Chapter 6
Giving Others the Right to Use Your Land: Easements
In This Chapter
Understanding what an easement is
Discovering how to get an easement
Examining the rights and duties of the parties to an easement
Looking at how easements are transferred and ended
Owning land means you have the right to exclude others. It also means you have the right to transfer your rights to others. Not only can you transfer your entire ownership of the land, but you can also transfer some of your specific rights in the land while keeping other rights. For example, you could agree to give up your right to exclude your neighbor from driving back and forth over a driveway that passes over your land and onto his. The right you would give your neighbor is called an easement.
This chapter tells you all about easements, from how they’re created, transferred, divided, and terminated to the rules regulating the relationship between the parties involved.
Grasping the Basics of Easements
An easement is a right a landowner intentionally or unintentionally gives to another to use or to control the use of her land in some way, without possessing it (which is why it’s often described as a nonpossessory interest in land).
Easements, along with covenants (see Chapter 5), are known as servitudes. A servitude is a general term for nonpossessory legal rights in another person’s land. The land that is subject to an easement is called the servient tenement or servient estate; the owner may be called the servient tenant. The owner of the easement may be called the dominant tenant. If the easement serves other land in some way, the benefited land is called the dominant tenement.
Easements always burden some land, so there’s always a servient tenement. But easements might not benefit any dominant tenement; they may simply benefit a person. Such an easement is called an easement in gross.
Check out the next sections, which explore the attributes of easements and reveal how to differentiate easements from licenses and covenants.
Distinguishing affirmative and negative easements
Most easements are affirmative easements, meaning they give a nonowner the right to use the owner’s land in some way. Here are a few examples of affirmative easements:
The right to cross the owner’s land to get to and from neighboring property (often called a right-of-way)
The right to install and maintain power lines, water pipes, and sewage systems on and under the owner’s land
The right to hunt, fish, or use recreational facilities on the owner’s land
Parties may also create negative easements, which give the easement holder the right to restrain or control the use of the owner’s land in some way. Traditionally, only the following types of negative easements were enforceable:
To restrain development of the owner’s property in order to preserve the easement holder’s access to light and air on his nearby property
To restrain development of property to preserve the easement holder’s view (according to more recent cases)
To restrain development of the owner’s property in order to preserve subjacent or lateral support for the easement holder’s property so that it doesn’t subside
To maintain the flow of artificial streams
Courts today may also recognize and enforce other types of negative easements that they haven’t traditionally recognized. For example, by judicial decision and state statutes, states now generally recognize and enforce conservation easements, a particular kind of negative easement that limits development to preserve the land. See the nearby sidebar for details.
Describing profits
A profit, or more impressively, a profit à prendre, is an easement not just to use the land but to remove natural resources that are part of the land. Easements to remove oil, gas, and timber are profits. Because removing such resources requires access to the surface of the land, whenever someone has a profit, he also has an accompanying easement to use the surface of the land as reasonably necessary to remove the natural resources that are the subject of his profit. Because profits are just a type of easement, they’re generally subject to the same rules as easements.
Telling easements apart from licenses
By definition, an easement is an interest in land that lasts either indefinitely or for some specified period of time. A license, on the other hand, is permission to use land that can be revoked at any time.
Because both easements and licenses involve the use of another person’s land, they can look similar. If the parties’ agreement doesn’t clearly specify whether the landowner can revoke permission or whether the grant is durable, a court has to figure out whether they intended to create an easement or a license, which determines whether the landowner can revoke permission.
Courts typically consider the following kinds of evidence to decide whether an agreement allowing one party to use another’s land is a durable easement or a revocable license:
Indications that the grant was to last permanently or for a specific time: If the parties intended the grant to be permanent or for a specific time, the grant is an easement by definition.
Designations of the area that the grantee can use: Because a license is revocable at will, the licensor may not be specific about the area subject to the license. In contrast, because an easement is an interest in land, the statute of frauds may require some specification of the land subject to the easement. Even if it doesn’t, the grantor of an easement is more likely to be specific about the grantee’s rights, because the grantor can’t just change her mind if she’s unhappy with what the grantee does.
The right to make improvements: If the grantee has the right to improve the land somehow, the parties probably intended to create an easement. A license is more temporary and less substantial, so the licensee is unlikely to make investments in the licensor’s land, knowing that the licensor can revoke permission to use her land anytime.
Payment of consideration: When the grantee pays consideration for the grant, it’s more likely an easement. A grantee is less likely to pay for a license that can be revoked at any time than to pay for an easement that’s durable and can’t be taken away at will.
Knowing what’s an easement and what’s a covenant
Both easements and covenants can be affirmative or negative. However, easements are typically affirmative, giving the holder the right to use the servient land, whereas covenants are typically negative, limiting what the burdened party can do on her own land. Distinguishing affirmative easements from negative covenants is therefore pretty easy.
The real trick is distinguishing between negative easements and negative covenants. Both restrain the use of the land they burden for the benefit of someone else. In fact, as Chapter 5 mentions, the two can be so alike that courts sometimes call implied covenants “reciprocal negative easements.” Sometimes it doesn’t matter whether an interest is called a negative easement or a negative covenant. But sometimes it does, such as when deciding whether an oral agreement is enforceable. Consider the following to help decide whether an interest is an easement or covenant:
The parties’ expressed intent: The instrument creating the interest may expressly say that the interest is a covenant or an easement.
