IN THE SUPREME COURT, STATE OF WYOMING

2021 WY 15

 OCTOBER TERM, A.D. 2020

January 28, 2021

SCOTT B. SMITHSON and ELENA A. 

MOROZOVA,

Appellants

(Plaintiffs),

v.

FREDERICK G. LINDZEY and 

STEPHANIE D. LINDZEY,

Appellees

(Defendants).

S-20-0117

Appeal from the District Court of Albany County

The Honorable Tori R.A. Kricken, Judge

Representing Appellants:

Mitchell Edwards, Nicholas & Tangeman, LLC, Laramie, Wyoming. Argument by 

Mr. Edwards.

Representing Appellees:

David McCarthy, David McCarthy, P.C., Rawlins, Wyoming. Argument by 

Mr. McCarthy. 

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers 

are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 

82002, of any typographical or other formal errors so that correction may be made before final publication in

the permanent volume.
1

FOX, Justice.

[¶1] Frederick and Stephanie Lindzey’s predecessors 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 Lindzeys, owners of the servient 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 interfering 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 

injunctive relief. We reverse and remand. 

ISSUE

[¶2] Did the 1965 Warranty Deed grant fishing rights to the original grantees only, or 

did it grant a servitude appurtenant to the Smithson’s land?

FACTS

[¶3] The Smithsons own land in Albany County, between Millbrook Road and the

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

Fig. 1). The Lindzeys own the adjacent tract which includes the river and ten feet of 

bank on the Smithson side.

Fig. 1: The Smithson property
2

[¶4] Margaret May and Peggy Jo Foreman conveyed a portion of their land to Charles 

and Hanna Groathouse in 1965. The warranty deed included this language:

The intention of this deed is that the westerly boundary 

line of the tract hereby conveyed shall be 10 feet from the 

right bank of the Little Laramie River and none of the rights 

grantors have in said River, except as hereinafter mentioned, 

are being conveyed.

* * *

Grantors specifically grant to grantees fishing rights 

along the right bank of the Little Laramie River adjacent to 

the tract hereby conveyed but such rights shall not be 

exclusive. 

After several interim conveyances, Scott Smithson purchased the property in 1996 and 

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

Smithsons’ chain of title state the conveyances include appurtenances thereto. In 1989, 

Peggy Jo Foreman granted the Lindzeys their property. That warranty deed provides the 

conveyance is “SUBJECT TO: reservations, restrictions, easements, agreements, 

covenants and rights of way of record and taxes for 1989 and subsequent years.” 

[¶5] The Lindzeys informed the Smithsons that they would like to purchase the 

Smithson property if they offered it for sale. When the Smithsons decided to sell, they 

offered it to the Lindzeys, but the parties could not agree on a price. Soon after, the 

Lindzeys installed a fence along the property line with a “No Trespass” sign facing the 

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

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

[¶6] In April 2019, the Smithsons filed suit against the Lindzeys. The Smithsons asked 

the district court to declare the fishing rights along the bank of the Little Laramie River 

adjacent to their property were appurtenant rights that benefit and run with their land, and 

encumber and burden the Lindzey property. They also asked the court to enjoin the 

Lindzeys from interfering with their ability to exercise and enjoy the fishing rights

conferred by the 1965 deed, and to order the Lindzeys to remove barricade fences and 

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

[¶7] The parties filed cross-motions for summary judgment, and the district court 

granted summary judgment to the Lindzeys, declaring the deed “created only a revocable 

license or personal servitude in the 1965 grantees to fish alongside the Little Laramie

River, and that said fishing rights were not intended to be transferable. Therefore, such 
3

fishing rights ceased to exist when the Groathouses divested themselves of their interest 

in the Smithson Property.” The district court denied the Smithsons’ claims for 

declaratory judgment and for injunctive relief. The Smithsons appealed. We reverse and 

remand for further proceedings consistent with this opinion. 

STANDARD OF REVIEW

[¶8] Summary judgment shall be granted if there is no genuine issue as to any material 

fact and the moving party is entitled to judgment 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, affording no deference to the district 

court’s ruling, using the same materials and following the same standards as the district 

court. We examine the record from the vantage point most favorable to the party 

opposing the motion, giving that party the benefit of all favorable inferences which may 

fairly be drawn from the record. Gayhart Tr. of Tiphany L. Gayhart Living Tr. dated Oct. 

