Easements, Profits and Licenses

B does not have a negative easement in gross because her easement

(i) allows B to enter upon A's land, i.e., is affirmative; and (ii) benefits B in her use and enjoyment of her own tract (the dominant tenement), i.e., is appurtenant.

A quasi easement will arise if, before the unitary tract is divided

, the use that exists on the "servient part" is reasonably necessary for the enjoyment of the "dominant part" and the parties intended the use to continue after division of the property.

Exclusive use is not required in order to acquire a prescriptive easement. Acquiring a prescriptive easement is analogous to acquiring property by adverse possession, except that the use need not be exclusive (i.e., the user may share the use with the owner or other easement claimants). The use must be:

1. Open and notorious; 2. Adverse; and 3. Continuous and uninterrupted for the statutory period.

Moreover, the claimant's use need not be under color of title. Color of title is

a document that purports to give title, but for reasons not apparent from its face, does not. Under certain circumstances, color of title may be needed to establish adverse possession, but it is not required to acquire a prescriptive easement.

It is called a "quasi easement" because

a landowner cannot hold an easement in her own land.

An oral attempt to create a perpetual easement results in the creation of

a license.

An easement is

a nonpossessory interest in land.

As nonpossessory interests in land, they do NOT create

a present or future right to possess and enjoy land. In contrast, a revocable privilege to enter land possessed by someone else for a specific purpose is a license, which is not an interest in land.

Adverse use means

a use made without the landowner's permission. Thus, if the public uses the land at the landowner's invitation, the public will NOT acquire a prescriptive easement.

Although easements in public lands cannot arise by prescription, the public may

acquire a prescriptive easement in private land as described above.

A person whose interest in land gives him the right to use someone else's land independent of his ownership or possession of his own tract holds

an easement in gross. An easement gives the holder the right to use a tract of land but no right to possess it. The land burdened by the easement right is called the servient tenement.

Any conveyance of an interest in land (including an easement interest) of a duration long enough to bring into play a particular state's Statute of Frauds (typically one year) must

be in writing to be enforceable.

B does not have a negative easement appurtenant. A negative easement does not grant to its holder the right to enter upon the servient tenement. Rather, it entitles the holder to

compel the possessor of the servient tenement to refrain from engaging in certain activity upon the servient tenement.

The land benefitted by the easement is called the

dominant tenement.

Someone whose interest in land benefits her in her possession of another tract of land holds an

easement appurtenant.

Condemnation of the servient estate will terminate an

easement. The easement holder may be entitled to compensation for the value lost.

Any conveyance of an interest in land (including an easement interest) of a duration long enough to bring into play a particular state's Statute of Frauds (typically one year) must be in writing to be

enforceable.

The effect of an easement holder's using the easement beyond its legal scope is that the servient owner may

enjoin the use.

Misuse of the interest will terminate a profit but not an easement. The holder of a profit has the right to

go upon another's land and take the soil or a substance of the soil (e.g., minerals, timber), but has no right to possess and enjoy the land.

An easement appurtenant, by contrast, benefits its holder in

her physical use or enjoyment of his own tract of land.

Yes, a long period of nonuse is sufficient to terminate an easement if

it is accompanied by other evidence of intent to abandon the easement (e.g., the easement holder erects a permanent structure blocking off the easement). However, a long period of nonuse on its own, even if it continues for the statutory period, is insufficient to constitute abandonment.

Unlike an easement, a license is not an interest in land, but is

merely a privilege to go upon another's land.

Acquiring an easement by prescription is analogous to acquiring title to property by adverse possession, except that the use

need NOT be exclusive (i.e., the user may share the use with the owner or other easement claimants). There is no requirement that the use be in good faith, and adverse use means the user does NOT have the owner's permission.

Although B's easement is appurtenant because it benefits her in the use and enjoyment of her own tract (the dominant tenement), it allows her to enter upon A's land (the servient tenement), and thus cannot be a

negative easement.

