Street.13

        Final judgment was entered on September 8, 2010, in favor of defendants. The plaintiffs

filed a notice of appeal on September 16, 2010. After the case came before us on February 29,

2012, pursuant to an order directing the parties to appear and show cause why the issues raised

should not summarily be decided, we concluded that cause had been shown and assigned the

case to the Court‘s plenary calendar. Wellington Condominium Association v. Wellington Cove

Condominium Association, 47 A.3d 331, 331 (R.I. 2012). Accordingly, the case now comes

before us after full briefing and argument.




13
  Specifically, the trial justice indicated that plaintiffs did not need the right of way to access the
tennis courts because the alternative method of entry—a two-foot strip of the estate—was
―adequate to access the gates on the westerly side of [p]laintiffs‘ tennis courts.‖
                                                 -6-
       On appeal, plaintiffs argue that the trial justice erred when he found that they had not

proven the existence of an express easement. In particular, plaintiffs challenge the trial justice‘s

reliance on language that does not appear in the declaration, and they contend that section 14.2 of

the declaration entitles plaintiffs to an express easement over the right of way. Additionally,

plaintiffs argue that the trial justice committed reversible error when he applied the wrong legal

standard to plaintiffs‘ implied easement claim. The plaintiffs request that this Court remand the

case for additional fact-finding on plaintiffs‘ claims for express easement and implied easement

by grant.

       Conversely, defendants argue that plaintiffs failed to establish that an express easement

was set forth in the declaration of condominium. The defendants also argue that plaintiffs failed

to establish an implied easement over the right of way. According to defendants, because

plaintiffs retained the dominant estate after the withdrawal by Newport Partners, plaintiffs were

required to demonstrate ―absolute necessity‖ to support their claim of an implied easement. The

defendants further argue that, at the time of severance, the claimed right of way was neither

apparent nor obvious, and that it was not permanent. Finally, defendants contend that plaintiffs

failed to prove that the declarant intended to create a right of way across defendants‘ premises.

                                       Standard of Review

       ―It is well established that the factual findings of a trial justice sitting without a jury are

accorded great weight and will not be disturbed unless the record shows that the findings clearly

are wrong or the trial justice overlooked or misconceived material evidence.‖ Hernandez v. JS

Pallet Co., 41 A.3d 978, 982 (R.I. 2012) (quoting Fisher v. Applebaum, 947 A.2d 248, 251 (R.I.

2008)); see also Burke-Tarr Co. v. Ferland Corp., 724 A.2d 1014, 1018 (R.I. 1999). ―If, as we

review the record, it becomes clear to us that ‗the record indicates that competent evidence



                                                -7-
supports the trial justice‘s findings, we shall not substitute our view of the evidence for [that of

the trial justice] even though a contrary conclusion could have been reached.‘‖ Hernandez, 41

A.3d at 982 (quoting Grady v. Narragansett Electric Co., 962 A.2d 34, 41 (R.I. 2009)); see also

Tim Hennigan Co. v. Anthony A. Nunes, Inc., 437 A.2d 1355, 1357 (R.I. 1981).

          In litigation over asserted rights to an easement, the party claiming the easement has a

heightened burden of proof of clear and convincing evidence because of the policy

considerations against placing undue burdens upon property. See Ondis v. City of Woonsocket

ex rel. Treasurer Touzin, 934 A.2d 799, 803 (R.I. 2007) (―[W]e have held an individual who

seeks to establish an easement upon the land of another to a high degree of proof.‖ quoting

Berberian v. Dowd, 104 R.I. 585, 589, 247 A.2d 508, 510-11 (1968)). Indeed, ―[a]lthough a

plaintiff in a civil action normally must meet his burden by only a preponderance of the

evidence, the plaintiff must overcome a higher clear and convincing standard to prove an

easement.‖ Id. (citing Berberian, 104 R.I. at 590, 247 A.2d at 511); see also Foley v. Lyons, 85

R.I. 86, 90, 125 A.2d 247, 249 (1956); Tefft v. Reynolds, 43 R.I. 538, 543, 113 A. 787, 789

(1921).

                                              Discussion

                                          Express Easement

          Section 14.2 of the declaration states, in pertinent part, that ―the [d]eclarant will provide

reasonable rights of way over and across the real estate withdrawn necessary to provide adequate

access to any amenity located in, by, along or adjacent to Narragansett Bay.‖ (Emphasis added.)

