Although land use is very common in the United States, sometimes property planning makes the use of the land inefficient. As such, property law has come up with restrictions and uses for the land to help utilize the land more efficiently. One of these principles includes Easements.

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

The following case discusses how to determine if a party has an easement or just a license.

Express Easement

Millbrook Hunt, Inc. v. Smith

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

Millbrrok Hunt is the plaintiff, arguing that there was an easement on the property. They won in trial court.


Is the agreement between the parties an easement or a revokable license of use?


“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.”


The agreement was an easement, affirmed.


The Hunt has previously obtained an agreement where they would have free access to the land for the purpose of hunting foxes. This lease would last for 75 years. Smith ended up purchasing the land and was opposed to hunting. Consequently, Smith wished to remove the Hunt from using the land. Afterwards, Smith planned on developing the land into a wildlife preserve.

The Hunt was not happy with the restriction and sued Smith saying that there was an easement on the land preventing Smith from kicking out the Hunt. Smith countered, arguing that the case should be dismissed because the agreement only provided a revokable license to the Hunt. Thus, Smith argues that the license was revoked and the Hunt should be excluded from using the land.


The essential difference between an easement and a license is that an easement is an interest in the land. Although that interest can be set to expire, the interest still remains. Here, the Hunt was granted an interest in the land for 75 years. In this grant, the owner of the land had the authority to “relocate” hunting trails. However, the owner did not have the authority to exclude the Hunt from the property. Consequently, Smith had both actual and constructive notice of the easement before the purchase and cannot deny the existence.

Notice that the easement involved here is an easement in gross.

Implied Easement by Preexisting Prior Use

Emanuel v. Hernandez

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

While Hunt focused on express easements, this case focuses on an implied easement by prior existing use.

Emanuel was a plaintiff who won in trial court. As such, the Hernandez family appeals.


When should the law impose an easement on an owner without their consent?


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

The trial court errored in granting summary judgment. There is no implied easement. Reversed.


Emanuel and Hernandez were two neighbors in Illinois. Once upon a time, their individual properties were combined into one property. However, around 1890, the property was split by the original owner and each property had been conveyed down to the present time.

The issue present here is that there was a shared driveway between the two properties. Most of the driveway was on the Hernandez side. Hernandez started to place railroad ties along the driveway where the property line was. Emanuel was frustrated by this because they would not be able to have access to the garage with a blocked driveway (the garage was too close to the property line to drive around the back). Thus, because of the extra expenses and lack of street parking, Emanuel sued saying that the driveway was an implied easement based on preexisting use. However, Hernandez countered, saying that Emanuel failed to establish all the elements of the preexisting use.


The court of appeals agreed with Hernandez. Here, Emanuel failed to establish the second element of an implied easement by preexisting use. The element requires the parties to look back in time to the moment when the severance of the property occurred. At that time, there needed to be some form of easement in existence. However, at the time of severance, there was no driveway constructed, there was not even an attached garage. Thus, the preexisting element cannot be satisfied, even if those needs are currently in existence.

Additional Notes

Notice that implied easements are harder to obtain because they are taken without consent of the servient owner.

Using the three elements outlined above:

  1. The first element is satisfied because there is evidence of severance of title by a common owner in 1890 (owner had two parcels and sold one parcel).
  2. However, the second element is not satisfied because in 1890, there was no evidence of a driveway, or even a garage for the home. As such, there is no continuous, apparent, or existing need for an easement.
  3. Although the court did not address the third element in depth, there was no necessity at the time of use for the same lack of evidence provided in the second element.

Why do these factors exist? To support the intent of the owner who severed. So, the point of the doctrine is to repair a mistake that occurred at the time of separation. As such, the factors are pretty limited to prevent use except in those rare circumstances.

Easement by Necessity

Berge v. State of Vermont

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

This case deals with an easement by necessity.

Berge is the plaintiff. He lost in trial court and appealed.


Does the fact that the plaintiff has access to the property by water bar the necessity easement claim?


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.

The easement is necessary, reversed and remanded.


In 1959, Davis subdivided her estate and conveyed most of it to the State of Vermont. However, about 38 acres were retained by Davis. These acres were backed up against a pond. Later, she sold that land to another individual who subdivided the land into 12 lots. Berge purchased two of those lots. However, the only road access to the lots was through a service road owned and maintained by the State. Berge complained when the state placed a gate at the road entrance, keeping him from accessing his lots.

As such, Berge filed suit, saying that there was an implied easement by necessity. However, the state countered (and the trial court accepted) that there was no necessity element present because Berg still had access to the property through public access to the pond.


The trial court errored in saying that because there was water access, then there is no need for an easement. However, this fails to consider that the precedent says “reasonably necessary” or “practical access.” Water entry is not practical because access cannot occur year round (ice is not considered a safe passage).

Additional Notes

Here the elements were satisfied.

First, there was severance of title by a common owner (Davis).

Second, there was necessity. Although the trial court said that the standard is “strict necessity,” that is not the standard. Instead,  on a case-by-case basis, the courts are to examine what is reasonable. Thus, the court follows the “reasonable necessity” standard. In other words, the court is looking for what is practical.

The policy reasons for the practical standard is so that landowners have good access to their land. There is a reasonable necessity for a car, instead of requiring access through a boat.

Prescriptive Easement

O’Dell v. Stegall

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

O’Dell is the plaintiff who won in trial court. Stegall appealed.


Was the use of the gravel road adverse and hostile resulting in a prescriptive easement?


Prescriptive easements follow the same elements of adverse possession:

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

West Virginia adopts a minority approach that adverse and hostile presumes consent requiring the plaintiff to prove that they did not have consent.


