c. The nature and situation of the property subject to the Easement

The Greens’ Property contains a single-family detached dwelling with a backyard pool and patio area that is enclosed by a fence five or six feet in height. While the Greens’ pool is located closer to the Easement than their house, nothing I saw during the site visit leads me to believe that building a road on the Easement would seriously disrupt the Greens’ enjoyment of their pool.⁷⁸ The Greens made a conscious effort to locate their house as far away from the side of their Property where the Easement is located as possible, and there is a comfortable distance between the pool and the Easement. Under the Greens’ proposed alternative, which would route all Independence Towns Project traffic down Owensby Drive to East Fulton Road and then across Lot 3, cars actually would pass closer to the Greens’ house than if the Easement is used as the primary access. I appreciate that the Greens nevertheless would prefer that arrangement, but that does not mean that the Templins’ proposed use of the Easement as the primary point of access would interfere unreasonably with the Greens’ enjoyment of their Property. Also, landscaping could be added alongside the proposed access road to minimize further the road’s impact on the Greens’ backyard and pool.⁷⁹ Considering all of these factors, I find that the situation of the Greens’ Property is such that the use of the Easement as the primary access to the Independence Towns Project will not disrupt the Greens’ enjoyment of their Property to an unreasonable extent. Accordingly, this factor favors the Templins.

d. The manner in which the Easement has been used

It is undisputed that the Easement has been used almost exclusively as the driveway to the Owensby House for the thirty-three years the Greens have owned their Property. This factor favors the Greens.

e. On balance, the Templins’ proposed use of the Easement is reasonably necessary for their convenient enjoyment of the PA Lands

Three of the four factors used to determine the reasonableness of an easement’s use, including the most important factor, the purpose for which the easement was created, favor the Templins, while only one factor, the manner in which the easement has been used, favors the Greens. To find that the proposed use of the Easement is unreasonable, I would have to find that the use of the Easement primarily as a driveway for over thirty years outweighs all of the other relevant factors. In the circumstances of this case, that would not be appropriate. The Easement’s prior use as a driveway to a single house is not inconsistent with its proposed use as an access road to a 49 unit development. The uses the Owensbys and Independence Dogs made of the PA Lands did not require them to expand the Easement, but this does not warrant limiting the scope of the Easement to its historic use. I also must consider the facts that: (1) the language of the Easement contains no restrictions on its use; (2) the Easement was created for the purpose of providing access to a medium to high-density subdivision; and (3) the proposed use of the Easement likely will not disrupt significantly the Greens’ enjoyment of their Property. In these circumstances, I find that the Templins’ proposed use of the Easement as the primary access to the Independence Towns Project is reasonably necessary for their convenient enjoyment of the PA Lands under the four factor test.

2. Is the Independence Towns Project a normal development of the PA Lands?

Section 4.10 of the Restatement also provides that “[t]he manner, frequency, and intensity of the use [of an Easement] may change over time to take advantage of developments in technology and to accommodate normal development of the dominant estate . . . .”⁸⁰ Because the Greens’ primary complaint about the Templins’ proposed use of the Easement is that it increases the frequency of the Easement’s use from fewer than 5 trips per day to 370, this use will be permissible only if it is designed to accommodate normal development of the PA Lands.

Here, the conversion of the 12.3 acre PA Lands into a 49 unit townhouse complex represents a normal development of those lands. As previously discussed, the Owensbys created the Easement for the purpose of providing access to the PA Lands upon their subdivision.⁸¹ This is important because, under the Restatement, “[t]he manner in which the servitude was created may be relevant in determining” whether a proposed development of land constitutes normal development.⁸² Moreover, when the Greens acquired their Property, they had at least constructive notice that the PA Lands were likely to be subdivided at some point. When the Greens purchased their Property, the PA Lands already were zoned R-4, a designation that allows for high-density residential use.⁸³ Moreover, much of the land in the vicinity of the Greens’ Property previously was converted into medium and high-density residential developments similar to the Independence Towns Project.⁸⁴ As indicated in the Restatement, a change from rural to suburban is normal development.⁸⁵ Consequently, the conversion of the PA Lands from one home on a 12.3 acre lot in a relatively suburban setting to a 49 unit suburban townhouse complex clearly represents normal development under the Restatement. Therefore, I conclude that the use of the Easement as the primary access to the Project, which merely increases the frequency of the Easement’s use, is acceptable.