The holder of an easement has the right to use another's land, but has no right to

possess and enjoy the land.

The holder of an easement has the right to use another's land (i.e., the servient tenement), but has no right to

possess that land.

When the grant of a perpetual easement fails to satisfy the Statute of Frauds, the result is

that the grant creates a license.

A real covenant is

a nonpossessory interest in land. A real covenant is a written promise to use or not to use land in a certain manner, and does not confer a right to possess the land on the covenantee.

A profit is

a nonpossessory interest in land. The holder of a profit has the right to go upon another's land and take the soil or a substance of the soil (e.g., minerals, timber), but has no right to possess and enjoy the land.

The process for acquiring an easement by prescription is analogous to

acquiring title to property by adverse possession, except that the use need not be exclusive ,i.e., the user may share the use with the owner or other easement claimants.

If A and B own adjoining tracts of land, and A expressly grants to B the right to cross A's tract, B has an

affirmative easement appurtenant.

An oral attempt to create a perpetual easement does not result in the creation of a quasi easement, which is

an easement like use made of one part of a unitary tract of land to benefit another part.

In the case of an easement, the servient landowner's remedy is

an injunction of the excess use; the easement does not automatically terminate. In the case of a profit, however, the result of the surcharge is to extinguish the profit. Thus, the servient landowner need NOT enjoin the use or seek to terminate the profit. Moreover, the scope of the profit is NOT increased to meet the holder's needs.

If an easement is surcharged, the servient landowner's remedy is

an injunction, or possibly damages if the servient land has been harmed.

The Statute of Frauds requires that

any conveyance of an interest in land (including an easement interest) of duration greater than one year must be in writing to be enforceable.

If the holder is benefited in her possession of her own parcel of land (i.e., the dominant tenement), the easement is deemed

appurtenant.

If the holder is benefited in her physical use or enjoyment of another tract of land (the dominant tenement), the easement is deemed

appurtenant. B's use and enjoyment of her tract is benefited by the right to use A's tract for access (a right of way easement), and thus is an affirmative easement appurtenant.

Using the easement beyond its legal scope does not cause the easement to

automatically terminate or the scope of the easement to be increased to meet the holder's needs, nor can the servient landowner terminate the easement.

A person may NOT own an easement on her own land, and thus an easement is extinguished by

complete unity of ownership between the interests held in the easement and in the servient tenement. This occurs automatically, NOT because the parties expressly so provide. Furthermore, the easement will NOT be automatically revived if the tracts are later separated.

A release from the owner of the easement interest to the owner of the servient tenement is

effectively a conveyance and must satisfy the formalities required to create an easement.

If the holder of an easement uses it beyond its legal scope, the easement is NOT terminated. If the servient estate is surcharged, the servient owner may

enjoin the excess use and possibly sue for damages if the land has been harmed. However, such use does not automatically terminate the easement or give the servient owner a power of termination.

Affirmative easements entitle the holder to

enter upon the servient tenement and make an affirmative use of it (e.g., for access to and from the holder's land).

Note, however, that an oral release may become effective through

estoppel or when combined with nonuse of the interest for a long period of time. Nonetheless, mere nonuse, absent other evidence of intent to abandon it, is insufficient to terminate either interest.

If an easement is said to be surcharged, this does NOT mean the easement holder paid valuable consideration to the servient landowner, but rather that he

exceeded its legal scope.

Voluntary destruction of the servient estate (e.g., tearing down a building to erect a new one) will not terminate an easement. On the other hand, involuntary destruction of the servient estate (e.g., by fire or flood) will

extinguish the easement.

The holder of a profit has the right to

go upon another's land and take the soil or a substance of the soil (e.g., minerals, timber), but has no right to possess and enjoy the land.

If the holder is not benefitted in her possession of her own parcel, the easement is deemed

in gross.