1, 2008 v. Corsi, 2020 WY 58, ¶ 11, 462 P.3d 904, 908 (Wyo. 2020); Pennaco Energy, 

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

DISCUSSION

[¶9] The district court determined the 1965 warranty deed created a revocable license 

or personal servitude in the Groathouses, which the grantors did not intend to be 

transferrable, and therefore ended when the Groathouses sold the land. The Smithsons 

claim the warranty deed created a profit, appurtenant to the land, which transferred to 

them automatically when they purchased their land. Before we construe the deed to 

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

interests in 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 licensor unless a definite time has been 

specified, or unless it is coupled with an interest.” Seven Lakes, 2006 WY 136, ¶ 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 interest in the land, but means the possessor is not 

a trespasser when he enters the grantor’s land. Seven Lakes, 2006 WY 136, ¶ 11, 144 

P.3d at 1245 (citing Sammons, 912 P.2d at 1105). A license may be created orally, in 

writing, or by implication “from the acts of the parties, from their relations, and from 

usage and custom.” Seven Lakes, 2006 WY 136, ¶ 11, 144 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, 144 P.3d at 1246 (quoting Restatement (Third) of Prop.: 

Servitudes § 2.2 cmt. h (2000)). 

[¶11] A servitude is distinct 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 irrevocable unless 
4

“the right to revoke is expressly reserved and properly exercised.” Id. at ¶ 14, 144 P.3d at

1246 (quoting Restatement (Third) of Prop.: Servitudes § 2.2 cmt. h). Easements and 

profits a prendre (profits) are servitudes. Id. at ¶ 12, 144 P.3d at 1245; Restatement 

(Third) of Prop.: Servitudes § 1.1(2). An easement entitles the holder to the use or 

enjoyment of another’s property. Seven Lakes, 2006 WY 136, ¶ 12, 144 P.3d at 1245 

(citing 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 holder to enter another’s land 

and remove from it “the fruits not yet carried away.” Seven Lakes, 2006 WY 136, ¶ 12, 

144 P.3d at 1245 (citing Restatement (Third) of Prop.: Servitudes § 1.2 cmt. e; 25 Am.

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

in the land of another are profits. Seven Lakes, 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 Created by Private Grant or Reservation to Hunt or Fish 

on Another’s Land, 49 A.L.R.2d 1395 (1956) and citations therein); see also Restatement 

(Third) of Prop.: Servitudes § 1.2 Reporter’s Note: Hunting and Fishing Rights Are 

Profits. 

[¶12] “We interpret a warranty deed like a contract from specific language of the deed, 

and begin by looking at the instrument 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 

858, 862 (Wyo. 2005) (quotation marks and citation omitted)). We look first at the terms 

of the deed, giving them their plain and ordinary meaning: “that meaning which the 

language would convey to reasonable persons at the time and place of its use.” Seven 

Lakes, 2006 WY 136, ¶ 10, 144 P.3d at 1245 (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” of the document to arrive at the 

intent of the parties. Seven Lakes, 2006 WY 136, ¶ 10, 144 P.3d at 1245 (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 surrounding the execution of the deed to 

arrive at the parties’ intent.” Leeks Canyon Ranch, 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, 688 (Wyo. 2007)). 

The parties agree the 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 necessarily mean that the deed is ambiguous. Seven Lakes, 2006 WY 136, ¶ 16, 

144 P.3d at 1246-47 (citing Newman v. RAG 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 tract, we 

must first determine whether the 1965 Warranty Deed created a license or a servitude. 

Then, if 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 appurtenant, it

was conveyed to the Groathouses’ successors automatically. 
5

I. The 1965 Warranty 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 136, ¶ 17, 144 P.3d at 1247 

(citing Baker v. Pike, 2002 WY 34, ¶ 20, 41 P.3d 537, 543 (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 consideration given for the right, and whether

there is a reservation of power to revoke 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 were profits appurtenant to the land, because:

(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 

wildlife and fish from the land of the grantor; (3) no time was 

specified for the “privileges” to continue or at which they 

would automatically cease; (4) consideration was paid for the 

warranty deed, including all items listed as “Restrictive and 

Protective Covenants”; and (5) the only implied basis for 

revoking the “privileges” was if they were “commercialized.”