3. Will the Templins’ expansion of the Easement’s use cause unreasonable damage to or interfere unreasonably with the enjoyment of the Greens’ Property?

The Greens submitted no persuasive evidence to indicate that the use of the Easement as the primary access to the Independence Towns Project will cause unreasonable damage to their Property. Comment g to Restatement § 4.10 provides that “the servitude owner is not entitled to cause any greater damage than that contemplated by the parties, or reasonably necessary to accomplish the purposes of the servitude.”⁸⁶ Here, the Templins plan to do no more than pave over the entirety of the Easement. There is no indication that this process will cause any damage to, or effect in any way, the portion of the Greens’ Property that lies outside the Easement. Accordingly, I find that the Templins’ proposed use of the Easement will not cause unreasonable damage to the Greens’ Property.

Likewise, for the reasons discussed in Part II.C.1.c supra, I find that the expansion of the Easement will not interfere unreasonably with the Greens’ enjoyment of their Property, based in part on the fact that the Greens’ backyard pool is located 80 feet from the Easement, a sufficient distance to prevent traffic across the Easement from interfering with the Greens’ enjoyment of their pool and Property. Based on these findings and my conclusions above that the proposed use of the Easement is reasonably necessary for the convenient enjoyment of the PA Lands and the 49 unit Independence Towns Project is a normal development of the PA Lands, thus allowing for an increase in the frequency of the Easement’s use, I hold that the Templins’ proposed use of the Easement as the primary access to the Independence Towns Project is permissible under § 4.10 of the Restatement.

4. The finding that the Templins’ proposed use of the Easement is permissible also comports with case law from other jurisdictions

In a matter such as this, where neither party has cited any Delaware case law that is directly on point, it is useful to consider cases from other jurisdictions. Courts in other jurisdictions have found uses of easements similar to the Templins’ proposed use to be permissible under Restatement § 4.10.

In Wolf Creek, the court found that a mere increase in the volume of traffic over an easement serving a 50 unit condominium development did not overburden the easement such that its use could be enjoined.⁸⁷ In making its ruling, the court relied on Restatement § 4.10 and observed that “as a general rule, an increase in traffic over an easement in the process of normal development of the dominant estate, in and of itself, does not overburden a servient estate.”⁸⁸ The court further noted that evidence tending to support a finding that an easement is being overburdened includes: “(1) decreased property value; (2) increased noise and traffic or interference with the servient owner’s peace and enjoyment of the land; and (3) physical damage to the servient estate.”⁸⁹

Here, the Greens base their challenge to the proposed use of the Easement on little more than a claim that traffic over the Easement will increase. But, as discussed above, because this increase in traffic comports with what one would expect from the normal development of the PA Lands, the increase alone is not sufficient to prove an unreasonable overburdening of the Easement. Also, while traffic over the Easement will increase, as I previously discussed, the Greens have not shown that the increase will have more than a minimal effect on the Greens’ enjoyment of their Property, due to where the Easement is located in relation to the house and fenced-in pool. Likewise, I have found that the Templins’ proposed use of the Easement will not damage the Property, and the Greens have produced no evidence that it will decrease the value of their Property.

Similarly, in Regen, the court found that the use of an easement to access a 30,000 square foot commercial stable did not unreasonably overburden the easement under Restatement § 4.10.⁹⁰ Even though the use of the dominant estate changed from residential to commercial with the building of the stable, the court held that “[a]s a matter of law, an increase in traffic due to the normal development of the dominant estate does not constitute an unreasonable increase in the burden on an easement for ingress and egress.”⁹¹ Again, because the Templins’ proposed use of the Easement does nothing more than increase the traffic over the Easement due to the normal development of the PA Lands, the proposed use is permissible.⁹²