An easement MAY be terminated by prescription. However, this is not accomplished through the easement holder's nonuse. Rather, one must

interfere with the easement through long continued possession and enjoyment of the servient estate in a way that would indicate to the public that no easement right existed. This is analogous to a landowner losing title to land by adverse possession.

If such a grant fails to satisfy the Statute of Frauds, the grant is NOT a nullity, but it instead creates a

license (i.e., a revocable privilege to go upon the land of another). It does NOT create a perpetual easement or an easement of limited duration.

In contrast, a landowner who grants a revocable privilege to use a portion of her land grants a

license. Unlike easements, licenses are generally revocable at the will of the licensor and are not interests in land.

The grant of an easement may NOT be enforced as a license at the grantor's option. Unlike an easement, a license is not an interest in land. It is

merely a privilege to go upon another's land, generally revocable at the will of the licensor. Thus, the grant of an easement is NOT always enforced as a license, but rather only when that grant is legally deficient under the Statute of Frauds, as explained above.

A license is not an interest in land; it is

merely a privilege to go upon another's land. Moreover, it need not benefit the licensee in her capacity as the owner of another tract of land.

A license is not a nonpossessory interest in land. A license is

merely a privilege to go upon another's land; it is not an interest in land.

As between profits and affirmative easements, only a profit is terminated when surcharged. The same termination rules that apply to easements apply to profits, except that

misuse of the interest (i.e., surcharge) will terminate a profit but not an easement.

Neither easements nor profits entitle the holder to possess and enjoy land. Both are

nonpossessory interests in land that is owned by someone else.

To acquire a prescriptive easement on property, the claimant's use must be

open and notorious, adverse, and continuous for the statutory period.

To terminate the easement, the nonuse must be combined with

other evidence of intent to abandon it.

If the holder of an easement uses it beyond its legal scope, the easement is surcharged. The holder of an easement has the right to use another's land (i.e., the servient tenement), but has no right to

possess the land.

The holder of an easement has the right to use another's land (the servient tenement), but has no right to

possess the land.

The holder of an easement has the right to use another's land (i.e., the servient tenement), but has no right to

possess the land.

Both profits and easements may arise by

prescription. Profits and easements may be created in the same way. Acquiring an interest by prescription is analogous to acquiring title to property by adverse possession.

An oral release of the interest, by itself, generally is insufficient to terminate either a

profit or an easement.

The release effectively serves as a

reconveyance of the interest to the landowner and thus must be executed with the same formalities required to create the interest. This often means the release must comply with the Statute of Frauds. Thus, an oral release generally is ineffective, and a written reconveyance generally is effective, for both interests.

Because exclusive use is NOT required to acquire an easement by prescription, a claimant may

share the use with the true owner or other members of the public. Therefore, the public may acquire a prescriptive easement in private land if members of the public use the land in a way that meets the requirements for prescription outlined above, even if other claimants also are making use of the same portion of the land.

Use of the easement beyond its legal scope will not terminate an easement. Instead, the easement is

surcharged, and the servient owner may sue to enjoin the use.

Generally, courts assume that the parties intended the easement to meet both present and future reasonable needs of the easement holder. If an easement holder uses the easement in a way that exceeds its legal scope, the easement is

surcharged. The servient landowner's remedy is an injunction of the excess use, and possibly damages if the servient land has been harmed.

As with easements, excessive use of a profit

surcharges the servient estate.

As with easements, excessive use of a profit

surcharges the servient estate. In the case of an easement, the servient landowner may enjoin the excess use, but the easement does not automatically terminate. In the case of a profit, however, the result of the surcharge is to extinguish the profit.

The effect of a profit holder's using the profit beyond its legal scope is

that the profit automatically terminates.

The grant of a perpetual easement may be enforced as a license when it fails to satisfy

the Statute of Frauds.

Generally, the release of an easement interest must satisfy

the Statute of Frauds. However, a release is only one way to terminate an easement.

