### IN THE SUPREME COURT, STATE OF WYOMING

20 2 1 WY 15

OCTOBER TERM , A.D. 2020

January 2 8 , 2021

SCOTT B. SMITHSON and ELENA A. MOROZOVA,

Appellants (Plaintiffs),

v.

FREDERICK G. LINDZEY and STEPHANIE D. LINDZEY,

App ellees (Defendants). S

- 20

- 0117

A

ppeal from the D istrict Court of Albany Coun t y Th e Ho nora ble Tori R.A. Kricken , Judge

Representing Appellan t s :
M it chell Edwards, Nicholas & Tangeman, LLC, Laramie

, W yoming

. Argument by

Mr. Edwards.

R epre senting App elle e s : David McCarthy, Da vid McCarthy, P.C.

, Rawlins, Wyoming. Argument by

Mr. McCarthy.

Befo re DAVI S, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

NOTICE: This opinion is subject to formal revi sion before pu blication in Paci fic Reporter T hi rd. Rea ders

are requested to notify the Cl erk of the Sup reme Court, Supreme Court Building, Cheyenne, Wyomin g 82002, of any typographical or other formal errors so that correction may be made befo re final pub lication in

th e permanent volum e.1 FOX

, Justice

.

[¶1] Frederick a nd Stephanie Li ndzey ’ s prede cessors conveyed the right to fish in the Little Laramie River to the predecessors of Scott Smithson and Elena Morozova (the Smithsons), who contend they continue to hold that right because it is a servitude appurtenant to the land. The Lindz ey s , owners o f the s er vient estate, disagree, and have placed fences and “ No Trespassing ” and “ No Fishing ” signs on the property line

. The

Smithsons filed suit for declaratory judgment affirming the right and for an injunction preventing the Lindzeys from interferin g with it

. On cross

- motions for summary judgment , the district court found in favor of the Lindzeys, declared any right to fish was a license that ended when the original grantees sold their interest in the land , and denied

in

junctive relief. W e re verse an d reman d

.

ISSUE

[¶2] Did the 1965 Warranty Deed grant fishing right s to the original grantees only , or did it grant a servitude appurtenant to the Smithson’s land?

FACTS

[¶3] T he Smithson s own land in Albany County

, between Millbrook Road and the

L ittle Laramie River. The northwest property line meanders ten feet from the river (see

F ig . 1)

. The Lin dzeys own the adja c ent tract which includes the river and ten feet of

bank on the Smithson side

.

Fig. 1 : The Smithson property2 [¶4] M ar garet May and Peggy Jo Foreman conveyed a portion of their land to Charles

and H anna Groathouse in 1965

. The warranty deed included this language:

The intention of thi s deed is that the westerly boundary

line of t h e tract hereby conveyed shall be 10 feet from the rig ht bank of the Little Laramie River and none of the rights grantors have in said River, except as hereinafter mentioned, are being c onveyed.

* * *

Granto rs specifically grant t o grantees fishing r igh ts along the right bank of the L ittle Laramie River ad jacent to the tract hereby conveyed but such rights shall not be

exclusive.

After several interim conveyances, Scot t Smit hson purchased t he property in 1996 and

convey ed it to himself and Elena Morozova in 2016. Each of the warranty deeds in the

Smithso ns’ chain of title state the conveyances include appurtenances thereto. In 1989, Peg gy Jo Foreman granted the Lindzeys their property

. Th at warranty deed provides the conveyance is “SUBJECT TO: reservations, restrictions, easements, agreements,

covenants and ri ghts of way of record and taxes for 1989 and subs equ ent years.”

[¶5] The Lindzeys informed the Smithsons that they would like to purchase the Smithson property if they offer ed it for sale

. When the Smithsons dec ided to sell, they

offered it to the Li ndzeys, but the parties could not agree on a price

. Soon after

, the Lindzeys installed a fence along the prope rty line with a “No Trespas s” sign facing the

Smithson s ’ bay window. The Lindzeys then installed additional posts along the property

line with “ No Fishing” and “No Trespassing ” signs.