In support of their position, the Greens rely on Leffingwell Ranch,93 but this case provides little help for their argument. In Leffingwell Ranch, the court enjoined the proposed use of an easement to access a 174 parcel development because the easement would be overburdened by this use.94 The court in Leffingwell Ranch did not rely on Restatement § 4.10 in reaching its decision, however, nor did it cite the significant increase in traffic over the easement as a basis for enjoining the easement’s proposed use. Instead, the court noted that the parties intended the easement to be used only to access certain homesteads and not to be expanded beyond this use.95 In contrast, the Easement at issue here was created for the purpose of providing access to the PA Lands at a time when the eventual subdivision of those lands was clearly foreseeable as part of their normal development. The court in Leffingwell Ranch also found relevant the facts that the defendant had previously acknowledged the restricted nature of the easement and, thus, was estopped from taking a contrary position, and that the proposed use of the easement impermissibly allowed access to lands not held by the grantees at the time of the grant and, thus, not appurtenant to the easement.⁹⁶ No comparable concerns exist in this case. Thus, Leffingwell Ranch is distinguishable from the present circumstances and does not support a finding that the Templins’ proposed use of the Easement is impermissible.

5. No portion of the Easement was extinguished by abandonment or termination of purpose and the doctrine of acquiescence is inapplicable here

p>The Greens claim that the portion of the Easement that does not coincide with the driveway has been abandoned. In Delaware, an easement “may be lost by abandonment ‘when there is intent to abandon together with manifestation of such intent through acts.’”⁹⁷ Accordingly, mere nonuse alone is insufficient to find that an easement has been abandoned; rather, “[t]here must be unequivocal acts affirming the purpose to abandon and thereby give up ownership.”⁹⁸

The Greens contend that the Templins and their predecessors manifested an intent to abandon the Easement by allegedly using Lot 3 as the primary access to the PA Lands in both the Independence Dogs Plan and the Alternate Plan. But, their argument is unpersuasive. Contrary to the Greens’ assertion, the Independence Dogs Plan does not use Lot 3 as its primary access, but rather limits the use of Lot 3 solely to access for emergency vehicles. The Independence Dogs Plan states, next to the road through Lot 3: “40’ wide access easement to be available for emergency vehicles.”⁹⁹ The minutes of a Bethel Township Board of Supervisors meeting on December 14, 1999 confirm that the road through Lot 3 was to be used for emergency access only. Those minutes reflect the following exchange: “Mr. Brassier stated it was New Castle counties [sic] understanding this road was for emergency use only and was that correct. Mike George stated absolutely, it is one of those things we hope is never used.”¹⁰⁰ The Greens downplay this exchange as ambiguous because the minutes do not identify the road and lot being discussed. The minutes go on to state, however, that “Todd Breckridge stated we did not want to put it in, we did not intend to buy the land, and it was at the request of Bethel Township that we do this.”¹⁰¹ Independence Dogs purchased Lot 3 on August 26, 1999, three-and-a-half months before the December 14, 1999 Board of Supervisors meeting at which these comments were made. Moreover, Independence Dogs never purchased fee title ownership of any part of the Greens’ Property, including the land comprising the Easement.¹⁰² Accordingly, the remark about the purchase of land for an emergency access road at the Board of Supervisors meeting must be a reference to Lot 3. The evidence, therefore, belies the Greens’ contention that the Independence Dogs Plan provided for primary access to the PA Lands through Lot 3. Instead, that Plan provided for primary access to the PA Lands over the Easement. Thus, I reject the Greens’ argument that the drafting of the Independence Dogs Plan evidences an intent to abandon the Easement.

Nor does the drafting of the Alternate Plan, which proposed to utilize Lot 3 as the primary access to the Independence Towns Project, demonstrate any intent to abandon the Easement. To the contrary, it was the Alternate Plan that was abandoned, as the Templins decided before the end of 2007 that the cost of using Lot 3 as the primary access to the Independence Towns Project was too great. Furthermore, the Alternate Plan utilizes the entire Easement as a secondary access to the Independence Towns Project, thereby negating any intent by the Templins to abandon the Easement.¹⁰³ Because, the Greens submitted no evidence of any other statements or acts allegedly showing an intent on the part of the Templins or their predecessors to abandon the Easement, I find that they have failed to prove that any portion of the Easement has been abandoned.