If a party attempts to create an easement of indefinite duration orally, the result is

the creation of a license, i.e., a revocable privilege to go upon the land of another. Because a license is not an interest in land, the Statute of Frauds does not apply.

An oral attempt to create a perpetual easement does not result in the creation of a nonpossessory interest in land. Neither does it result in the creation of a nonfreehold estate, which is a type of possessory interest in land (e.g., a lease). As stated above, it results in

the creation of a license, which is not an interest in land.

If a party attempts to create such an easement orally, the result is

the creation of a license.

Yes, an easement is extinguished when

the easement and the servient tenement become owned by the same person, but only if the interest acquired is equal to or greater than the interest owned.

Nonuse of the easement for the statutory period will not terminate an easement. An easement can be extinguished by

the easement holder's physical act of abandonment (e.g., erection of a permanent structure over the easement). However, mere nonuse, even for a long period of time, is insufficient to constitute an abandonment of the easement.

If an easement is said to be surcharged, this means

the easement's legal scope was exceeded.

By contrast, an easement may be abandoned if

the holder manifests an intent never to use the easement again, evidenced by either physical acts or oral expressions of a desire to abandon accompanied by a long period of nonuse.

The servient landowner may enjoin the excess use and possibly sue for damages if

the land has been harmed. However, the easement does NOT terminate by operation of law, nor does such use give the servient owner a power of termination.

The owner of the servient tenement continues to have the right of full possession and enjoyment subject only to

the limitation that he cannot unreasonably interfere with the right of special use created in the easement holder.

Profits and easements may be terminated when

the owner of the interest releases it to the owner of the servient tenement.

If the holder of an easement uses it beyond its legal scope, the easement's scope is NOT increased. When the scope or location of an easement has been specified, these specifics will govern. However, when the scope of an easement has been set out only in general language, courts assume that

the parties intended a scope that would have foreseen reasonable changes in the use of the dominant estate. In either event, once an easement's legal scope has been determined, it will not be increased to meet the easement holder's needs. Thus, the servient owner may enjoin excess use as explained above.

Yes, the public may acquire a prescriptive easement in private land if

the public's use of the land is open and notorious, adverse, and continuous for the statutory period.

The holder of an easement has the right to use another's land (the servient tenement), but has no right to possess the land. The scope of an easement is determined by

the reasonable intent of the original parties.

The scope of an easement is determined by

the reasonable intent of the original parties, and when the scope has been specified, these specifics will govern. However, when an easement's scope has been set out only in general language, courts will interpret it to accommodate the holder's present and future reasonable needs. In either event, if the easement holder uses the easement in a way that exceeds its legal scope, the easement is surcharged.

The scope of an easement is determined by

the reasonable intent of the original parties. Generally, courts assume that the parties intended the easement to meet the easement holder's reasonable present and future needs. An easement is said to be surcharged if the holder uses it in a way that exceeds its legal scope.

By definition, an easement is

the right to use another's land for a special purpose.

An affirmative easement is

the right to use another's land for a specific purpose, and a profit is the right to take the soil or a substance of the soil (e.g., minerals, timber) from another's land. Implied in every profit is an easement entitling the holder to enter the servient land to remove the resource.

B does not have an affirmative easement in gross. The holder of an easement in gross has the right to

use another's land (the servient tenement) independent of her ownership or possession of any other tract of land; i.e., there is no dominant tenement. Although B's easement is affirmative because it allows her to make an affirmative use of A's land (for access), it also benefits B in her use and enjoyment of her own tract (the dominant tenement), and thus cannot be an easement in gross.

The holder of an affirmative easement has the right to

use another's land but has no right to possess and enjoy the land; that is, ownership of the land itself does not pass.

Easements, profits, covenants, and equitable servitudes all create a right to

use or restrict the use of land possessed by someone else.

By granting an affirmative easement across her land, a landowner grants a right to

use that portion of her land.