Breadth of the restraint: If the restraint prohibits a particular type of use on the entire burdened parcel of land, it’s probably a covenant. If the restraint prohibits only a specified use in a specified part of the land, it’s likely a negative easement.
Character of the restraint: The parties presumably intend the interest to be valid and enforceable. If the restraint wouldn’t be a permissible subject for a negative easement, then it should be construed as a covenant if possible.
Benefit in gross: An easement or covenant may be called in gross when the benefit of the restriction isn’t connected to any land but is personal to the benefited party. At least, many courts would say that a real covenant may not be in gross, whereas everyone would agree that easements may be in gross. So presuming that the parties intended a valid and enforceable interest, a restraint in gross should be construed as a negative easement if possible.
Oral restrictions: Though nonpossessory, easements are interests in land and are therefore subject to the statute of frauds, which requires written evidence of the interest. But some courts hold that covenants don’t have to comply with the statute of frauds, so an enforceable oral restriction would almost certainly have to be a covenant rather than a negative easement.
Creating Easements
An easement exists only if the parties do something to create one. Parties can create an easement in the following ways:
Expressly agreeing: The parties can simply agree to create an easement. The statute of frauds generally requires written evidence of the easement; however, an agreement to create an easement may be enforceable under the doctrines of estoppel and part performance despite noncompliance with the statute of frauds.
Implying an easement by their conduct: Three situations may imply the creation of an easement: prior use, necessity, and recording a subdivision plat.
Acquiring by prescription: A person acquires an easement over another’s land by using the land as if he had an easement for a long period of time. This is called an easement by prescription.
The following sections talk about all these ways of creating an enforceable easement.
Looking at express easements
Parties can create an easement by express agreement. The grantor, or servient tenant, can simply sign an easement agreement that conveys the easement to the grantee, the dominant tenant.
The parties also may create an easement in a deed that conveys the dominant or servient land. A deed may grant an easement to the grantee along with the land that it benefits, or the deed may reserve to the grantor an easement over the granted land.
Some courts say that a deed can’t reserve an easement for someone other than the grantor. So if the grantor wants to do so, he must reserve the easement for himself and then separately convey the reserved easement to the intended beneficiary.
Avoiding the statute of frauds
The statute of frauds applies to easements because they’re interests in land. As with other property interests, most state statutes of frauds don’t apply to short-term interests that last for less than a year. Otherwise, the statute of frauds requires written evidence of the creation of an easement, signed by the servient tenant — although today a deed signed by the grantor and reserving an easement for himself may satisfy the statute of frauds. The statute of frauds also requires that the writing define the servient estate or the location of the easement.
If there’s no such writing, the statute of frauds makes such an agreement unenforceable. However, there are two exceptions to this general rule, when the parties’ express agreement creating an easement will be enforced despite the absence of the required written evidence. The following sections take a closer look at those exceptions.
Enforcing an easement due to estoppel
If the servient tenant agrees to give the dominant tenant an easement but their agreement doesn’t comply with the statute of frauds, their agreement creates a license. The statute of frauds won’t allow the easement to be enforced, but the grantor nevertheless did agree to allow the grantee to use her land somehow. So the grantee has a license, which by definition the licensor can revoke at any time.
However, the licensor may be estopped from revoking the license in certain circumstances. If the licensor can’t revoke the license, then the license is essentially an easement. Sometimes courts call this an equitable easement or, confusingly, an irrevocable license.
Estoppel allows the dominant tenant to enforce an express easement agreement, despite noncompliance with the statute of frauds, when the following things are true:
The parties intended to create an easement. If the parties expressly agreed that the grant was a license, revocable at will, then the estoppel doctrine can’t transform the license into an easement.
The dominant tenant reasonably relied on the grant of an easement to his detriment. In other words, the dominant tenant somehow changed his position (by investing in the land or otherwise) in a way that he’ll suffer loss if the easement agreement isn’t enforced. Some courts say that the reliance must be expenditures on the servient land that are required in order to make use of the easement, such as improving a driveway over the servient land. Other courts say that any substantial reliance can support an estoppel claim.
The servient tenant reasonably should’ve foreseen that the dominant tenant would rely as he did. Even if the parties didn’t expressly say that the grant was irrevocable, if the servient tenant should’ve known that the dominant tenant was expecting an irrevocable interest and was going to invest in reliance on it, then once the dominant tenant does invest, the servient tenant is estopped from denying the existence of the easement.
Because the easement becomes enforceable to avoid harm resulting from the dominant tenant’s reliance, some authorities say that the easement by estoppel lasts only until the dominant tenant gets enough value out of the easement to justify his expenditures. After he’s got as much value from the easement as he put into the property in reliance, he no longer has an enforceable easement.
Enforcing an easement due to part performance
Part performance allows enforcement of an unwritten agreement on the theory that the parties have performed their agreement enough that a court can be confident they really did enter into an easement agreement, despite the absence of a writing.