The use was not adverse and hostile. Reversed.


The plaintiff lives on a corner, one road is a public road and the other is a private gravel driveway. There is a driveway coming to the plaintiff’s property from both roads. Tucked behind the plaintiff’s property is the defendant, whose only access to their property is through the gravel road, which they have an easement to use (as long as they maintain the gravel road). Disputes arose between the two parties, resulting in the plaintiff filing this suit against all adjoining neighbors to say that the gravel road was a community easement by prescription.

All parties settled besides the defendant. At court, the evidence provided by the plaintiff to show the continued use of the property was that the home used to be a church and the gravel road gave access to a parking lot that was behind the home.


The court was pretty upset that no definition for adverse or hostile has been established before. As such, they define adverse and hostile as having no permission from the true owner of the property. Additionally, the court believes that, until shown otherwise, use of the land is done by consent. As such, the plaintiff is required to show that there was wrongful use of the land (adverse) without the consent of the owner.

Here, the plaintiff failed to name the true owner as a defendant. Additionally, all the evidence failed to show that possession was done without the consent of the owner. As such, the plaintiff failed to meet all the elements and the prescriptive easement does not exist.

Additional Notes

The takeaways:

  • The party requesting an easement must show the elements (they have the burden)
  • Although similar to adverse possession elements, it is trimmed down (taking out the exclusive requirement)

Irrevocable License

Kienzle v. Myers

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

Kienzle, the plaintiff’s, won at trial and were awarded costs. Myers’ counterclaim was dismissed. Myers then appealed.


Were the Kienzle’s estopped from denying the existence of an easement?


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.

An estoppel easement was created. Reversed.


The previous landowners of the properties in question were neighbors and good friends. When the city required both neighbors to attach their homes to the public sewage line, one would incur several costs. As such, the two came to an agreement that the sewage lines could be built on one property, to save the additional expenses to the other.

Time passed and new people moved into the property. The plaintiff’s began to threaten the blocking of the defendant’s pipe if they did not remove the pipe from their property. As such, the defendant’s argued that there was an estoppel easement because of the reliance on the previous owner.


The reliance here occurred at the cost of the defendant. There was a gentleman’s agreement that the land could be used, thus creating a license. The defendant’s then acted in good faith on that license. Consequently, they incurred costs to connect the lines and removed themselves from controlling their sewage lines. Additionally, the plaintiff’s previous owner knew that such reliance would occur. As such, the plaintiff’s are estopped from denying an easement and are prevented from blocking the sewage line.

Additional Notes

An important thing to note is that this easement came from an oral agreement. Nothing was written down which may have created an express easement. As such, an easement by estoppel (equitable estoppel) would be the only viable option for the Myers. The elements here were met:

  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. The pipes were expected to last 50 years. 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).

Marcus Cable are the defendant’s who won in trial but was reversed on appeal. This appeal followed.


Do television lines fall within the scope of the express easement at issue? In other words, what does the language in the express easement mean?


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 easement does not allow the installation of television lines. Affirmed.


In the 1930s, a company went through installing power lines so that neighborhoods can achieve power. As part of this effort, the company obtained an easement from the Curtises to install and disseminate electrical lines on the property.

A couple decades later, the company sold part of its interest to allow Marcus Cable to install television lines, but said that Marcus Cable was required to obtain their own easements if the other easements did not allow installation. Marcus Cable went ahead and installed on the Curtises’s old land, now owned by Krohn. Krohn was upset that the television lines were installed on the land without his permission. In defense, Marcus Cable referenced the easement.


Although easements allow for technological advancements, those technological advancements must be done within the scope of the intended easement. Here, the intended easement was for the dissemination of electricity for use of lighting and powering a home. The technological advancement of a television does not fit into the scope of that easement.

However, the dissent argues that a direct reading of the easement would permit the television cable lines to be installed. These are lines, which conduct electricity, for the purpose of powering an appliance within the home.

Additional Notes

The phrase the court is trying to interpret is that the easement gives a right to the “electric transmission or distribution line or system.” This was done in 1939.

Later, in 1991, Marcus Cable sought to instal the cable line.

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.

Finally, the reason why this is such a big deal is because the courts want to protect property and the right to exclude, more than they care about the right to use (no matter the benefit). Consequently, the easement holder will renegotiate for the added purpose of the easement.

Terminating Easements

Preseault v. United States

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

  1. Whether the transfer was a fee simple or an easement.
  2. Whether the easement allowed for recreation transportation in addition to rail transportation.
  3. Finally, whether the easement was abandoned when rail operations ceased.

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


Abandonment occurred here. Consequently, the plaintiff’s are entitled to just compensation for the taking.


A long time ago, the railroad obtained an agreement with property holders to use land for the purpose or railroad transportation. However, in 1975, operations ceased and the railroad removed the rails, switches, and nails for use elsewhere. Shortly thereafter, the legislature passed the General Right-To-Trails Program which turned existing rails into public hiking trails. As such, the land here began being traveled by many visitors.

The Preseaults were opposed to this use of the land and sought relief for an uncompensated taking.


Responding to the first question; yes, this was an easement. Second, the easement was used for only railroad application. However, even if the easement allowed other forms of transportation, the rail had abandoned the easement when it ceased operations. Although mere non-use was not enough to abandon the easement, the actions taken by the rail to remove materials and structure from the land was enough to show that the rail intended to abandon the easement.

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.
Additional Notes

Here, an easement is abandoned when there is no termination date and when the owner takes some action that is inconsistent with continued use.

In other words, the equation for abandonment follows: non-use + intent to abandon (actions that are inconsistent with continued use) = abandonment.


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.

Categories: 1L Spring, Property

Will Laursen

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