[¶6] In April 2019, the Smithso ns filed suit against the Lindzeys

. The Smithsons asked

the district court to declare the fishing rights along the bank of the Litt le Laramie R iver

ad jacent to their property were appurt enant rights that benefit and run with the ir land, and encumber and burden the Lindzey property. T hey a lso asked the court to enjoin the Lindzeys from interfering with their ab ility t o exercis e and enjoy the fishing righ ts conferred by the 1965 deed

, and to order the Lindzeys to remove barricade fences and posts with “No Fishing” and “No Trespassing” signs

.

[¶7] T he parties filed cross

- motions for summary judgment , and t he district court

gran ted summary judgment to the Lindzeys

, declaring the deed “created o nly a revocable license or personal servitude in the 1965 grantees to fish alongside the Little Laramie River, and that said fishin g rights were not int ended to be transferabl e. Therefore

, s uch3 fishing rights ceased to exist when the Groathouses divested themselves of their interest in the Smithson Property.” T he district co urt denied the Smithsons’ claim s for

decl aratory judgment and for injunctive relief. The Smithsons appealed

. W e reverse and

remand for further proceedings consistent with this opinio n

.

STANDARD OF REVIEW

[¶8] S ummary judgment shall be granted if the re is no genuine issue as to any material

fact and the moving party is entitled to judg ment as a matter of law

. Seven Lakes Dev.

Co. , L.L.C. v. Maxson , 2006 WY 136, ¶ 7, 144 P.3d 1239, 1244 (Wyo. 2006) ; W.R.C.P. 56( a )

. We review summary judgment de novo, affor ding no deference to the district

court ’s ru ling, using the same materials and fo llow ing the same standards as the district

court . We examin e the record from the vantage point most fav orable to the party opposing the motion, giving that party the b enefi t of all favorable inferences which may fairly be drawn from the record. Gayhart T r. of Tiphany L. Gayhart Living Tr. dated Oct.
1, 2008 v. Corsi , 2020 WY 58, ¶ 11, 462 P.3d 904, 908 (Wy o. 2020); Pennaco Energy,

Inc. v. KD Co. LLC , 2015 WY 152, ¶ 14, 363 P.3d 18, 22 (Wyo. 2015)

.

DISCUSSION

[¶9] The dis trict court deter mined the 1965 warra nt y deed created a revocable license or personal servitude in the Groathouses, which the g rantors did no t intend to be

transferrable

, and therefore ended when the Groathous es sold the land

. The Smith sons claim the warranty deed created a profit, appurtenant to the land, which transferred to them automatically when they purchased their land. Before we const ru e the deed to

determine what type of interest it created, we summarize t he relevant privileges and

interests i n land

.

[¶10] “A license is a privilege to do certain acts of a temporary character on the land of

another which is revocable at the will of a licens or unless a definite time has been specified, or unless it is coupled with an interest.” Seven Lakes , 2006 WY 1 36, ¶ 11, 144 P.3d at 1245 (quoting Sammons v. Am

. Auto. Ass ’ n , 912 P.2d 1103, 1105 (Wyo. 1996) (citation omitted)). A license is not an intere st in the land, but means the possessor is not a trespasser when he e nters the grantor’s land. Seven Lak es , 2006 WY 136, ¶ 11, 144 P.3d at 1245 ( ci ting Sammons , 912 P.2d at 1105 ). A license may be created orally, in writing, or by implication “fr om the a cts of the parties, from their relations, and from usage and custom.” Sev en Lakes , 20 06 WY 136, ¶ 11, 14 4 P.3d at 1245 (quoting

Sammons , 912 P.2d at 1105 (citation omitted)). “ [ A ] license is revocable at will

. ” Seven

Lakes , 2006 WY 136, ¶ 14, 1 44 P.3d a t 1246 ( quo ting Restatement (Third) of Prop.: Servitudes § 2.2 cmt. h (200 0) ).