The Greens also assert that the Easement has been extinguished by termination of purpose. An easement may be extinguished when the purpose for which it originally was created no longer exists and there is no reason for its continued existence.¹⁰⁴ The Greens contend that because Lot 3 can be used to access the Independence Towns Project, the Easement no longer serves its original purpose of providing access to the Owensby House. This contention is without merit. As previously discussed, the Easement was created to allow access to the PA Lands as they then existed and later might reasonably be developed. Not only does this purpose still exist, but the latter part of it is only now coming to fruition, more than thirty years after the Easement’s creation. The Templins’ intent to use the Easement to access the Independence Towns Project provides ample reason for the Easement’s continued existence. Even if the Templins planned to use Lot 3 as the primary access to the Project, as they temporarily did in the Alternate Plan, the Easement still would serve a purpose as a secondary access point. Accordingly, the Easement has not been extinguished by termination of purpose.

Finally, the Greens claim that, through the acquiescence of the Greens and the Templins and their predecessors, the Easement’s scope has been fixed so that it can be used only as a driveway. “Under the doctrine of acquiescence, a party may be precluded from asserting a claim where it has knowledge of an improper act by another, yet stands by without objection and allows the other party to act in a manner inconsistent with the claimant’s property rights.”¹⁰⁵ This doctrine has no application here. The purpose of the doctrine of acquiescence is to prevent a party who has allowed another party to do something for an extended period of time to come back later and challenge the once permitted action as a violation of his rights.¹⁰⁶ Acquiescence could apply to limit the Templins’ use of the Easement only if the Greens had used it in a manner inconsistent with the Templins’ rights. But, there is no evidence the Greens ever used the Easement in such a manner. Accordingly, I hold that the doctrine of acquiescence does not apply to this case and does not affect the Templins’ rights with respect to the Easement.¹⁰⁷

6. The Templins are entitled to a declaratory judgment, while the Greens’ requests for declaratory relief and a permanent injunction must be denied

Based on my findings that the Templins’ proposed use of the Easement as the primary access to the Independence Towns Project is a permissible one and that the Easement has not been lost through abandonment, termination of purpose, or acquiescence, I grant the Templins’ motion for a summary declaratory judgment that the Easement can be used as the primary access to the Independence Towns Project and deny the Greens’ motion for a declaratory judgment to the contrary. In addition, because the Greens have failed to prove that the Templins’ proposed use of the Easement is impermissible, they have not demonstrated actual success on the merits of their claims. As the Greens have failed to prove an essential element of their request for injunctive relief, I also deny their request for a permanent injunction. In light of this ruling, I need not dilate on the other two elements of a claim for permanent injunctive relief, irreparable harm and the balance of the equities, other than to note that the Greens failed to make a strong showing as to either of those elements.¹⁰⁸

D. The Templins’ Claim for a Prescriptive Easement

The Templins also seek summary judgment on their counterclaim for adverse possession of the portion of the driveway that lies outside the boundaries of the Easement. That counterclaim, however, confuses certain fundamental real property concepts and really seeks a prescriptive easement over the disputed portion of the driveway. To succeed in gaining title to property by adverse possession, one must possess the subject property in an open, notorious, hostile, and exclusive manner for a continuous twenty-year period.¹⁰⁹ To obtain a prescriptive easement, on the other hand, a claimant and those in privity with him only must use the property openly, notoriously, exclusively, and adversely to the rights of others for an uninterrupted period of twenty years.¹¹⁰ Because the Templins never possessed any portion of the driveway across the Greens’ Property and do not even argue that they have,¹¹¹ their claim actually is one for a prescriptive easement over the portion of the driveway that lies outside the Easement.

Prescriptive easements are generally disfavored in Delaware.112 Hence, a claimant has the burden of proving the elements needed to obtain a prescriptive easement by clear and convincing evidence.¹¹³ The Greens contend that, because the driveway was not used between 2001, when Independence Dogs ceased its operations on the PA Lands, and 2005, when the Templins began renting out the Owensby House, the Templins have failed to meet their burden of showing uninterrupted use of the driveway for the past twenty years. In response, the Templins do little more than argue, incorrectly, that it is the Greens’ burden to prove that the Templins and their predecessors have not used the driveway continuously.¹¹⁴ Having presented no evidence at all that the driveway was used between 2001 and 2005, let alone clear and convincing evidence, the Templins have failed to demonstrate that they, along with their predecessors in interest, used the driveway for an uninterrupted period of twenty years.¹¹⁵ Thus, the Templins have not demonstrated that they are entitled to either a prescriptive easement over or adverse possession of the portion of the driveway that lies outside the boundaries of the Easement.

