Can water storage easements be transferred without the underlying land? Johnson v. Higley Explained

In Johnson v. Higley, the Utah Court of Appeals addressed whether a water storage easement could be transferred independently of land ownership and whether purchasers with notice of recorded easements could claim protection under recording statutes.

Background and Facts

The Johnson brothers inherited property adjacent to land owned by the Higleys. In 1946, previous owners of the Higley property granted Paul Wrathall easements to store water in Blue Lakes reservoirs located on what became the Higley property. The recorded deeds granted unconditional and perpetual easement rights without specifying particular land where the water must be used. Wrathall later conveyed a one-half interest in the easement to Maxwell Johnson, the Johnsons’ predecessor, though this deed remained unrecorded until 1995. When the Higleys purchased their property in 1990, they had actual notice of the original Wrathall easements but disputed the validity of the assignment to the Johnsons.

Key Legal Issues

The court addressed whether the easement was appurtenant (tied to specific land and non-transferable) or an easement in gross (independent of land ownership and potentially transferable). The court also examined whether the Higleys qualified as bona fide purchasers protected by recording statutes despite having notice of the original recorded easement documents.

Court’s Analysis and Holding

The court determined the easement was a commercial easement in gross because the Wrathall deeds created rights independent of any particular land use, allowing storage “or other use of said water” without geographic restrictions. Since the easement was commercial in nature—providing economic benefit rather than personal satisfaction—it was fully transferable under Utah law. The court also found the Higleys had constructive notice of the easement through the recorded Wrathall deeds and a duty to inquire further given their knowledge of the water infrastructure on the property.

Practice Implications

This decision provides important guidance for property transactions involving easement rights. Practitioners should carefully analyze easement language to determine whether rights are appurtenant or in gross, as this affects transferability. The case also demonstrates that recorded easement documents may provide constructive notice extending beyond their express terms, requiring purchasers to conduct thorough inquiries into current easement ownership and use patterns.