Easements give a non possessor of a piece of land to use the land for a variety of reasons. The most common reason is for a non possessor to pass through the land to their land. For instance, imagine that A has a 5 acre piece of land that is landlocked by other property owners and no private drive. In this instance, A would request an easement, which will give him the right to pass through others lands to access his land.

There are 5 difference kinds of easements:

  1. Prescriptive easement
  2. Implied easement by prior existing use
  3. Easement by necessity
  4. Express/Grant easement
  5. Easement by estoppel

Of these 5, an express easement is the only type that is is agreed between the parties involved. All the other easements are imposed by a matter of law without the permission of the owner.

There are a few more definitions to be aware of before continuing any further discussion:

  • Dominant tenement – the land benefited by the easement
  • Servient tenement – the land burdened by the easement
  • Dominant owner – the easement owner (owner of dominant tenement)
  • Servient owner the owner of the servient tenement
  • Appurtenant easement – easement owner uses the land (most applied)
  • Easement in gross – not connected to holder’s use, but is personal
  • Affirmative easement – allows holder of easement to use the land (most applied, e.g. “passing though”)
  • Negative easement – prevents servient from using land

Creating Easements

For are two ways an express easement may be allowed: by grant or by reservation. A grant easement is when the servient owner grants an easement to the dominant owner. A reservation easement is when the dominant owner conveys some land to another but reserves an easement for continued use.

An easement must be in writing that:

  1. Identifies the parties
  2. Describes the land parcels involved
  3. Describes the location of the easement on the servient land
  4. States the purposes of the easement

Express Easement

Millbrook Hunt, Inc. v. Smith

670 N.Y.S.2d 907 (Sup. Ct. App. D. 1998).

“An easement implies an interest in land ordinarily created by a grant, and is permanent in nature. A license does not imply an interest in land, but is a mere personal privilege to commit some act or series of acts on the land of another without possessing any estate therein.”

Implied Easement by Preexisting Prior Use

Emanuel v. Hernandez

728 N.E.2d 1249 (Ill. App. Ct. 2000).

The elements of an implied easement from preexisting use includes:

  1. Common ownership of both parcels, then a conveyance that separates that ownership (splitting property into two)
  2. Before the severance, the owner used part of the united parcel for the benefit of another part. The use was apparent and obvious, continuous, and permanent.
  3. The easement is necessary and beneficial to the person who received the split property.

In summary, the elements require:

  1. Severance of title by a common owner
  2. Apparent, existing, and continuous use of easement prior to severance
  3. Necessity at the time of severance

Easement by Necessity

Berge v. State of Vermont

915 A.2d 189 (Vt. 2006).

Easement by necessity requires:

  1. Severance of title to land in common ownership.
  2. Necessity for the easement at the time of severance. For instance, a landlocked parcel.

Prescriptive Easement

O’Dell v. Stegall

703 S.E.2d 561 (W.V. App 2010).

Prescriptive easements follow the same elements of adverse possession:

  1. Open and notorious
  2. Adverse and hostile
  3. Continuous
  4. For a statutory period.

Irrevocable License

Kienzle v. Myers

853 N.E.2d 1203 (Ohio App. 2006).

An estoppel easement or an irrevocable license occurs when:

  1. A landowner allows another to use the land
  2. The new user uses the land in good faith in that license by making improvements to the land at their cost
  3. the landowner reasonably knows that such reliance would occur.

Note that the easement lasts only as long as the anticipated reliance lasts. When that time expires, the easement also expires.

Interpreting Easements

How do we know what the language used in the creation of an easement means?

Marcus Cable Associates, L.P. v. Krohn

90 S.W.2d 697 (Tex. 2002).

Follow contracts law. When the language is unclear, use the general meaning and then apply that to the intention of the parties at the time the agreement was made.

The rule for how easements can be used as time passes:

  • Here, according to the Restatement Third of Property, the manner, frequency, and intensity can change over time as long as the original purpose of the easement does not change.

Terminating Easements

Preseault v. United States

100 F.3d 1525 (Fed. Cir. 1996).

Mere non-use does not abandon an easement. The servient user must do something more to indicate that they abandoned the use.

Although this case focuses on abandonment, there are several other ways an easement may be terminated:

  • Prescription – adversely reclaiming the land
  • Term – easement expires
  • Condemnation of the servient land
  • Estoppel – Reliance that the easement was terminated
  • Merger – New owner has possession of both easement and servient land
  • Misuse
  • Release – agreement to end the easement in writing.

The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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