The requirements of part performance essentially require alternative evidence that the parties did agree to create an easement. Here are the three categories of alternative evidence that may justify enforcement of the easement agreement, despite noncompliance with the statute of frauds:
Use of the easement: If the dominant tenant has actually been using the easement pursuant to the alleged easement agreement for some time without objection by the servient tenant, that tends to prove that the parties really did enter into an easement agreement.
Permanent, substantial improvements: If the dominant tenant makes improvements to the servient land, that’s persuasive evidence that the parties entered into an easement agreement. People don’t normally make improvements to other people’s land, but easement holders often do so in order to make better use their easements.
Payment of consideration: If the dominant tenant paid consideration to the servient tenant, that tends to prove that the parties really did have an easement agreement. However, there may be other explanations for apparent payment of consideration, so some courts have said that payment of consideration alone isn’t enough to excuse noncompliance with the statute of frauds; it must be combined with evidence of use or improvements.
The dominant tenant need not prove all three of these things to establish sufficient part performance to excuse noncompliance with the statute of frauds. Some courts have suggested that the payment of consideration alone can’t be sufficient part performance to excuse noncompliance with the statute of frauds. In evaluating part performance claims, consider whether the evidence in each of these categories persuasively indicates that the parties must have had an easement agreement or whether the evidence is consistent with an alternative explanation offered by the servient tenant. If the evidence isn’t sufficiently convincing, the part performance exception shouldn’t apply.
Don’t forget that part performance and estoppel are just exceptions to the statute of frauds. They allow enforcement of an easement agreement without the required written evidence of the agreement, but they don’t allow enforcement of an easement when the parties never agreed to create one. The easement-holder still must prove that the parties agreed to create an easement, even though the agreement wasn’t properly evidenced in writing. Don’t make the mistake of arguing that someone has an easement by part performance because he used an easement and made improvements, even though there’s no evidence that the servient tenant ever agreed to give him an easement.
Implying easements three ways
The parties’ actions may imply the intent to create an easement without any express agreement. There obviously isn’t written evidence of such easements that would satisfy the statute of frauds, but they’re enforceable anyway. The law recognizes an implied easement in three situations:
Prior use
Necessity
Subdivision plat
Implying an easement by prior use
An easement is implied by prior use when an owner has been using part of her land in an easement-like way to benefit another part of her land and then transfers one of those parts of her land to another person. The party claiming an easement implied by prior use must prove the following:
Severance of unity: One of the parties has divided her land and transferred part of it to the other party.
Prior use: Before and up to the time the grantor transferred part of the land to the grantee, the grantor had been using one of the parts to benefit the other part in a way that would be an easement if the parts were separately owned. For example, a water line passes under the land to a house on the land.
Sometimes an easement implied by prior use is called a quasi-easement because it arises only when the grantor has already been using part of her land to benefit another part in the way easements do. But before severance, you wouldn’t call that use an easement because an owner can’t have an easement on her own property.
Reasonably necessary use: The prior use was reasonably necessary to the enjoyment of the benefited part of the land. If the grantee claims an easement implied by prior use, the grantee generally only has to prove that the use was beneficial and convenient to his portion of the severed land. For example, if the grantor had been using a driveway across her land for access to the rear of a building that she subsequently sold to the grantee, use of the driveway over the grantor’s land is probably “reasonably necessary” for the grantee if it would cost a significant amount of money to build a new access driveway across his own land to a public street.
On the other hand, if the grantor claims to have reserved an easement implied by prior use over the grantee’s land, many courts require the easement to be strictly necessary for the use and enjoyment of the grantor’s retained land, not just beneficial and convenient. The grantor could’ve expressly reserved an easement in his deed to the grantee, and often his deed has warranted that he conveys title free from such easements, so courts are more reluctant to find an implied easement retained by the grantor.
Apparent use: At the time the grantor severed ownership and transferred part to the grantee, the prior use was apparent to the parties. An easement is implied in these circumstances because we figure that if enjoying one part of the land already depended on using another part of the land in some way, the parties surely meant for that use to continue, even though they didn’t think to say so in their deed. But if the parties weren’t even aware of the prior use, then they must not have intended to create an easement.
Even though this requirement is usually expressed as “apparent” use, the essential requirement is that the use was known to the parties, or at least reasonably discoverable. For example, underground water and sewer pipes might not seem “apparent” because they aren’t visible on the surface, but courts have held them to be easements implied by prior use when the plumbing indicated that there must be pipes passing somewhere underground and the parties could reasonably discover where they were located.
Continuous use: The prior use must have been continuous up until the time of severance rather than merely occasional or temporary. Only in these circumstances would we presume that the parties intended for the use to continue as an easement after severance.
Some courts don’t list continuous use as a requirement — the requirements that the use be apparent and reasonably necessary are enough to ensure that the parties must have intended for the use to continue.
If prior use does imply an easement, the dominant tenant owns an easement just as if the parties had expressly created the easement in the deed. The easement continues even if circumstances change and the easement is no longer reasonably necessary for use of the dominant tenement.
