IV. Easements: Terminology & Creation

What are the primary recognized easements?

(1) a right-of-way, (2) a right of entry for any purpose relating to the dominant estate, (3) a right to the support of land and buildings, (4) a right of light and air, (5) a right to water, (6) a right to do some act that would otherwise amount to a nuisance, and (7) a right to place or keep something on the servient estate.

Implied Easement through Prescription

(adversely possessing an easement): Adverse possession of a right to use: entry, open and notorious, hostile, and continuous within a statutory period.

Distinction 1: Affirmative/Negative Easements

- Affirmative: gives the right to do something on someone else's land. A gives B an easement to cross A's land to reach the highway. B has an affirmative easement over A's land. - Negative: That prevent an owner from doing something on his/her land. A has trees on property, B has solar panels. A believes in solar panels, so A gives be an easement that he will not grow trees to block solar panels. B has negative easement.

Distinction 3: Appurtenant or in Gross

- Appurtenant: benefits the holder in the use of a particular piece of land. A gives b an easement to use A's land to get to the road - benefits B's estate in the use of B's land. If there is a dominant estate, it is Appurtenant. - In Gross (attached to the person): Benefits the holder of the easement personally. A railroad across A, B, C, and D's property. Railroad has a benefit in gross - benefits them personally, not their land, but the Railroad. An easement in gross only has a servient estate, there is no dominant estate.

Distinction 2: Dominant/Servient

- Dominant Estate: the estate that is benefited by the easement. - Servient Estate: the estate that is burdened by the easement.

What are the five types of servitudes?

1. Easements 2. Profits 3. Licenses 4. Equitable Servitudes 5. Real ($) Covenants c. The Restatement (Third) of Property, Servitudes: has merged the three interests -- easements, real covenants, and equitable servitudes-- into one, simply called the "servitude."

Two exceptions to rule that license is revocable

1. License coupled with an interest. 2. Can become irrevocable under the rules of estoppel.

1. Easements:

A non-possessory right to use someone else's land. Classic easement is crossing the other persons land. (runs with the land until you don't want it anymore).

5. Real ($) Covenants

A promise regarding the use of land that runs with the land. e.g., Neighbors, A and B have an agreement "must paint your house white" - (Enforceable at law) - harder to prove this one.

Easement Creation

An easement, being an interest in land, is within the Statute of Frauds and requires a written instrument signed by the party to be bound thereby. Under certain circumstances, may be created by implication or by prescription.

What is a Servitude?

An encumbrance consisting in a right to the limited use of a piece of land or other immovable property without the possession of it; a charge or burden on an estate for another's benefit <the easement by necessity is an equitable servitude>. • Servitudes include easements, irrevocable licenses, profits, and real covenants

What is an easement?

An interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose (such as to cross it for access to a public road). • The land benefiting from an easement is called the dominant estate; the land burdened by an easement is called the servient estate. Unlike a lease or license, an easement may last forever, but it does not give the holder the right to possess, take from, improve, or sell the land.

Van Sandt v. Royster - Implied easement from circumstances surrounding conveyance of land including?

Prior use of the land: Implication of easement will depend on the circumstances under which the conveyance of land was made, including the extent to which the manner of prior use was or might have been known by the parties; each party will be assumed to know about reasonably necessary uses which are apparent upon reasonably prudent investigations; an easement may be implied for a grantor or grantee on the basis of necessity alone.

3. Licenses (Holbrook v. Taylor)

Temporary permission, which can be revocable. (cannot be revoked after licensee has erected improvements on the land at considerable expense while relying on the license) - Holbrook v. Taylor

2. Profits:

Using someone's land to extract a resource.

4. Equitable Servitudes

a promise regarding the use of land that runs with the land. E.g., two neighbors, A and B have an agreement "must paint your house white" - if equitable promise will run with the land to future owners. (Enforceable in equity)

Express Easement Creation

a. Express through transfer: - Where one party conveys to another an easement. Most easements are express.

Implied Easement through Estoppel

i. Estoppel (Holbrook): Must start with a license. Detrimental Reliance (would be unjust to cut off reliance).

Servitude classifications?

i. Traditional servitude: 1) Easements 2) Covenants - a) Covenants enforceable at law (real covenants) - b) Enforceable in equity (equitable servitudes)

Implied Easement through Prior-Use

ii. Prior-Use: A owns property and regularly crosses own property on path to get to a road. Land is split between A and B and A sells to C. C wants to use the path like A did. - First: show that it has been used some way in the past (Quasi-Easement): - After severance - 4 Part test: 1. Common Owner 2. Continuous Use (has been used as quasi continuously) (breaks in the chain of continuous use?) 3. Apparent (provides notice/obvious that it is being used) 4. ( only Reasonably) Necessity (use is necessary (which actually means reasonably necessary) e.g., plumbing.

Implied Easement through (Real) Necessity (Othen v. Rosier)

property severed by owner, the cause of which is to create an access problem e.g., A owns property and divides it so that E cannot get out. If created landlocked at severance, an easement at necessity exists. Ends when no longer necessary. An easement can be created by implied reservation only when it is shown that there was a unity of ownership between the alleged dominant and servient estates, that the easement is a necessity and not a convenience, and that the necessity existed at the time the two estates were severed; an easement by prescription can only be acquired if the use of the easement was adverse.

Implied Easement Creation

through use (Not subject to the Statute of Frauds) 1. Estoppel 2. Prior-Use 3. (Real) Necessity 4. Prescription (adversely possessing an easement)

An easement distinguished from a license.

§ License: an oral or written permission given by the occupant of land allowing the license to do some act that otherwise would be a trespass. Very common e.g., plumber fixing a drain, guest coming to dinner. A license, however, is revocable whereas an easement is not.