The plaintiffs argue that this section created an express easement over defendants‘ land for

plaintiffs‘ use and applies to amenities located on plaintiffs‘ property that are located along

Narragansett Bay. According to plaintiffs, the tennis courts qualify as such an amenity, and the



                                                  -8-
trial justice erred when he found that section 14.2 did not create an express easement over the

withdrawn real estate. The plaintiffs base their appellate contentions on the trial justice‘s use of

terms that are not explicitly found in section 14.2. Indeed, plaintiffs point out that the trial

justice‘s analysis focused on whether any rights of way reasonably were necessary for access to

amenities under section 14.2, but they then contend that he ―went astray‖ when he added

language suggesting that the amenity must be a part of defendants‘ premises. The trial justice

declared that ―[w]hen the [d]efendants‘ Premises was withdrawn, the [p]laintiffs had no right to

use any amenity in, by, along or adjacent to Narragansett Bay located within the [d]efendants‘

Premises. Therefore, there was no need for a right of way to access any such amenity.‖

(Emphasis added.) The highlighted language does not appear in section 14.2 of the declaration,

and plaintiffs allege that this is the basis for what they contend was the trial justice‘s error.

        We have held that, ―[w]hen construing an instrument that purportedly creates an

easement, it is this Court‘s ‗duty * * * to effectuate the intent of the parties.‘‖ Hilley v.

Lawrence, 972 A.2d 643, 649 (R.I. 2009) (quoting Carpenter v. Hanslin, 900 A.2d 1136, 1147

(R.I. 2006)); see also Mattos v. Seaton, 839 A.2d 553, 557 (R.I. 2004). ―Nevertheless, ‗[w]hen

the written terms of an agreement are clear and unambiguous, they can be interpreted and applied

to the undisputed facts as a matter of law.‘‖ Hilley, 972 A.2d at 649 (quoting Carpenter, 900

A.2d at 1147); see also Mattos, 839 A.2d at 558. ―Additionally, where terms of [an] easement

are clear and unambiguous, neither oral testimony nor extrinsic evidence will be received to

explain the nature or extent of the rights acquired.‖ Hilley, 972 A.2d at 649 (quoting Carpenter,

900 A.2d at 1147); see also Waterman v. Waterman, 93 R.I. 344, 349, 175 A.2d 291, 294 (1961).

        After careful review, we are satisfied that the relevant language of the declaration is clear

and unambiguous; section 14.2 grants ―reasonable rights of way over and across‖ defendants‘



                                                  -9-
property ―to provide adequate access‖ only with regard to amenities that are located ―in, by,

along or adjacent to Narragansett Bay.‖ The purported amenity in question—the tennis courts

or, for that matter, access to Kirwins Fifth Ward Lane—does not fall within section 14.2. We

agree with the trial justice that ―the intent of the [d]eclarant [in] including § 14.2 in the First

Declaration was to provide access to the proposed marina‖; plainly, this is precisely the amenity

to which section 14.2 refers. Even if the tennis courts could be considered an ―amenity‖ under

section 14.2, this facility bears no relationship to Narragansett Bay. Indeed, the tennis courts are

separated from the harbor by defendants‘ parcel. We are of the opinion that inclusion of

―Narragansett Bay‖ both limits and defines the type of ―amenity‖ to which the section referred.

We read the section to mean that any such amenity must be directly connected to or linked with

Narragansett Bay. A marina fits the bill; tennis courts do not. Therefore, we affirm the trial

justice‘s decision with respect to plaintiffs‘ claim of an express easement.

       We pause to note that the trial justice‘s inclusion of the phrase ―located within the

[d]efendants‘ Premises‖—which does not appear in section 14.2 of the declaration—amounts to

surplusage. The trial justice‘s decision was not premised on any finding concerning upon whose

property the amenities must be located to qualify as an easement. Instead, the trial justice

properly focused his analysis on the precise language of section 14.2 and the specific easement

rights that were reserved—those relating to the marina. He stated that ―[t]he [c]ourt has found as

a fact that there is no amenity located in, by, along or adjacent to Narragansett Bay which

[p]laintiffs are entitled to access,‖ and that finding formed the basis of his conclusion. We

discern no error in that conclusion.