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 enforceable right to fish on the grantors’ land. 

The right has no duration or expiration. The grantees paid consideration for the right as 

part of the purchase of their land. And the grantors reserved no power to revoke the 

right. We conclude the 1965 Warranty Deed granted an irrevocable servitude, not a

revocable license. 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] The Lindzeys claim “[t]he plain language of the 1965 deed clearly and 

unambiguously stated the privilege to fish was personal to and would end on the lives of 

the [Groathouses].” To support this interpretation, the Lindzeys contend the word

“specifically” in the phrase “Grantors 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 grantors had intended otherwise, 

the deed would say “Grantors grant to Grantees specifically fishing rights.” But

“specifically” denotes the right granted, particularly when we consider the rest of the 

document, which contains a general denial in that “none of the rights grantors have in 

said River, except as hereinafter mentioned, are 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 

exclusive to 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 to exercise their right to fish in the Little Laramie River 

along with grantees. See The Law of Easements & Licenses in Land § 1:16, Westlaw 

(database updated November 2020) (“[P]rofits may be created to be exclusive. This

means that the holder is the only one, including 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.”).

II. The 1965 Warranty Deed Granted a Profit That Is Appurtenant to the Land

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

WY 136, ¶ 13, 144 P.3d at 1246 (citing 25 Am. Jur. 2d Easements and Licenses §§ 3, 8, 

9; 28A C.J.S. Easements §§ 9-11); Restatement (Third) of Prop.: Servitudes § 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 occupier of a particular unit or parcel, and the burden obligates the 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 ownership or 

occupancy of land. Id. at § 1.5(2); see also Seven Lakes, 2006 WY 136, ¶ 13, 144 P.3d at 

1246; 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 it can fairly be construed to be appurtenant.” Gayhart, 2020 WY 58, 

¶ 20, 462 P.3d at 910 (quoting R.C.R., Inc. v. Rainbow Canyon, Inc., 978 P.2d 581, 586 

(Wyo. 1999)); Leeks Canyon, 2014 WY 62, ¶ 34, 327 P.3d at 742 (quoting Hasvold, 2002 

WY 65, ¶ 14, 45 P.3d at 638). 

[¶19] We begin our analysis for whether a servitude is appurtenant or in gross by asking 

who it benefits. A servitude is:

(a) appurtenant to an interest in property if it serves a purpose 

that would be more useful to a successor to a property interest 

held by the original beneficiary of the servitude at the time 

the servitude was created than it would be to the original 

beneficiary after transfer of that interest to a successor;

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

benefited from the servitude, or if it serves a purpose that 

would be more useful to the original beneficiary than it would 

be to a successor to an interest in property held by the original 

beneficiary at the time the servitude was created[.]
7

Hasvold, 2002 WY 65, ¶ 14, 45 P.3d at 638-39 (quoting Restatement (Third) 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. Restatement of the Law, Property Servitudes §§ 453 and 

454 (an easement is appurtenant when it is created to benefit and does benefit the 

possessor of the land; an easement is in gross when it is not created to benefit or does not 

benefit the possessor of any tract)); Leeks Canyon, 2014 WY 62, ¶ 13, 327 P.3d at 737-38 

(“If the easement benefits a particular parcel of land, . . . the easement is said to be 

appurtenant to it. If the easement only benefits an individual personally, not as owner of 

a particular parcel of land, the easement is termed in gross.”) (quoting Jon W. Bruce & 

James W. Ely, Jr., The Law of Easements and Licenses in Land § 1:1, at 1-6 (2014)).

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

tract because the deed grants the right to fish the bank of the Little Laramie River 

“adjacent to the tract hereby conveyed.” The owners of the tract are benefitted by the use 

and enjoyment of the Lindzeys’ property for fishing, and by the value the profit adds to 

their own property. Markstein v. Countryside I, L.L.C., 2003 WY 122, ¶ 39, 77 P.3d 389,

401 (Wyo. 2003). Once they no longer possessed the tract, the Groathouses could derive 

no benefit from the fishing rights, because they had no way to exercise it. 