Implying an easement by necessity
Similar to an easement implied by prior use, an easement implied by necessity, or just easement by necessity, is created only when a landowner divides her land among two or more owners. But an easement by necessity arises only when that division of land causes a newly divided parcel of land to no longer have access to a public street, regardless of whether some of the owner’s land had previously been used to access that portion before the division of the land.
A person claiming an easement by necessity must prove the following:
Severance of unity: One of the parties has divided her land and transferred part of it to the other party.
Loss of access: The division of the land caused the claimant’s land, whether the parcel retained by the grantor or the parcel granted to the grantee, to no longer have a legal right of access to a public street.
Necessity: At the time the property was severed, the claimant’s land didn’t border a public street or have any other existing easement over private land to get to a public street. This is the only kind of “necessity” for which one may have an easement by necessity. Some courts hold that an easement is necessary even though there may be some other route to a public street, because the other route isn’t feasible or effective.
These circumstances imply that the grantor must have intended to grant or reserve an easement to pass across the other part of the subdivided land to get to a public street. But even if these conditions are met, some courts have held that the easement isn’t implied if the parties have otherwise indicated their intent not to create an easement — such as the grantee’s acknowledging in the purchase agreement that the land he’s buying doesn’t have access to a public street.
The owner of the servient land can specify the location of the easement by necessity over her land. But if she doesn’t do so within a reasonable time after severance, the dominant tenant can choose the access route over the servient land.
Unlike the easement implied by prior use, the easement by necessity lasts only as long as the necessity lasts. If the dominant tenant acquires an easement over some other land to access a public street, or if the government builds a public street over or adjacent to his land, the easement by necessity ends.
The easement by necessity doctrine is not a general rule that a person automatically has an easement over another person’s land if needed to get to a public street. The easement by necessity exists only over land that was divided — over either the grantor’s or the grantee’s land — and only when the division itself cut off access to a public street. One never has an easement by necessity over someone else’s land that wasn’t part of the subdivided land. If someone buys land that didn’t have access to a public street in the first place, he simply must buy easements as needed to get an access route to a public street — or wait for the government to build a public street adjoining his property.
Some states have statutes that authorize private owners to forcibly buy an access easement from an unwilling owner. If a landowner doesn’t have access to a public street, he can petition the local government to identify an access route and determine a fair price that he must pay the owner of the servient land.
Implying an easement by subdivision plat
A subdivision plat may imply the grant of easements to buyers of subdivided lots. A subdivision plat is a map showing how a subdivision will be laid out, with streets and individual lots. If the subdividing developer gives the streets to the public, which is automatic in some states, the lot owners generally have no need to claim a private easement over the public streets. But if the streets are private, the lot owners may have implied easements to drive over those streets. Likewise, they may have implied easements to use parks and other neighborhood amenities shown on the plat.
States vary in the extent to which lot owners acquire easements over streets in a subdivision plat. There are three approaches:
Broad rule: Each lot owner has an easement over all the streets in the plat.
Intermediate rule: Each lot owner has an easement over all the streets in the plat that reasonably benefit the use of his lot.
Narrow rule: Each lot owner has an easement over the streets that are necessary to get from his lot to a public street.
Over time: Acquiring easements by prescription
A person may acquire an easement by using the servient land a particular way for a long period of time. Such an easement is called a prescriptive easement. The user gets an easement by openly, adversely, continuously, and exclusively using the land for a number of years specified by state statute. The following sections explain each of the elements that someone has to prove to get a prescriptive easement.
Acquiring an easement by prescription today is similar to acquiring title to land by adverse possession (a topic I cover in detail in Chapter 14). The difference is simply that if the adverse use doesn’t amount to possession but is merely the use of the servient land, the adverse user acquires an easement to continue that use rather than complete ownership of the land.
Open and notorious use of the servient land
The claimant must have used the land as if he had an easement, in a way that was open and apparent to the servient owner. That way, the servient owner should be aware that the claimant is using her land and can bring a claim to eject him if she believes he doesn’t own an easement. In fact, if the owner of the servient land actually knows about the use of her land, it shouldn’t matter whether the use is visible.
Only physical uses of the servient land can create prescriptive easements. You can’t get a negative easement, such as an easement preserving views or light and air, by prescription.
Adverse use of the servient land
The claimant must act as if he has the right to use the servient land — in other words, as if he has an easement. If the claimant uses the land simply because the owner gave him revocable permission, the use is not adverse.
In general, open and continuous use of another’s property is presumed to be adverse. However, courts often say that use of unfenced, undeveloped land is presumed to be by permission of the owner. Maybe that’s because they assume that if an owner doesn’t fence her land, she’s telling everyone that she’s neighborly and doesn’t mind people using her land while she isn’t doing much with it. Or maybe courts figure that an owner of such land shouldn’t have to be as diligent in watching for adverse uses, because she’s leaving it open and not developing it — by presuming others’ use to be permissive, others are much less likely to obtain prescriptive easements over her land.
Although adverse use is sometimes described as “hostile” use, the use doesn’t have to be hostile in the sense that the owner of the land opposes the use. The use simply needs to reflect a claim to an easement. If the parties intend to create an easement but it’s void because of the statute of frauds, for example, the dominant tenant who uses the easement is acting under a claim of right, adversely to the servient tenant’s title, even though the servient owner doesn’t oppose the use because she, too, intended to grant the dominant tenant an easement. However, you should know that some courts have reasoned that in such cases, the agreement creates a license, and therefore the use is permissive.