III. CONCLUSION

For the foregoing reasons, I find that: (1) the Greens’ claims are not barred by the doctrine of laches; (2) the Templins’ proposed use of the Easement as the primary access to the Independence Towns Project is permissible; and (3) the Templins have not acquired fee simple title to or a prescriptive easement over the portion of the driveway that lies outside the boundaries of the Easement. Accordingly, I grant the Templins’ motion for a summary judgment declaring that the Easement can be used as the primary access to the Independence Towns Project and deny (1) the Templins’ motion as to their counterclaim for adverse possession or an easement by prescription and (2) the Greens’ motion for summary judgment on their claims for a declaratory judgment and a permanent injunction barring use of the Easement as the primary access to the Independence Towns Project.

Counsel for the Templins shall submit, on notice to opposing counsel, a proposed form of order implementing the rulings set forth in this Opinion within ten days of the date of the Opinion.

______________________________

¹ Compl. ¶ 1; App. to Pls.’ Answering Br. (“PAB App.”) Ex. 1. Similar abbreviations, i.e., POB, PRB, DOB, DAB, and DRB, are used for the parties’ respective opening, answering, and reply briefs and accompanying appendices.

² Compl. ¶ 2; DOB App. Ex. 15.

³ DOB App. Ex. 1.

⁴ DOB App. Ex. 3.

⁵ DOB App. Ex. 5. Language in a deed in the chain of title to the PA Lands dating back to 1814 provides “use . . . of a road (1 perch wide) leading . . . in a straight line . . . into the Wilmington Road.” DOB App. Ex. 19. A perch is an Old English measurement equaling 16.5 feet. POB App. Ex. 20. State Line Road is 16.5 feet wide and connects with Concord Pike, formerly known as Old Wilmington Road. POB App. Ex. 15; DOB App. Ex. 5. Despite these facts, a dispute exists as to the location of the “One Perch Road,” but this dispute is not material for purposes of the pending motions.

⁶ DOB App. Ex. 6 at 17.

⁷ DOB App. Ex. 9. Even though the Greens knew the driveway was not entirely within the Easement, they never objected to the Owensbys’ use of the driveway or asked the Owensbys to move the driveway into the Easement. DOB App. Ex. 6 at 19, Ex. 7 at 16. Much of the portion of the Easement that does not contain the driveway is covered by “large old growth trees.” Id.; POB App. Ex. 6; POB 4.

⁸ DOB App. Ex. 10.

⁹ Stackhouse v. Owensby, 1976 WL 8270, at *1 (Del. Ch. Mar. 18, 1976).

¹⁰ POB App. Ex. 13, Ex. 14.

¹¹ POB App. Ex. 14.

¹² POB App. Ex. 13, Ex. 16.

¹³POB App. Ex. 1 ¶ 8. For more background on the Greens’ purchase of their Property, see Stackhouse, 1976 WL 8270.

¹⁴ DOB App. Ex. 8.

¹⁵DOB App. Ex. 6 at 14, Ex. 7 at 13; POB App. Ex. 1 ¶ 10.

¹⁶ POB App. Ex. 1 ¶ 23.

¹⁷ DOB App. Ex. 26, Ex. 27.

¹⁸ DOB Ex. 6 at 7-8, Ex. 11.

¹⁹ DOB App. Ex. 11.

²⁰ DOB App. Ex. 16 ¶ 6.

²¹ DOB App. Ex. 12. The Independence Dogs Plan called for an expansion of the existing commercial kennel and the construction of an 8,000 square foot building that would contain twelve apartment units. Id.; DOB 6.

²² DOB App. Ex. 12.

²³ DOB App. Ex. 13. See also DOB App. Ex. 14 (Minutes from meeting of Bethel Township Board of Supervisors stating that the access road across Lot 3 “was for emergency use only.”).

Independence Dogs did not acquire ownership of Lot 3 until August 26, 1999. Docket Item (“D.I.”) 48.

²⁴ DOB App. Ex. 6 at 19, Ex. 7 at 18.

²⁵ POB App. Ex. 1 ¶ 19.

²⁶ DOB App. Ex. 15.

²⁷ POB App. Ex. 21.