                                               - 10 -
                                         Implied Easement

       We now turn to the more troubling issue in this case. When the trial justice discussed

plaintiffs‘ implied easement claim, he began by noting that ―[t]he Rhode Island Supreme Court

discussed the difference between an implied reservation of an easement and an implied grant of

an easement in Wiesel v. Smira, 49 R.I. 246, 142 A. 148 (1928).‖ In that case, this Court

explained that

                 ―the distinction is based upon the theory that the common owner‘s
                 deed of a portion of his land conveys all essential rights which he
                 has, and that whatever is apparent and continuously necessary to
                 the beneficial use and enjoyment of the granted property is
                 intended to be conveyed so far as the grantor could do so. * * *
                 From this it is clear that where the owner creates a severance by
                 sale of the servient portion of his premises[,] no implication of
                 intention to reserve any rights to himself as owner of the quasi
                 dominant estate ought to be made unless such rights are absolutely
                 necessary to the use of the property reserved.‖ Id. at 249, 142 A. at
                 149 (emphasis added).

Relying on this language, the trial justice reasoned that, ―when a common owner creates a

severance of his own land and retains the dominant portion * * *, he is presumed to reserve

whatever rights he needs in the servient portion of the real estate.‖ Thus, he found that ―an

implied easement can only arise in such a situation if the rights in the servient estate are

absolutely necessary to the dominant estate.‖14

       However, when he applied these principles to the facts of this case, it is our opinion that

he conflated the estates that were retained by the declarant and the portion that comprised

plaintiffs‘ premises.    The trial justice concluded that, when ―the [d]eclarant withdrew the

[d]efendants‘ Premises[,]‖ the declarant did not retain the servient estate. In effect, the trial

14
   We note that, in Wiesel v. Smira, 49 R.I. 246, 253, 142 A. 148, 151 (1928), the easement
involved underground property. See also Burke-Tarr Co. v. Ferland Corp., 724 A.2d 1014, 1019
(R.I. 1999) (―The right to the flowage of water and the disposal of waste underneath the lands of
another can be acquired * * * by implication from the severance of heritage ownership * * *.‖).
                                                - 11 -
justice found that plaintiffs, the original condominium association, failed to reserve an easement

for its premises when the parcel was severed. Having made this determination, the trial justice in

his analysis then proceeded under the framework of an implied easement by reservation, which

triggers the more exacting standard that the use of the easement must be ―absolutely necessary.‖

Wiesel, 49 R.I. at 249, 142 A. at 149. The trial justice declared that ―the [c]laimed [right of way]

is not ‗absolutely necessary‘ for [plaintiffs]‖ and, proceeding from that premise, he held that

―[p]laintiffs have failed to prove the existence of an implied easement by reservation by clear

and convincing evidence.‘‖ This Court, however, is not persuaded that this was the proper

analysis because it rests on the erroneous conclusion that plaintiffs conveyed a portion of land

without expressly reserving a right of way for their use. We are of the opinion that, in the

circumstances of this case, the declarant withdrew and retained a portion of the premises—the

servient estate—for its own commercial purposes, thereby in effect transferring the dominant

estate to plaintiffs.

        Our examination of the implied easement claim turns on a determination of which party,

for purposes of easement principles, was the common owner of the property vested with the right

to reserve an easement unto itself. As we confront that challenging question and the remaining

issues that stem from it, we are mindful that certain basic tenets of property law do not coalesce

easily with complex modern real estate transactions and the law of condominium development

and ownership. Indeed, as this case illustrates, we are compelled to apply venerable common

law principles of easements against a backdrop of contemporary statutory approaches to real

estate ownership. The law of implied easements may not be well-suited to the facts of this

complex case, but we nonetheless begin our discussion of the grantor/grantee dynamic and the

type of implied easement that may or may not arise when the declarant severs the real estate



                                               - 12 -
from the condominium and retains it for further development. Although the severance was

characterized as a withdrawal of real estate, it constitutes a division of a parcel of land, resulting

in separate parcels of real estate.15

        According to the preamble of the declaration, the ―owner in fee simple‖ of the entire

parcel was the declarant, an entity that is not a party to this action, to the extent that its corporate

existence even continues. Under section 1.1 of the declaration, the declarant is defined as ―the

owner in fee simple of the Real Estate.‖ The declarant reserved to itself the option to withdraw

certain real estate from the parcel in accordance with section 14.2. When Newport Partners was

assigned the same rights as the declarant, Newport Partners effectively stepped into the shoes of

the declarant. Therefore, it was the declarant that withdrew the real estate and not plaintiffs. The

plaintiffs were powerless to prevent this assignment to Newport Partners, and they equally were

incapable of blocking the withdrawal of defendants‘ parcel or reserving anything to themselves.