[¶11] A servitude is d istinct from a license because it is an interest in land. Seven Lakes

, 2006 WY 136, ¶ ¶ 11

- 12, 144 P.3d at 1245

- 46

. A servitude is normally irrevoca ble unles s4 “the right to revoke is expressly reserved and properly exercised.” Id. a t ¶ 14, 144 P.3d at

1246 ( quo ting Re statement (Third) of Prop.: Servitudes § 2.2 cmt. h). E asements and profits a prendre (profits) are servitudes

. Id. at ¶ 12, 1 44 P.3d at 1245; Restatement (Third) of Prop.: Servitudes § 1.1(2) . An easement enti tles the holder to the use or enjoyment of another’s prope rty. Seven Lakes , 2006 WY 136, ¶ 12, 144 P.3d at 1245 ( ci ting Hasvold v. Park Cnty. Sch. Dist. No. 6 , 2002 WY 65, ¶ 13, 45 P.3d 635, 638 (Wyo. 2002)). A profit is an “easement plus”: it allows the hold er to enter another’s land

and remo ve from it “the f ruits not yet carried away.” Seven Lakes , 2006 WY 136, ¶ 12

, 144 P.3d at 124 5 (citing Res tatement (Third) of Prop.: Servitudes § 1.2 cmt. e; 25 Am.

Jur. 2d Easements and Licenses § 3 (2004)). We ha ve held that hunting and fishing rights

in the land of another are profits. Seven La kes , 2006 WY 136, ¶ 20 , 144 P.3d at 1248 (citing 25 Am. Jur. 2d Easements and Licenses § 3; 28A C.J.S. Easements § 9;

L.S. Tellier, Annotation, Right Cr eated by Private Grant or Reservation to Hunt or Fish

on Another’s Land , 49 A.L.R.2d 1395 (1956) and citati ons therein); see also Restatement (Third) of Prop. : Servitudes § 1.2 Reporter’s Note: Hunting and Fishing Ri gh ts Are Profits

.

[¶12] “We interpret a war ranty deed lik e a contract from specific language of the deed, and begin by looking at the instrum ent itself.” Seven Lakes , 2006 WY 136, ¶ 10, 144 P.3d at 1245 (quoting Gilstrap v. June Eisele Warren Tr

. , 2005 WY 21, ¶ 12, 106 P.3d

85 8, 862 (Wyo. 2005) ( quotation marks and ci tation omitted) ). We look first at the terms

of th e deed, giving them their plain and ordinary meaning : “that meaning which the language would convey to reasonable persons at the time and plac e of its use.” Seven

Lakes , 2 006 WY 136 , ¶ 10, 144 P.3d at 124 5 (quoting Gilstrap , 2005 WY 21, ¶ 12, 106

P.3d at 862 ( alteration and quotation marks omitted) )

. When the terms are clear and unambiguous, this Court looks within the “four corners” o f the do cume n t to arrive at the intent of the pa r ties. Seven Lakes , 2006 WY 136, ¶ 10, 144 P.3d at 124 5 ( citing Gilstrap

, 2005 WY 21, ¶ 12, 106 P.3d at 862 )

. However, “ even if a contract is unambiguous, we can examine evidence of the circumstances surrou nding th e ex e cution of the deed to

arrive at the parties ’ intent.” Leeks Canyon R anch, LLC v. Callahan River Ranch, LLC

, 2014 WY 62, ¶ 14, 327 P.3d 732, 738 (Wyo. 2014) (quoting Ecosystem Res., L.C. v. Broadbent Land & Res., L.L.C. , 2007 WY 87, ¶ 10, 158 P.3d 685 , 68 8 (Wyo. 2007)). The parties agree t he language in the 1965 Warranty Deed is unambiguous, but they disagree on its meaning. Mere disagreement about the meaning of language in a deed

does not nec essarily mea n th a t the deed is ambiguous. Seven Lak es , 2006 WY 136, ¶ 16,

144 P.3d a t 1246

- 47 (citing Ne wman v. R AG Wyo. Land Co. , 2002 WY 132, ¶ 11, 53 P.3d 540, 544 (Wyo. 2002)).

