¶ 48. {concurring). I agree with the majority opinion that AKG Real Estate cannot get court approval to relocate or terminate the express easement without the consent of the Kostermans, the owners of the dominant estate.
¶ 49. The majority opinion, ¶ 1, however, states its holding and applicable rule of law too broadly. The majority opinion declares its holding that "the owner of a servient estate cannot unilaterally relocate or terminate an express agreement," period.1 Not true! The majority opinion, ¶ 28, also overstates the applicable *30rule as "even if AKG did provide alternate public road access to the [dominant estate], the 1961 easement would remain in force, because an express easement continues regardless of whether the dominant estate needs the easement." (emphasis added).
¶ 50. Paragraph 29 in the majority opinion correctly explains that an express easement can terminate with the cessation of the particular purpose for which the easement was granted. Niedfeldt v. Evans, 272 Wis. 362, 364, 75 N.W.2d 307 (1956), clearly states this rule of law.
¶ 51. The court need not and should not decide whether to adopt Restatement (Third) of Property: Servitudes, § 4.8(3) or § 7.10(2). Neither provision applies in the instant case. Under § 4.8(3) the owner cannot make reasonable changes in the location of an easement if the change increases the burdens on the owner of the easement in its use and enjoyment.2 Here the servient owner proposes extinguishing, not modifying, the easement. In any event, the owners of the dominant estate would be burdened.
¶ 52. Under § 7.10(2) of the Restatement a court may modify the servitude (easement) to permit other uses because of "changed conditions." "Changed conditions" is a stringent standard, including the concept that the servitude no longer serves its intended purpose.3 Comment a. to § 7.10 explains that the doctrine is used sparingly:
Because servitudes create property interests that are generally valuable, courts apply the changed-conditions *31doctrine with caution. Of the many changed-conditions cases that have produced appellate decisions, few result in modification or termination of a servitude. The test is stringent: relief is granted only if the purpose of the servitude can no longer be accomplished. When servi-tudes are terminated under this rule, it is ordinarily clear that the continuance of the servitude would serve no useful purpose and would create unnecessary harm to the owner of the servient estate.4
¶ 53. Indeed, the owners of the dominant estate are persuasive in arguing that there were no changed conditions.5
¶ 54. Section 7.10(2) of the 1998 Restatement (Third) of Property: Servitudes is not as broad as the description of modifications of servitudes is in Professor French's 1982 law review article, entitled Toward a Modem Law of Servitudes: Reweaving the Ancient Strands, in 55 S. Cal. L. Rev. 1261 (often discussing injunctive relief), upon which the majority opinion relies.6
¶ 55. For the reasons set forth, I write separately. I join the concurring opinion of Justice ANN WALSH BRADLEY.
1 Restatement (Third) of Property: Servitudes § 4.8(3) (1998) is quoted at n.7 of the majority opinion.
See 2 Restatement (Third) of Property: Servitudes § 7.10 illus. 4 (1998).
2 Restatement (Third) of Property: Servitudes § 7.10 cmt. a. (1998)
The Kostermans point out that the "changed condition" upon which the court of appeals relied was a Department of Transportation regulation that arguably prohibits AKG from building a public road on the easement path. Yet this regulation was, according to the Kostermans, adopted five years before the 1961 easement.
Majority op., ¶ 20.