If the claimant uses the land adversely, as if he has a claim of right, the owner can’t make the use permissive simply by telling the user that she gives him permission. The owner knows about the adverse claim and must take action to resolve the dispute within the statutory limitations period. However, some states say that an owner can declare a use to be permissive, such as by posting signs giving permission, and thereby avoid creation of a prescriptive easement.
Continuous and uninterrupted use
The prescriptive use must be continuous and uninterrupted. That means that the user makes use of the claimed easement in a way that is regular and normal for the type of easement claimed, rather than occasional and sporadic. It also means that neither the servient owner nor anyone else stops the prescriptive use during the required period of time.
Merely objecting to the use doesn’t interrupt the use. Nor does unsuccessfully trying to stop the use.
Exclusive use
Sometimes courts say that the use must be exclusive, which is also a requirement for the analogous doctrine of adverse possession (see Chapter 14). But an easement holder doesn’t generally have the right to exclude others from the land. The servient owner can continue to use the servient land as long as she doesn’t interfere with the use of the easement.
If this is a requirement for a prescriptive easement, it means only something similar to the requirement that the use be uninterrupted. An easement holder has the right to prevent others from interfering with his use of the easement, so if he does prevent others from interfering, then he has used the easement as exclusively as he can. But if he simply uses the land along with the public generally, then he doesn’t acquire a prescriptive easement.
Use for the statutory limitations period
All states have statutes specifying a time period within which a person must bring an action to eject a trespasser and regain possession of land; after that time period has passed, she loses her right to bring such a claim (see Chapter 14 for details). The time periods generally range from 5 to 20 years. To obtain a prescriptive easement, the claimant must prove that he satisfied the elements for a prescriptive easement for the specified number of years. He acquires an easement as soon as he has done so, regardless of whether he continues to satisfy the elements thereafter.
The statute of limitations doesn’t run against the government, so a person can’t get a prescriptive easement over government-owned land.
Interference and Trespasses: Determining the Scope of Easements
The parties to an easement may specify which part of the servient land the dominant tenant may use, how the dominant tenant may use that land, the purposes for which the dominant tenant may use the land, and which land the easement benefits. If the dominant tenant uses the servient land in a way not authorized by the easement agreement, he has trespassed on the servient land.
But often the parties aren’t specific about some or all of these aspects of the easement they create. In fact, when the easement is implied or prescriptive, there’s no express agreement defining the scope of the easement at all. In such cases, courts must figure out the extent of the rights owned by the easement holder and determine when the easement holder goes too far and trespasses on the servient land.
The following sections point out how to determine the scope of easements and when one of the parties invades the other party’s rights.
Prohibiting interference by the servient owner
The dominant tenant has the right to use the servient land in some way. That means he has the right to prevent others from unreasonably interfering with his use of the servient land. For example, the owner of a right-of-way can enjoin the servient owner from installing a locked gate across the way or building improvements that obstruct some of the width of the easement. Similarly, the owner of an easement to install and maintain pipes underground could have a court enjoin the servient owner from building something on top of the easement that would make it impossible or too difficult to access and maintain the pipes.
However, the dominant tenant doesn’t own the servient land and doesn’t have the right to exclude people generally. That means that the servient owner can use the servient land in any way that doesn’t unreasonably interfere with the easement. For example, the owner of land subject to an easement for underground pipes can still plant grass and play badminton on the surface of the easement, even though the dominant tenant would have the right to tear up the ground when needed to access the pipes. Because the servient owner retains all the rights to use the land that she hasn’t given away to the dominant owner, she can also transfer those rights to others. In fact, unless the easement says otherwise, she can even give an easement to another company to maintain pipes in the same area, as long as the presence of the other company’s pipes doesn’t unreasonably interfere with the dominant owner’s access to its own pipes. Of course, if the easement agreement says that only the dominant tenant has the right to install pipes in that location, then the servient owner has given up the right to use that land in that particular way.
An easement agreement that states that no one else may have an easement to use the same land in the same way is considered exclusive. However, easements are exclusive in this way only if they say so.
Preventing use that benefits nondominant land
An easement that benefits particular land can’t be used to benefit any other land. So if someone acquires a right-of-way to pass across the servient land to get to and from a parcel of land, the dominant tenant can’t enlarge the parcel of land that he accesses by means of the easement. That may seem strange, because it doesn’t seem like it should matter to the servient owner where the dominant owner goes after traveling over the servient land, but that’s the rule. In effect, the servient owner gave the right to the dominant owner to do a specific thing on the servient land: pass across it only to get to another particular parcel of land. If the dominant owner does something else, he’s acting beyond the scope of his right.
Using the easement to benefit other land is a trespass. Normally, a landowner is entitled to an injunction preventing trespass, regardless of whether the trespass injures her somehow. She has the right to exclude others even if they don’t harm the land or interfere with her use in any way. However, if the servient owner doesn’t promptly object to an expansion of the dominant land and the dominant owner invests in the property in reliance on the easement to access his enlarged property, a court may refuse to enjoin use of the easement unless the servient owner can show substantial injury.
