Pergament v. Loring Properties, Ltd.

OPINION

RUSSELL A. ANDERSON, Justice.

We are asked to determine when the mortgage exception to the merger doctrine prevents an easement from being extinguished. We conclude that at the time fee title to the dominant estate is united with fee title to the servient estate, the easement is extinguished with this exception: a mortgagee of the dominant estate will be entitled to the benefit of the easement should the mortgagee’s interest become possessory.

In this case, respondent, Brian A. Per-gament, brought an action in district court seeking declaratory judgment that he was *148entitled to an…