Issue: Is the language of the contract “Use of apartment swimming pool to be available to
purchaser and his family” amount to a grant of a mere license to the Wynns and their
family; or did the Wynns acquire a private easement across the land of D to the
swimming pool and to the use of the pool, which easement was thereafter transferred to
P.
Rationale:
– A license is a “right, given by some competent authority to do an act which
without such authority would be illegal, a tort, or a trespass.” A license is
personal between the licensor and the licensee and cannot be assigned. A grant
which creates any interest or estate in land is not a license.
– An easement is a “privilege without profit, which the owner of one tenement has a
right to enjoy in respect of that tenement in or over the tenement of another
person; by reason whereof the later is obliged to suffer, or refrain from doing
something on his own tenement to the advantage of the former.
– Easements may be created by express grant or reservation, by implication, by
estoppel or by prescription. The only rights acquired by the Wynns in the
property were acquired by deed from Temco. The provisions of the contract were
merged with the deed and there deed is silent as to the pool and the contract made
use to the pool only to “purchaser and his family.” This is thus only a mere
license and not an easement and the right to use of the pool does not extend
beyond the Wynns.