Changing the type or purpose of use
An easement agreement may specify that the easement may be used for certain purposes and in certain ways. For example, an easement agreement might grant only the right to ride across the land on a unicycle to go to costume parties. In fact, lawyers who draft easement agreements ought to be as precise as possible to avoid uncertainty and disputes. If the easement agreement does limit the purposes for which the easement may be used, or the ways in which it may be used, then any use beyond those limitations is a trespass.
But when the easement agreement doesn’t specify permitted purposes or types of use, or when the easement is implied or prescriptive, the court must decide whether new uses of the easement are within the scope of the easement or whether they’re trespasses.
A change in the purpose or type of use is generally within the scope of the easement if the new use is a normal and reasonable evolution and it was reasonably foreseeable. For example, over time, the dominant estate may change from agricultural to residential uses, so cars rather than farm vehicles may travel the right-of-way. Most courts would agree that such a change is a normal, foreseeable evolution in the use of the land and that when the parties created a general right-of-way, whether it was express or implied, they would’ve intended for the dominant tenant to have the right to use the easement in normal ways over time. Therefore, such a change in the use of the easement is not a trespass on the servient land.
If the easement is prescriptive, a court may ask whether the servient owner would’ve objected to the new use if it had occurred before the prescriptive period had run. If the servient owner would’ve objected, then the new use is beyond the scope of the prescriptive easement. (See the earlier section “Over time: Acquiring easements by prescription” for details on prescriptive easements.)
Increasing the burden on the servient land
The dominant owner may trespass by using the easement in ways that increase the burden on the servient land. An express easement may specify the extent to which the dominant owner may burden the servient land, such as specifying the size of vehicles or number of trips per day allowed on a right-of-way or noting the number and size of underground pipes allowed in an easement. Any use of the easement beyond such express limits is a trespass.
Of course, if an easement doesn’t specify such limits, the court must try to figure out what the parties intended or would’ve agreed to. Here are some factors the court may consider:
The character and severity of the increased burden on the servient land: The servient tenant expressly or implicitly agreed to allow the dominant tenant to use her land in some way and thereby to burden her own use of the land to some extent. The servient tenant also reasonably could expect that the use would change over time. But the servient owner presumably wouldn’t have expected or agreed to a use that would significantly interfere with her own ability to use and enjoy her property.
The benefit to the dominant tenant: Courts may weigh the burden on the servient tenant against the benefit to the dominant tenant to decide whether a particular increase in use is reasonable.
The parties’ agreement: Here are some ways the courts try to figure out the parties’ intent for express, implied, and prescriptive easements.
• If the easement is express, a court considers whether the parties’ agreement indicates their intention in any relevant way. The court also looks at the consideration paid and the circumstances in which the parties agreed to the easement, which may suggest an intention about the permissible extent of use.
• If the easement is implied, a court considers the circumstances that imply the easement to help decide whether a more intensive use of the easement is within the scope of what the parties would’ve intended.
• If the easement is prescriptive, the court considers whether the servient tenant would’ve objected to the more intensive use if it had occurred during the prescriptive period.
Foreseeability: If the use is more intensive in ways that were natural and foreseeable, it’s more likely to be within the scope of the easement.
Past use of the easement: The parties’ past conduct may suggest their original understanding about limits to use of the easement.
Maintaining the easement
An easement agreement may say that the dominant or servient owner has or does not have duties to maintain the easement. The parties may agree to allocate such duties and expenses as they wish.
In the absence of such an agreement, the dominant owner has a duty to maintain the easement so that it doesn’t unreasonably interfere with the servient owner’s use of her land. Some courts, however, have held that the servient owner must share the expense of maintaining a right-of-way that the servient owner uses along with the dominant owner.
Beyond her basic duty to the servient owner, the dominant owner also has the privilege to maintain, repair, and even improve the land subject to the easement in reasonable ways to make the easement useful. For example, the dominant owner can pave a driveway over the servient land, unless doing so would unreasonably burden the servient land. The servient owner likewise can, if she chooses, maintain, repair, and improve the land subject to the easement as long as doing so does not unreasonably interfere with use of the easement.
Transferring and Dividing Easements
An easement owner can transfer his easement to another person. And as with other property interests, in some ways an easement owner can divide his easement rights and transfer some of them to another person. Similarly, a servient owner can transfer the servient land to another person.
An easement always stays attached to the servient land, so any transfer of the land also transfers the burden of the easement. The deed transferring the servient land doesn’t have to mention the easement in order for the easement to transfer with the land. However, if the new owner of the servient land didn’t know about the easement and couldn’t reasonably have discovered the easement, then a state recording statute may free the new owner from the easement burden. (I examine how recording statutes work in Chapter 17.)
Look at the following sections for info on transferring and sharing easements and the legal limits on doing so.
Sticking to the land: Transferring appurtenant easements
An easement that benefits particular land is appurtenant to that land. For example, a right-of-way to drive across servient land to access adjoining dominant land is appurtenant to the dominant land.
A profit also may be appurtenant to specific land. For example, a profit to remove soil for agricultural purposes on the dominant land would be appurtenant to that land.