²⁸ POB App. Ex. 1 ¶¶ 21-22.

²⁹ DOB App. Ex. 16.

³⁰ Id. ¶ 8.

³¹ Tr. 87.

³² DOB App. Ex. 24. DOB App. Ex. 25 depicts the Approved Plan.

³³ DOB App. Ex. 25.

³⁴ POB App. Ex. 48 at 2.

³⁵ The Templins considered the Alternate Plan until at least July 2007. POB App. Ex. 28.

³⁶ DOB App. Ex. 16 ¶ 9, Ex. 28.

³⁷ Id. ¶ 9.

³⁸ DOB App. Ex. 28. Both Owensby Drive and East Fulton Road appear to be roughly 20 feet in width. DOB App. Ex. 25.

³⁹ DOB App. Ex. 16 ¶ 6.

⁴⁰ Compare DOB App. Exs. 25 and 28.

⁴¹ POB App. Ex. 1 ¶ 24.

⁴² POB App. Ex. 1 ¶ 27.

⁴³ POB App. Ex. 31. The Greens’ counsel forwarded this letter to Bethel Township on November 9, 2007. POB App. Ex. 32.

⁴⁴ POB App. Ex. 33.

⁴⁵ POB App. Ex. 34.

⁴⁶ DOB App. Ex. 16 ¶ 4. According to Joel Templin’s affidavit, the Templins “made several offers to the Greens in an attempt to appease the Greens’ concerns relating to the access to the Independence Towns Property through the easement on the Green’s property, including but not limited to, offering (1) money and/or berms upwards of 4-feet high in exchange for widening the easement and (2) money in exchange for relocating the easement to save the trees and assist the engineer.”). Id.

⁴⁷ POB 12-13. This apparent factual despite is immaterial to the pending cross motions for summary judgment. Therefore, I need not attempt to resolve it here.

⁴⁸ The Greens signed verifications for their Complaint over seven months earlier on May 28, 2009. DAB App. Ex. 4, Ex. 5.

⁴⁹ Viking Pump, Inc. v. Century Indem. Co., 2009 WL 3297559, at *6 (Del. Ch. Oct. 14, 2009).

⁵⁰ Judah v. Del. Trust Co., 378 A.2d 624, 632 (Del. 1977).

⁵¹ Zurich Am. Ins. Co. v. St. Paul Surplus Lines, Inc., 2009 WL 4895120, at *4 (Del. Ch. Dec. 10, 2009) (quoting Ct. Ch. R. 56(h)).

⁵² The disputed issues of fact include whether the Delaware Department of Transportation regulations apply to the Templins’ proposed access road over the Easement and where the “One Perch Road” is located. Because none of the disputed issues are material to my decision on the parties’ cross motions for summary judgment, I accede to the parties’ wishes that I rule on the merits on their claims.

⁵³ Reid v. Spazio, 970 A.2d 176, 182 (Del. 2009) (citing 2 POMEROY’S EQUITY JURISPRUDENCE §§ 418-19 (5th ed. 1941); accord Adams v. Jankouskas, 452 A.2d 148, 157 (Del. 1982).

⁵⁴ Whittington v. Dragon Gp. L.L.C., 2010 WL 692584, at *5 (Del. Ch. Feb. 15, 2010), aff’d, 2010 WL 2484264 (Del. Jun 21, 2010) (citing Reid, 970 A.2d at 182-83; Homestore, Inc. v. Tafeen, 888 A.2d 204, 210 (Del. 2005)).

⁵⁵ Calagione v. City of Lewes Planning Comm’n, 2007 WL 4054668 (Del. Ch. Nov. 13, 2007).

⁵⁶ Id. at *1-3.

⁵⁷ Heathergreen Commons Condo. Ass’n v. Paul, 203 A.2d 636 (Del. Ch. Dec. 4, 1985).

⁵⁸ Id. at 639.

⁵⁹ Id. at 640.

⁶⁰ Id. at 640-41.

⁶¹ The Greens had observed such a scenario before, as the Independence Dogs Plan received final approval, but was never implemented.

⁶² POB App. Ex. 34.

⁶³ Id.

⁶⁴ Heathergreen Commons, 203 A.2d at 639-42.