[¶21] We have also identified several “badges” or “earmarks” of an appurtenant 

easement:

(1) that the easement was created 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 the right to inspect 

and maintain the easement; (4) that the right is not limited to 

the possessor personally; (5) that the grant expressly extends 

the right to the grantees, their heirs, executors, administrators, 

successors, assigns and legal representatives; and (6) that the 

easement document does not contain any limitations on the 

transferability of the easement to future transfers of both the 

dominant and servient estates.

Gayhart, 2020 WY 58, ¶ 21, 462 P.3d at 910 (quoting Hasvold, 2002 WY 65, ¶ 21, 45 

P.3d at 640); Weber, 519 P.2d at 975. 

[¶22] First, the profit was created to benefit the Smithson tract, as discussed 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 inspect and maintain, is not applicable 

to this grant. Fourth, the right is not limited to the Groathouses personally. The sixth 

badge is present – the deed contains no limitations on the transferability of the easement 

to future transfers of both the dominant and servient estate. Only the fifth badge is 
8

missing because the 1965 Warranty Deed contains no words of succession such as “heirs, 

executors, administrators, successors, assigns and legal representatives.” 

[¶23] The Lindzeys place great emphasis on the absence of words of inheritance such as 

“heirs and assigns,” arguing that without them, 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. They attempt to distinguish Seven Lakes, where we found that a profit to hunt and 

fish appurtenant to the land existed, in part, because the deed in that case used the phrases

“heirs and assigns” and “run[s] with the land.” We have considered words of succession

to find servitudes are appurtenant to the land in cases in addition to Seven 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 words to find that a 

covenant does not run with the land. In Mathisen v. Thunder Basin Coal 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 personal rather than appurtenant.” 

2007 WY 161, ¶ 15, 169 P.3d 61, 66 (Wyo. 2007) (addressing covenants, not easements 

or profits). The presence or absence of words of succession is a non-dispositive factor we 

weigh in conjunction with the other relevant factors. See Restatement (Third) of Prop.: 

Servitudes § 2.2 cmt. d. (insistence on particular verbal formulas has disappeared from 

the modern law of servitudes, courts give effect to the intent of the parties by reading

instrument 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 presence of almost all the 

“badges” 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] The Lindzeys argue that Wyoming law imposes an additional requirement, 

“[e]xplicit language stating an intention that the interest is irrevocable or ‘runs with the 

land’ is necessary to create an irrevocable and transferable property right.” 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 proposition. The issue in Jacobs Ranch Coal Co.

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

Id. at ¶ 2, 191 P.3d at 127. Covenants can be a form of servitude if they “run with the 

land,” but they are distinguished from easements and profits. Restatement (Third) of 

Prop.: Servitudes §§ 1.2, 1.3. We have adopted a different test for establishing that a 

covenant runs with the land:

the “party seeking to establish that a covenant runs with the 

land must demonstrate: 1) the original covenant is 

enforceable; 2) the parties to the original covenant intended 

that the covenant run with the land; 3) the covenant touches 
9

and concerns the land; and 4) there is privity of estate 

between 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 obligation was a covenant running with 

the land,” and held that the 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 

or profits, we find no reason to apply this holding to our analysis of whether the profit in 

this case 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 Groathouses, and could not have transferred automatically to their 

successors. Wyoming has not adopted § 1.5(3) of the Restatement which recognizes a 

further distinction between servitudes (either appurtenant or in gross) that are personal to 

their holder and those that are automatically transferrable or “running with the land.” 

Restatement (Third) of Prop.: Servitudes § 1.5(3). In Wyoming, if a servitude is 

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

automatically when possession of the dominant property is conveyed, even if not 

mentioned in the document of transfer. Gayhart, 2020 WY 58, ¶ 27, 462 P.3d at 911 

(citing Box L Corp. v. Teton Cnty. ex rel. Bd. of Cnty. Comm’rs of Teton Cnty., 2004 WY 

75, ¶ 12, 92 P.3d 811, 815 (Wyo. 2004)). Because we have determined the 1965 

Warranty 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 

Smithsons as successors of the Groathouses. 

CONCLUSION

[¶26] The court erred when it granted summary judgment 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. The 

Smithsons are entitled to judgment 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.