[¶13] To determine what interest, if any, the Smithsons hold in the Lindzey trac t, we

must firs t determine whether the 1965 Warr ant y Deed created a license or a serv itude. Then, i f we determine the deed created a servitude, we must determine whether it is appurtenant to the land or was held in gross by the Groathouses. If it is appu rtenant, it

was conveyed to the Groathouse s ’ suc ces sors automatically

.5 I

. The 1965 War ranty Deed Granted a Profit, Not a License

[¶14] The parties’ intent is the critical factor in determining whether a license or

servitude arises from a conveyance

. Seven Lakes , 2006 WY 1 3 6, ¶ 17, 144 P.3d at 1247 ( ci tin g Baker v. Pike

, 2002 WY 3 4, ¶ 20 , 41 P.3 d 537, 54 3 (Wyo. 2002) )

. Intent can be identified by “ the manner in which the right was created, the nature of the right created, the duration of the right, the amount of consid erat i on given for the right, and whet her

there is a reservation o f power to re voke the right. ” Seven Lakes , 2006 WY 136, ¶ 17, 144 P.3d at 1247 (quoting Baker

, 2002 WY 34, ¶ 20, 41 P.3d at 543 ). In Seven Lakes , we concluded the hunting and fishing rights wer e profits appurtenant to the land , b ecause:

(1 ) the hunting and fishing “ privileges” were created in a warranty deed for property in the Woodedge area; (2) the grant created a legally enforceable right to enter and take

wildli fe and fish from the land of t he grantor; (3) no time was

spec ifi ed for the “privileges” to co ntinue or at which they would automatically cease; (4) consideration was paid for the warranty deed, including all items listed as “Restrictive and

Protective Cov enants”; and (5) the only imp l ied basis for revoking the “priv ile ges” was if they were “commer cialized. ”

2006 WY 136, ¶ 18, 144 P.3d at 1247

.

[¶15] Similarly, the fishing right in this case was created in a warranty deed conveying a

tract of land. The grant created a legally enforce able right to fish on the grant ors’ l and

. The right has no dur ation or expira tion. The grantees paid consideration for the right as part of the purchase of their land. And the grantor s reserved no power to revoke the right . We conclude the 1965 Warrant y De e d granted an irrevocable s ervitu de, not a

revocable licen se. The servitude is a profit because it is more than an easement, it is a right to enter the Lindzey property and take fish from the Little Laramie River.

[¶16] T he Lindzeys claim “ [ t ] he plain lang uage of the 1965 deed clearly a nd

una mbiguously stated the pri vilege to fish was p ersonal to and would end on the lives of

the [ Groathouses ] .” To support this interpretation, the Lindzeys c ontend the word “specifically” in the phrase “ G ran t ors specifically grant to grantees fishing rights

, ”

modifies the verb “grant” and not “fishing rights ,” and therefore the right must be specific to the grantees alone

. They contend that if the granto rs had intended otherwise,

th e de e d would say “ G rantors gran t to G rantees specifically fishing rights.” But “specifically” denotes the right granted , particularly when we consider the re st of the

document , which co ntains a general denial in that “none of the right s gr a ntors h ave in said River, except as hereinafter mentioned, a re being conveyed.” The specific grant of fishing rights is the exception to that restriction.6 [¶17] The Lindzeys point to the fact that the deed states the fishing rights are not

e xclu s ive t o the grantees , suggesting that grantors’ retention of the right to fish indicated an intent to grant only a license. We conclude that grantors’ retention of the right to fish indicates only that they intended t o ex e rcise their right to fish in the Little Laramie River along with grantees

. See The Law of Easements & Licenses in Land § 1:16 , Westlaw (dat abase updated November 2020) (“ [P] rofits may be created to be exclusive. This

means that the holder is the onl y o n e , inc luding the owner of the servient tenement, who may remove the subject of the profit. If the profit is nonexclusive, the servient owner may also remove the item that is the subject of the profit. ”)

.