An appurtenant easement is part of the dominant land and can’t be separated from it. So whenever the dominant owner transfers the dominant estate, the easement passes to the new owner, whether the deed mentions the easement or not. However, if a deed conveying the dominant land says that the grantor doesn’t transfer the easement, the appurtenant easement will simply end, because the grantor can’t keep the easement separate from the dominant land. An attempt to transfer the easement without transferring the dominant estate is void.
Dividing appurtenant easements
Unless an easement agreement says otherwise, an appurtenant easement attaches to the entire dominant parcel that the dominant owner held at the time the easement was created. So if the dominant owner divides the dominant land among several owners, all those new owners have the same right to use the easement, even though they don’t own all of the original dominant parcel.
However, division of the dominant land generally results in more intensive use of the easement. If the increase in use is unreasonable and unforeseeable, then the dominant owners may be guilty of trespass (see the earlier section “Increasing the burden on the servient land” for details). However, because subdivision is common, courts typically assume that subdivision for development is reasonable and foreseeable unless an easement agreement says otherwise.
Transferring easements in gross
Profits in gross are freely transferable, but only some easements in gross are transferable. Courts generally agree that commercial easements in gross — those benefiting commercial operations rather than specific land — are transferable. Examples of such easements include utility easements for pipelines, transmission lines, and telephone lines; railroad easements; and recreational easements for businesses (such as boating, fishing, and hunting rights).
On the other hand, personal easements in gross — created for the easement holder’s enjoyment rather than for economic benefit — are not transferable. For example, recreational easements to boat, fish, and hunt may be for the personal enjoyment of the easement holder.
The parties to an easement can agree that an easement is transferable, not transferable, or transferable only in specified situations. Even if the parties don’t directly say whether an easement in gross is transferable, they may otherwise indicate their intention. You could say that commercial easements, for example, are transferable because the nature of the easement suggests that the parties intended it not just to benefit a particular person or company but to benefit a particular operation that might later change ownership.
The parties may otherwise indicate their intention to allow or restrict transfer of an easement in gross. For example, an easement agreement may grant an easement to the named grantee and his “heirs and assigns.” Some courts say those words sufficiently indicate the intention to make even a personal easement transferable. Others suggest that such indications of intent are just one relevant factor to consider, along with other factors such as
How much the easement holder paid for the easement
How much the transfer of the easement may increase the burden on the servient estate
The relationship between the grantor and grantee and the circumstances in which the easement was created
Some states have passed statutes that make easements in gross transferable unless the creating instrument says otherwise.
Dividing easements in gross
The owner of an easement in gross — one that benefits a person or commercial operation rather than land — may divide the benefit of the easement among multiple owners if the easement agreement says so. But often the easement agreement isn’t explicit about division of the benefit, so courts have to decide whether the parties intended to allow such division of the easement. If the instrument creating the easement says it’s “exclusive,” that generally means that the servient owner can’t give that right to anyone else. Instead, the dominant owner can transfer that right in whole or in part to others. For example, the owner of an exclusive pipeline easement could share that easement with other pipeline companies. Similarly, if an easement or profit specifies the extent of permitted use by the dominant tenant, the dominant tenant can share the easement with others as long as he doesn’t exceed the specified maximum use.
If the easement isn’t exclusive, some courts say that it can’t be divided. But most courts would probably agree that the easement can be divided if the grantor somehow indicated the intent for the easement to be divisible.
Courts also may allow division of an easement or profit in gross if the division doesn’t increase the burden on the servient estate. Some courts still apply the traditional one stock rule, which says that when multiple parties use an easement in gross they exceed the scope of the easement unless they use the easement as one enterprise, such as partners and joint venturers. Most courts, however, allow multiple parties to use an easement as long as their uses don’t increase the burden on the servient estate, regardless of whether they act as one enterprise. For example, some courts have held that a utility easement holder could sell to a cable television company the right to install cable television lines on existing utility poles, because doing so doesn’t increase the burden on the servient land.
Terminating Easements
An easement is permanent unless the parties agree otherwise. But the parties certainly can agree that an easement will terminate at some point, whether at a specific time or when certain conditions occur.
Here are some examples of how easements may expire:
An easement agreement may say the easement lasts for a specific time period or for the lifetime of the easement holder.
An easement agreement may say the easement lasts only as long as it’s used for a specific purpose, such as for a railroad. If the easement agreement specifies a purpose for the easement, the easement ends when that purpose can no longer be served, even if the easement agreement doesn’t say so. For example, a grant of an easement for access to a specific public road ends if the public road is closed.
An easement in a building or a structure ends when the building or structure is destroyed.
An easement that benefits or burdens less than a fee simple estate ends when the relevant estate ends. (See Chapter 9 for details on estates.)
A personal easement in gross ends when the dominant owner dies.
Even if an easement is permanent and will never naturally expire, the owner of the easement may terminate the easement in a variety of ways. The following sections detail how that can happen.
Terminating easements by express release or agreement
You can expressly terminate an easement just like you can expressly create one. The dominant owner can release the easement by deed, thereby extinguishing it. Or the dominant owner can transfer the easement by deed to the servient owner. As soon as the same person owns both the easement and the servient land, the two merge because you can’t have an easement on your own land.
