EASEMENTS

I. Intro
Easement- an interest in land that entitles the holder to use land owned or
possessed by another person
*most courts employ a rebuttable presumption that an ambiguous grant conveys an
easement

2 ways to classify easements

1. Affirmative or negative
2. Appurtenant or in gross
*so there are 4 basic types of easements: affirmative appurtenant, negative
appurtenant, affirmative in gross, negative in gross

A. Easement Appurtenant: one that benefits the owner of another parcel of land
*the benefitted parcel is called the D.E.
*the burdened parcel is called the S.E.
*passes with the D.E. whenever the D.E. is transferred to a new owner

B. Easement in gross: designed to deliver a personal benefit rather than to

benefit a landowner
*not attached to any parcel of land
*create a personal right to use the S.E., but that personal right may be
assigned if the parties so intended

C. Ambiguous grants- creates prefer it as easements appurtenant

-AFFIRMATIVE AND NEGATIVE: majority are affirmative

A. Affirmative: permits a person to use the S.E. in a specified manner

B. Negative: right to prevent specific uses of the S.E.; it confers no right to use
the S.E.
• 4 types of negative easements
1. For light
2. For air
3. For subjacent or lateral support
4. For continuing flow of articial streams
A. Conservation Easements: do not benefit any D.E. but are for the benefit of
conservation organizations
*are perpetual
*important issue is whether the substance of the easement is within the
scope of the statute
*typically permit easements for conservation of natural resources and historic
preservation

-profits a pendre: a profit is the right to take a natural resource or crop from the
land of another
*typical profits include the right to take minerals, timber, fish, game, or crops
*prefer in gross rather than appurtenant
*profits are freely assignable

-License: simply permission to enter the licesor’s land

*are revocable and binds only the licensor so long as it remains alive as opposed to
easements which cannot be revokes and continues to bind successors to the S.E.
who have notice of it
*courts construe ambiguous cases as creating a license instead of an easement
*are generally not assignable, but can be if the parties so intend
*can become irrevocable in 3 ways
1. intention
2. equitable estoppels: licensor grants a licesne on which the licensee reasonably
reliest o make substantial improvements to property, equity requires that the
licensor be stopped from revoking the license
3. Duration: reasonable expectation of parties satisfied
*an easement is of indefinite duration and can continue forever
-when a license is tied together with some other legally recognized interest the
license is irrevocable until that other interst is vindicated

CREATION OF EASEMENT
1. Easement by Grant: Most are created expressly by a deed or other grant
• Is subject to S.O.F. so requires a writing signed by the grantor
• Sometimes grantors sometimes convey land and, in the same deed
purport to “reserve” an easement in favor of the grantor or a 3rd party
i. In favor of grantor: is valid
ii. In favor of a 3rd party: majority treat as void. In those states its
necessary to creat two conveyances instead of 1
1. Easement by Estoppel
2. Easements by Implication
a. By prior use: principal factors are
1. Common owner
2. Reasonable necessity: for the owner of the D.E. to use and enjoy her
property. Can only be appurtenant
3. Continuous use: must be embodied in some permanent alteration
4. Intended continuation: price paid is a good indicator
5. Existing use: prior use must be existing at division
6. Apparent: its apparent if it could be detected, or even inferred, from a
reasonable inspection of the premise
a. From necessity
1. Common owner: in cases of multiple division an easement by necessity
is created at the moment a parcel is landlocked, and thus the
easement burdens the last parcel split off by the common owner – the
parcel that completed the landlocking
2. Necessity at severance: no prior use is needed
3. Duration: lasts as long as necessary
4. Location: the owner of the S.E. is permitted to select a reasonably
convenient location for the eaasiment
4.Easement by Prescription
1. adverse use under a claim of right
2. open and notorious
3. continuous
4. exclusive: does not mean that the adverse user was the only user, but
rather the adverse user’s claim does not depend on a like right in others

*2 types that can not be acquired are

1. negative easements
2. easements upon public land

Transfer of Easements
1. Easements Appurtenant: transferable
2. Easements in Gross: commercial are assignable, but noncommercial are not
unless the parties intend to permit assignment
3. Profits: always assignable

Scope of easements
1. The overriding principal in determining scope of an easement is to identify
and uphold the parties’ intentions
2. How easement was created
a. Easements by grant: express language controls
b. Easements by implication: depends on the reason for the implication
i. Prior use: construed same way as easements by grant
ii. Necessity: congruent with the necessity: no more, no less
a. Prescription: don’t assume anymore than what was intended by the
parties
1. Change in location of easement: if specified or agreed the location is
permanently fixed
2. Enlargement of the D.E.: easement cannot be used for the benefit of land
that is not D.E.
3. Division of an easement’s benefit: both are meant to prevent an uintended
increase in the burden on the D.E.
4. Use or interference by S.E. owner:

Termination of easements
1. Expiration
2. Merger
3. Actions of the easement holder
a. Release: generally must be written
b. Abandonment: easement holder manifests a clear and unequivocal
intention to abandon the easement. Mere nonuse will not suffice.
Abandonment is established by acts of the easement holder that clearly
 and unequivocally establish either a present intent to relinquish the
easement or a purpose inconsistent with its future existence
c. Alteration of D.E.: if the D.E. is altered so that the easement may no
longer be used the easement is extinguished
1. Cessation of purpose: if the s.e. is accidentally destroyed the easement is
extinguished. This usually requires that the easement be limited to use of a
specific building.
2. Actions of the S.E. holder
a. Intentional destruction of S.E.
b. Prescription
1. Changed circumstances in the surrounding area: does not generally apply to
easements