dissenting.
I cannot agree with the resolution of this case by the majority. It leaves the owners of a landlocked tract with no choice other than to pursue the statutory process for the creation of a private road. The majority chooses to evade the issues posed by the parties by concluding that an easement does not extend beyond the life of the estate it serves. In reaching that conclusion, the majority cites cases involving appurtenant easements, not easements in gross. Additional facts make these cases inapposite. Hoffman specifically found the estate was appurtenant and a building constructed on the easement twenty-four years before the action produced a presumption of extinguishment which could be rebutted, but was a question of fact for the jury. Leuthold is not applicable in the present instance because the easement was for years and by the terms of the lease expired on a specific date. Ludwig specifically stated that the defendants who were lessees of the same lessor as the plaintiffs had acquired an easement by prescription against the plaintiffs and their successors in interest. That court refused to decide if the easement should operate against the lessor if the property should ever revert to it. New-hoff affords interesting language regarding life estates and estates for years, but again it is applied to an appurtenant easement.
*415In this instance, the trial court found this easement to be an easement in gross, but ruled against its assignability. I would adopt the rule articulated in the Restatement of the Law of PROPERTY § 489 (1944), “Easements in gross, if of a commercial character, are alienable property interests.” I agree with the district court that this easement is an easement in gross, and it seems clearly to have been of a commercial nature. Not only that, but the parties spoke to as-signability in the document and said, “This Stipulation is binding upon the heirs, executors and assigns of the parties hereto.”
I quote only in part from the Comment to this section of the Restatement of the Law of Property. There, it is said:
Comment:
a. Rationale. Property interests are, in general, alienable. If a particular property interest is not alienable, this result must be due to some policy against the alienability of such an interest. The policy of the law has been, in general, in favor of a high degree of alienability of property interests. This policy arises from a belief that the social interest is promoted by the greater utilization of the subject matter of property resulting from the freedom of alienation of interests in it.
I would reverse the trial court and hold that this easement was alienable as a matter of law.