⁶⁵ Beckrich Hldgs., LLC v. Bishop, 2005 WL 1413305, at *8 (Del. Ch. June 9, 2005) (citing 10 Del. C. § 6512).

⁶⁶ See Ayers v. Pave It, LLC, 2006 WL 2052377, at *1 (Del. Ch. July 11, 2006); Alpha Builders, Inc. v. Sullivan, 2004 WL 2694917, at *2 (Del. Ch. Nov. 5, 2004); Larsen v. Lobiondo, 1994 WL 30538, at *1 (Del. Ch. Jan. 13, 1994).

⁶⁷ Triton Const. Co. v. E. Shore Elec. Servs., Inc., 2009 WL 1387115, at *25 (Del. Ch. May 18, 2009) (citing Weichert Co. of Pa. v. Young, 2007 WL 4372823, at *2 (Del. Ch. Dec. 7, 2007)).

⁶⁸ Vandeleigh Indus., Inc. v. Storage P’rs of Kirkwood, LLC, 901 A.2d 91, 100-01 (Del. 2006) (citing RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.09). The issue in Vandeleigh was whether the plaintiff could enjoin the defendants’ construction of improvements on a portion of their property that was subject to an easement in the plaintiff’s favor. Section 4.9 of the Restatement provides that “[e]xcept as limited by the terms of the servitude determined under § 4.1, the holder of the servient estate is entitled to make any use of the servient estate that does not unreasonably interfere with enjoyment of the servitude.” Because the plaintiff was not using the easement currently and had no plans to use the easement in the future, the court denied the plaintiff’s request for a preliminary injunction, but noted that the defendants would have to remove whatever improvements they made if the plaintiff later developed a viable plan to use the easement. Id. at 101-02.

⁶⁹ RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.10 (2000).

⁷⁰ Walton v. Poplos, 85 A.2d 75, 77 (Del. Ch. 1951) (citing Williamson v. McMonagle, 83 A. 139, 139-40 (Del. Ch. 1912)); see also Vandeleigh 901 A.2d at 96-97.

⁷¹ Regen v. E. Fork Farms, LP, 2009 WL 3672788, at *2 (Tenn. Ct. App. Nov. 4, 2009).

⁷² See Stackhouse v. Owensby, 1976 WL 8270, at *1 (Del. Ch. Mar. 18, 1976).

⁷³ Maciey v. Woods, 154 A.2d 901, 904 (Del. 1959).

⁷⁴ PRB 9.

⁷⁵ See POB App. Ex. 16.

⁷⁶ DOB App. Ex. 29.

⁷⁷ DOB App. Ex. 5.

⁷⁸ The pool cannot even be seen from the Easement because of the fence.

⁷⁹ DOB App. Ex. 16 ¶ 6.

⁸⁰ RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.10 (2000).

⁸¹ See supra part II.C.1.b.

⁸² RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.10 cmt. f (2000).

⁸³ DOB App. Ex. 8, Ex. 26, Ex. 27.

⁸⁴ DOB App. Ex. 29.

⁸⁵ RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.10 cmt. f, illus. 14 (2000).

⁸⁶ Id. § 4.10 cmt. g.

⁸⁷ Weeks v. Wolf Creek Indus., Inc., 941 So.2d 263, 267, 273 (Ala. 2006).

⁸⁸ Id. at 272 (citing RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES § 4.10 cmt. f (2000)).

⁸⁹ Id.

⁹⁰ Regen v. E. Fork Farms, LP, 2009 WL 3672788, at *3-4 (Tenn. Ct. App. Nov. 4, 2009).

⁹¹ Id.

⁹² See also City of Charlotte v. BMJ of Charlotte, LLC, 675 S.E.2d 59, 71 (N.C. Ct. App. 2009) (“Defendants cite no cases, and we find none, wherein a mere increase in traffic volume over an easement results in misuse or overburdening.”); Downing House Realty v. Hampe, 497 A.2d 862, 865 (N.H. 1985) (“If the change of a use is a normal development from conditions existing at the time of the grant, such as an increased volume of traffic, the enlargement of a use is not considered to burden unreasonably the servient estate.”).

⁹³ Leffingwell Ranch, Inc. v. Cieri, 916 P.2d 751 (Mont. 1996).

⁹⁴ Id. at 758.

⁹⁵ Id. at 757.

