01-0825 Gojmerac v. Mahn

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Accordingly, the dominant estate does not include Lots 6 and 7 of Block Two because a right of first refusal is not equal to an ownership interest and the owners of Lots 6 and 7 are not entitled to use the easement.

“‘A right of first refusal is essentially a conditional option dependent upon the decision or the desire of the [landowner] to sell.’ [Citation]. It is distinguishable from an ordinary option in that it provides the prospective purchaser the right to buy upon specified terms only if the seller decides to sell. [Citation]. Given these definitions, we cannot agree that land on which David had a right of first refusal was land ‘owned by the grantee at the time the easement’ was created.”

Further, even though the dominant estate was subdivided into additional lots, those new owners can use the easement even though the new lots are not now “appurtenant to the servient estate,” plaintiff’s lot. This is so because, contrary to plaintiff’s argument, the term “appurtenant” is not synonymous with “abutting” or “adjacent.”

We reverse the trial court’s conclusion that Lots 6 and 7 have the right to use the easement and we affirm in all other respects.

Recommended for publication in the official reports.

Dist III, Lincoln County, Nolan, J., Cane, C.J.

Attorneys:

For Appellant: James A. Wedemeyer, Merrill

For Respondent: George G. Russell, Merrill