I

I. The 1965 Warranty Deed Granted a Profit That I s App urt e n ant t o t he Land

[¶18] Servitudes are either appurtenant to the land or held in gross. Seven Lakes , 2006

WY 13 6, ¶ 13, 144 P.3d at 1246 (citing 2 5 Am. Jur. 2d Easements and Licenses §§ 3, 8, 9; 28A C.J.S. Easements §§ 9

- 11) ; Restatement (Third) of Prop.: S ervi t udes § 4.5

. “Appurtenant” means the rights or obligations of a servitude are tied to ownership or occupancy of a particular unit or parcel of land: the benefit may only be held by the

owner or occu pier of a particular unit or parcel

, and the burden o blig a tes t he owner or occupier of a particular unit or parcel. Restatement (Third) of Prop .: Servitudes § 1.5(1)

. “In gross” means the benefit or burden of a servitude is not tied to o wnership or occupancy of la nd. Id. at § 1.5(2); se e also Seven Lakes , 20 0 6 WY 136, ¶ 13, 144 P.3d at

124 6 ; Pokorny v. Salas , 2003 WY 159, ¶ 22, 81 P.3d 171, 177 (Wyo . 2003) (citing

Hasvold , 2002 WY 65, ¶¶ 13

- 14 , 45 P.3d at 638). A servitude “ will not be presumed to

be in gross when i t can fairly be construed to be appurtenant

. ” G ayhar t , 2020 WY 58, ¶ 20, 462 P.3d at 910 (quoting R.C.R., Inc. v. Rainbow Canyon, Inc. , 9 78 P.2d 581, 586 (Wyo. 1999)); Leeks Canyon , 20 14 WY 62, ¶ 34, 327 P.3d at 742 ( quo ting Hasvold , 2002

W Y 65, ¶ 14, 45 P.3d at 638)

.

[¶19] We begin ou r analysis for w hethe r a ser vitude is appurtenant or in gross by asking

who it benefits . A servitude is :

(a) ap purtenant to an interest in property if it s erves a purpose that would be more useful to a successor to a property in terest held by the original beneficiary of t he se rvitu de at the time the servitude was created than it would be to the original beneficiary after transfer of that interest to a succes sor;

(b) in gross if created in a person who held no proper ty that

benef ited from the servitude, or if it serves a p urpos e tha t would be more useful to the original beneficiary than it would

be to a successor to an interest in property held by the origina l beneficiary at the time the servitude was created[.]7 Hasvold , 2002 WY 65, ¶ 14, 45 P.3d at 638

- 39 (quoting Resta te ment (Thir d) of Prop.: Servitudes § 4.5(1)) ; see also Weber v. Johnston Fuel Liners, Inc. , 519 P .2d 972, 975 (Wyo. 1974) (citing 5 A.L.I. R estatement of th e Law, Property Servitudes § § 453 and

454 (an easement is appurtena nt when it is created to be nefit and does benefit the possessor of the land ; an easement is in gross when it is not created to benefit or does not

benefit t he possessor of a ny tract) ); Leeks Canyon

, 2014 WY 62, ¶ 13, 327 P. 3d at 737

- 38 (“If the easement benefits a particular parcel of la nd,

. . . the easement is said to be appurtenant to it. If the easement only benefits an individual personally, not as own er of a particula r parcel of land, the ease ment is termed in gross. ”) ( quoting Jon W. Bruce & James W. Ely, Jr., The Law of Eas ement s and Licenses in Land § 1:1, at 1

- 6 (20 1 4)).

