Although it includes many of the oldest rules in our legal tradition, real property law is not immune to modernization and to the greater trend toward legal constructs that better reflect practical human experience than their formalistic forbearers. The Restatement (Third) of Property largely embodies this trend and has been relied on by many state courts to jettison old rules that no longer make practical sense. In fact, I have written in this very journal about an example of the Restatement’s trend of modernization concerning easement relocation. Although this trend proceeds at a forward march, there nevertheless remain vestiges of real property law’s ancient formalism. In keeping with the Restatement’s pragmatic approach, however, practitioners should not be intimidated by a formalistic doctrine’s ancient pedigree in advocating for its abolition, or exceptions to it, when common sense supports that outcome. The doctrine of overloading of an easement provides a prime example of this principle.
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