⁹⁶ Id. at 757-58.

⁹⁷ Acierno v. Goldstein, 2005 WL 3111993, at *9 (Del. Ch. Nov. 16, 2005) (citing Smith v. Smith, 1990 WL 54919, at *4 (Del. Ch. Apr. 17, 1990)).

⁹⁸ Id.

⁹⁹ DOB App. Ex. 13.

¹⁰⁰ DOB App. Ex. 14.

¹⁰¹ Id. (emphasis added).

¹⁰² D.I. 48.

¹⁰³ POB App. Ex. 27.

¹⁰⁴ Edgell v. Divver, 402 A.2d 395, 397 (Del. Ch. 1979).

¹⁰⁵ Brandywine Dev. Gp., L.L.C. v. Alpha Trust, 2003 WL 241727, at *4 (Del. Ch. Jan. 30, 2003).

¹⁰⁶ See Papaioanu v. Comm’rs of Rehoboth, 186 A.2d 745, 749-50 (Del. Ch. 1962).

¹⁰⁷ The Greens again attempt to analogize this situation to the Leffingwell Ranch case, in part due to language in that case that says “where the grant or reservation of an easement is general in its terms, [] an exercise of the right, with the acquiescence and consent of both parties, in a particular course or manner, fixes the right and limits it to that particular course or manner.” Leffingwell Ranch, Inc. v. Cieri, 916 P.2d 751, 757 (Mont. 1996). The Montana Supreme Court did not base the Leffingwell Ranch decision on the doctrine of acquiescence, so this language is only dicta. In any event, I previously found Leffingwell Ranch distinguishable from this action, supra part II.C.4, and, moreover, to the extent Leffingwell Ranch did rely on acquiescence, it appears to conflict with Delaware law regarding acquiescence.

¹⁰⁸ As to irreparable harm, because the Templins’ proposed use of the Easement is reasonable under the four factor test and does not impinge on the Greens’ Property to any great degree, this use will not cause irreparable harm to the Greens. As for the balance of the equities, the Greens’ preferred alternative to the use of the Easement as primary access to the Independence Towns Project, which would require cars entering the new development on the PA Lands to drive within 60 feet of the front of their house on Owensby Drive, actually would necessitate cars driving closer to the Greens’ house than if they used the Easement. Accordingly, the harm alleged by the Greens is not very substantial. For their part, the Templins have shown that the potential harm to them in terms of additional costs already incurred due to the filing of this proceeding and the potential loss of a buyer if an injunction were granted, even if arguably self-inflicted by their decision not to file a declaratory judgment action at an earlier time, outweigh or, at a minimum, counterbalance the harm claimed by the Greens.

¹⁰⁹ Conaway v. Hawkins, 2010 WL 403313, at *2 (Del. Ch. Feb. 4, 2010).

¹¹⁰ Dewey Beach Lions Club, Inc. v. Longanecker, 905 A.2d 128, 134 (Del. Ch. 2006).

¹¹¹ See DOB 26 (“The Templins, and their predecessors in interest, openly and notoriously used the portion of the driveway outside of the easement for over 20 years.”) (emphasis added).

¹¹² Dewey Beach Lions Club, 905 A.2d at 134 (citing Anolick v. Holy Trinity Greek Orthodox Church, 787 A.2d 732, 740 (Del. Ch. 2001)).

¹¹³ Dewey Beach Lions Club, 905 A.2d at 134; Lickle v. Frank W. Diver, Inc., 238 A.2d 326, 329 (Del. 1968).

¹¹⁴ DRB 11. See Dewey Beach Lions Club, 905 A.2d at 134.

¹¹⁵ Even if I credited the Templins’ unsubstantiated assertion that the driveway was used occasionally between 2001 and 2005, this minimal use would not be sufficient to establish open and notorious use of the driveway by clear and convincing evidence. See Dewey Beach Lions Club, 905 A.2d at 135 (citing 25 AM. JUR. 2D Easements and Licenses § 53 (2004)) (“The use of a prescriptive easement must be so open, visible, and apparent that it gives the owner of the servient tenement knowledge and full opportunity to assert his or her rights.”). There also would be disputed issues of fact as to whether the use made of the driveway by the Templins and their predecessors was exclusive and adverse to the rights of the Greens.