The plaintiffs conveyed nothing and cannot be deemed to be grantors or characterized as a

common owner who conveys a portion of its estate. The plaintiffs simply claim that the disputed

right of way was used and enjoyed during unity and for many years thereafter.

        Because the common owner severed a portion of its estate and retained it for further

development, a different analysis must be undertaken. Rather than framing the claim as an

implied easement by reservation, it must be examined as an implied easement by grant in favor

of WCA, the owner of the dominant parcel.

        ―We have previously held that[,] ‗[u]pon the severance of an heritage, a grant will be

implied of all those continuous and apparent easements which have in fact been used by the

15
   Withdrawal and subdivision are close cousins; here, the withdrawal of Phases IV and VI was
akin to a subdivision of land. General Laws 1956 § 45-23-32(51) defines ―[s]ubdivision‖ as
―[t]he division or re-division, of a lot, tract or parcel of land into two or more lots, tracts, or
parcels.‖
                                                 - 13 -
owner during the unity, though they have no legal existence as easements.‘‖ Catalano v.

Woodward, 617 A.2d 1363, 1367 (R.I. 1992) (quoting Kenyon v. Nichols, 1 R.I. 411, 417

(1851), overruled on other grounds by Knowles v. Knowles, 12 R.I. 400, 400 (1879)); see also

Ondis, 934 A.2d at 805; Wiesel, 49 R.I. at 250, 142 A. at 150 (explaining that, ―when certain

characteristics, such as continuity, apparency, and necessity exist, a grant will be implied‖ and

that ―the test for necessity is whether the easement is reasonably necessary for the convenient

and comfortable enjoyment of the property as it existed when the severance was made‖).

Accordingly, the standard for an easement by grant requires that the party claiming an easement

show by clear and convincing evidence that the claimed easement was (1) apparent, (2)

permanent, and (3) reasonably necessary for the enjoyment of the claimant‘s parcel prior to

severance. See Catalano, 617 A.2d at 1367; see also Vaillancourt v. Motta, 986 A.2d 985, 987-

88 (R.I. 2009); Hilley, 972 A.2d at 650; Ondis, 934 A.2d at 803, 805.

       The trial justice did not make any findings or legal conclusions with respect to whether

an implied easement by grant existed when the declarant severed the estate and retained the

servient estate for itself. Therefore, the claim by plaintiffs must be examined under these

principles of implied easement by grant.

       Furthermore, the record in this case may not contain sufficient facts upon which the trial

justice properly could pass upon the existence of an implied easement by grant, necessitating the

taking of additional testimony.    Accordingly, we vacate that portion of the trial justice‘s

judgment with respect to the plaintiffs‘ claim of implied easement and remand the case for

further evidence and fact-finding to ascertain whether the plaintiffs have an implied easement by

grant over the claimed right of way.




                                             - 14 -
                                           Conclusion

       In conclusion, for the reasons set forth herein, the plaintiffs‘ appeal is sustained in part

and denied in part.    We vacate the judgment of the Superior Court with respect to its

determination of the claim of an implied easement by reservation and affirm the judgment in all

other respects. We remand this case to that court for further proceedings in accordance with this

opinion.




                                              - 15 -
                           RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Wellington Condominium Association et al. v. Wellington Cove
                      Condominium Association et al.

CASE NO:              No. 2010-437-Appeal.
                      (NC 07-353)

COURT:                Supreme Court

DATE OPINION FILED: June 26, 2013

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Associate Justice Maureen McKenna Goldberg

SOURCE OF APPEAL:     Newport County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Stephen P. Nugent

ATTORNEYS ON APPEAL:

                      For Plaintiffs: Timothy T. More, Esq.

                      For Defendants: Stacey P. Nakasian, Esq.