[¶20] The profit was created to benefit and does benefit the possessor of the Smi thson

tract becau se the deed grants the rig ht to fish the bank of t he Little Laramie River “adjacent to the tract hereby convey ed.” The owners of the tract are benefitted by the use and enjoyment of the Lindzeys’ property for fishing, and by th e value the profit adds to

t heir own proper ty. Markstein v

. Country side I, L.L.C. , 2003 WY 122, ¶ 39, 77 P.3d 389,

401 (Wyo. 20 03)

. Once they no longer possessed the tract, the Groathouses could derive no benefit from the fishing right s, because they had no way to exercise it.

[¶21] W e have also i dentified several “badge s” or “earmarks” of an appurtenant

easement :

(1) that the ease ment was c reated to benefit a specific tract of land; (2) that the grant was for a perpetual right

- of

- way for ingress and egress; (3) that the grantee has t he right to i nspect
and maintain the easement; (4) that t he right is not limited to the possessor pe rson a lly; (5) that the grant expressly extends the right to the grantees, their heirs, executors, administrators, successors, assigns and legal representati ves; and (6) that the

easement docume nt does not contain any limitations on the transferability of t he e a semen t to future transfers of both the

dominant and servient estates.

Gayhart , 2020 WY 58, ¶ 21, 462 P.3d at 910 ( quo ting Hasvold

, 2002 WY 65, ¶ 21, 4 5 P.3d at 640); W eber , 519 P.2 d at 975.

[¶22] First, the profit was created to benefit the Smithson tra ct, a s dis cussed above. Second, while the language does not state the profit is perpetual, it does not have words limiting its duration. The third badge, the right to insp ect and maint ain, is not applicable

to this grant. Fourth, the right is not limite d to the G roathouses personally . The sixth badge is present

– the deed contains no limitations on the transferability of the easement

to future transfers o f both the domina nt and servi ent estate. Only t he fifth badg e is8 missing because t he 1965 Warranty Deed conta ins no words of succession such as “ heirs, executors, administrators, successors, assigns and legal representatives. ”

[¶23] The Lindzeys place great emphasi s on the abs ence of words of inheritance such as “heirs and assigns

, ” arguing that wit h out t hem, the warranty deed created only a life estate in the profit, which ended on the lives of the Groathouses and does not run with the

land. T hey attempt to distinguish Seven Lakes , where we found that a profit to hunt and fish appurte nant to th e land existed, in part

, because the deed in that case used the phrases “heirs and assigns” and “run [ s ] with the land

. ” We hav e considered words of successi on to find servitudes are appurtenant to the land in cases in addition to S even Lakes. See,

e.g. , Pokorny , 2003 WY 159, ¶¶ 24

- 26 , 81 P.3d at 178 ; R.C.R. , 978 P.2d at 586. And, as

the Lindzeys point out, we have weighed the absence of such wo rds to find that a

cove nant does not run with the land. In Mathisen v. Thunder Bas in C o al Co

., LLC , we said

, “ Although not dispositive in determining the intent of the parties, the use of words of succession suggests that the provision runs with the land, while omission of such

words may suggest the intent that the obligation is persona l ra t her t han appurtenant. ” 2007 WY 161, ¶ 15, 169 P.3d 61, 66 (Wyo. 2007) (addressing covenants, not easements or profits ) . T he presence or absenc e of words of succession is a non

- dispositive f actor w e weigh in conj u nctio n with the other relevant factors. See Restatement (Third) of Prop.: Servitudes § 2.2 cmt. d. (insistence on particular verbal formulas has disappeared fr om the mod ern law of servitudes , courts give effect to the intent of the parties by reading

ins t rumen t as whole). Considering our “ strong preference to construe an easement as appurtenant rather than in gross ,” Pokorny , 2003 WY 159, ¶ 23, 81 P.3d at 177 ( quoting

Baker

, 2002 WY 34, ¶ 12, 41 P.3d at 541 ) , and weighing the presen ce of almost all t he

“ b adges ” of appurtenance, we conclude the parties intended that the right to access the river and take fish from it is a profit appurtenant to the land.