Ending easements by merging dominant and servient estates
If the same person acquires the dominant and servient estates, the easement merges with the servient estate and ends. That’s true even if the parties don’t expressly intend for merger to extinguish the easement, because you can’t have an easement over your own land.
Courts generally agree that after merger terminates an easement, the easement doesn’t revive if the servient and dominant estates are later owned separately again.
Abandoning easements
Even though the owner of title to real property can’t simply abandon ownership, the owner of an easement can terminate his easement by abandoning it. Unlike with abandoned chattels (covered in Chapter 13), an abandoned easement doesn’t continue to exist, waiting for someone else to find and take possession of it. It simply ends.
Successfully claiming an easement was abandoned requires proving that the easement holder has
Stopped using the easement
Clearly indicated that he intends to give up ownership of the easement
Like an owner of title to real property, the owner of an easement doesn’t have a duty to use his property interest. He can let it sit unused as long as he wants, and whenever he decides to, he can make use of it again. So an easement holder abandons an easement only if he indicates not only that he isn’t going to use it now but that he doesn’t want to keep it for possible use in the future.
Here are some examples of how an easement holder can clearly indicate his intent to abandon the easement:
The easement holder takes actions that prevent use of the easement in the future. If a railroad owns an easement for railway use and removes all the railroad tracks from the easement, the railroad’s actions may sufficiently indicate intent to abandon the easement. Or if an easement holder blocks off his access to the easement by building a structure, he indicates that he intends to abandon the easement.
The easement holder doesn’t object to obstructions of the easement by the servient owner for a substantial period of time. However, in some cases, even such acquiescence might not clearly indicate intent to abandon an easement. For example, if the easement holder had two access easements to his property, his failure to object to obstruction of one of the easements might not indicate intent to abandon but simply that he didn’t need to use that easement during that time.
The easement holder acquires and uses a new easement that serves the same purpose. In some cases, this has supported the court’s finding that the easement holder showed that he didn’t intend to use the old easement anymore.
The easement becomes unusable because the easement holder has failed to maintain, repair, and keep it clear.
Express statements of intention to abandon are probably not enough to establish abandonment. Such expressions can help to interpret the easement holder’s actions, but most courts agree that the easement holder must take some action evidencing abandonment, not merely express the intent to do so.
Terminating easements by estoppel
Estoppel terminates an easement in circumstances similar to abandonment. But instead of terminating the easement because the dominant tenant has given it up (see the preceding section), estoppel terminates the easement because the servient tenant has relied upon the dominant tenant’s conduct that indicates his intent to give it up.
The servient owner must prove the following to establish termination by estoppel:
The dominant tenant indicated that he no longer intended to use the easement, whether by doing the same kinds of things that indicate abandonment or by verbally indicating his intention.
The servient tenant reasonably relied on the dominant tenant’s indications of intent.
The servient tenant’s reliance would cause her to suffer a material detriment if the easement were not terminated.
A typical termination by estoppel occurs when the dominant tenant somehow indicates that he authorizes a substantial improvement by the servient owner that prevents use of the easement. If the dominant owner doesn’t directly indicate authorization but merely hasn’t been using the easement for a long time and then doesn’t object when the servient owner builds the obstructing improvement, the dominant owner may be estopped if the servient owner’s reliance was reasonable and she would suffer significant enough harm if the easement were not terminated.
In some cases, estoppel terminates an easement only temporarily or partially. For example, if the dominant owner authorized a temporary obstruction of the easement for construction, the dominant owner is estopped from using the easement during the period of construction. Or if the servient owner partially obstructs the easement in reasonable reliance on the dominant owner’s conduct, the dominant owner can continue to use the easement as far as possible but can’t have the obstruction removed.
Extinguishing easements by adverse use
The servient owner can extinguish an easement on her land by adversely using it for the same period of time required for adverse possession or a prescriptive easement. The servient owner must satisfy the following basic elements (see the earlier section “Over time: Acquiring easements by prescription” for more discussion of these elements):
Open and notorious use: The servient owner must use the property subject to the easement in a way that’s open and reasonably discoverable by the dominant tenant.
Adverse use: The servient owner’s use must be inconsistent with the rights of the dominant tenant. Because the servient owner has the right to use the servient land in any way that doesn’t unreasonably interfere with the use of the easement, even very substantial uses by the servient owner may not be adverse. To be adverse, the servient owner must use the servient land in a way that unreasonably interferes with the dominant owner’s use of the easement.
Continuous and uninterrupted use: If the dominant owner successfully interrupts the servient owner’s adverse use, the easement won’t be extinguished by adverse use.
Exclusive use: The servient owner must use the servient land exclusive of the dominant tenant in order to extinguish an easement. That’s because an easement holder doesn’t have the right to exclude the servient owner, but a title owner does have the right to exclude a trespasser. So in order to extinguish the dominant tenant’s rights and make her a trespasser, the servient owner must exclude her from using the easement. Merely sharing use with the dominant tenant isn’t enough.
For the limitations period: The same limitations period that applies to adverse possession and prescriptive easement claims also applies to extinguishing easements by adverse use.