[¶24] T he Lindzeys argue that Wyoming law imposes an additional requirement, “[e]xpli cit language stati ng a n inte ntion that the interest is irrevocable or ‘runs with the land’ is necessary to create an irrevocable and transferabl e property ri ght.” They rely on Jacobs Ranch Coal Co. v. Thunder Basin Coal Co., LLC , 2008 WY 101, ¶¶ 9

- 21, 191 P.3d 125, 129

- 33 (Wyo

. 2008 )

, for this pro position

. The issue i n Jacobs Ranch Coal Co.

was whether the obligation to pay a surface royalty was a covenant running w ith the land.

Id. at ¶ 2, 191 P.3d at 127. Covenants can be a form of servitude if the y “ r u n wit h the land,” but they are distinguished from easements and profits. Restatement (Third) of

Pr op.: Servitudes §§ 1.2, 1.3 . We have adopted a diffe rent test for establishing that a

covenant runs with the lan d:

the “party seeking to establish tha t a c ovena nt runs with the land must demonstrate: 1) the original covenant is

en forceable; 2 ) the parties to the original covenant intended

that the covenant run with the land; 3) the covenant touches9 and concerns the land; and 4) there is privity of estat e b e t ween the parties to the dispute.”

Jacobs Ranch Coal Co. , 2008 WY 101, ¶ 9, 191 P.3d at 129 ( quoting Mathisen

, 2007 WY 161, ¶ 14, 169 P.3d at 65

- 66 )

. In Jacobs Ranch Coal Co.

, we noted the absence of “language expressing the parties’ intent that the obl i gatio n was a covenant running with the land,” and held that th e obligation at issue did not run with the land. 2008 WY 101, ¶ 13 , 191 P.3d at 130 . But

, because we applied a different test than we do to easements

o r profits, we find no reason to apply th is hol d ing t o our analysis of whether the profit in

this cas e is appurtenant to the land.

[¶25] Finally, the Lindzeys argue that if the 1965 Warranty Deed did grant a servitude, it was personal to the Gro athouses , and could not have transferred automatically to the i r

suc cessors

. Wyoming has n ot adopted § 1.5(3) of the Restatement which recognize s a further distinction between servitudes (either appurtenant or in gross) that are personal t o their holder and those that are automati call y tran sferrable or “runnin g with the land.”

Restatem ent (Third) of Prop.: Servitudes § 1.5(3). In Wyoming, i f a servitude is

appurtenant, it is not transferable independently of the land, but is conveyed

auto matically when possession of the dominant prop e rty i s conveyed, even if not
mentioned in the docume nt of transfer. Gayhart , 2020 WY 58, ¶ 27, 462 P.3d at 911 (citing Box L Corp. v. Tet on C n ty. ex rel. Bd

. of C n ty. Comm’rs of Teton C n ty. , 2004 WY 75, ¶ 12, 92 P.3d 811, 815 (Wyo. 2004))

. Because w e ha v e det ermined the 1965

War ranty Deed granted a profit , appurtenant to the Smithson tract, the right to access to
fish in the Little Laramie River runs with the land and transferred automatically to the

Smithson s as successors of the Groathouses.

CON CLUS I

ON

[¶26] The court erred when it grant ed summary jud gment to the Lindzeys because the plain language of the deed created a profit , and nothing in the deed or context of the

transfer overcomes the presumption it is appurtenant to the Smithson tract

. T he

Sm iths o ns a re entitled to judgme nt on their claim for declaratory judgment and to
consideration of their claim for injunctive relief . We reverse and remand for further proceedings consistent with this opinion.