i. easement does not benefit its owner in the use and enjoyment of his land, but merely gives him the right to use the servient land --- benefit the owner only personally not in connection with his ownership or use of any specific parcel of land
a) easements for utilities, street easements, and railroad easements
i. the burden passess to subsequent owners of the servient land. the owner of an easement does not have merely contract rights against the original grantor of the easement but also has rights against all successors to the grantor
4. Profit compared
a. a profit is the right to take something off another's land that is part of the land or a product of the land.
a) reasonable necessity describes the stance most courts take -- most courts will find the requirement satisfied if the owner of the dominant tenement would be put to appreciable expense to provide a substitute of the claimed easement
v. the usage is apparent
a) no problem when this deals with a well beaten path but what about underground uses (sewers / utilities) -- courts hold that these are apparent b/c discoverable by inspection of untility connections --- seems to indicate that reasonably discoverable is apparent
vi. some cases require that the usage be continuous but this has pretty much died away
iii. It seems that the test should flow from the principle that possession implies not only the possessor's use but his exclusion of others, while use involves only limited activities that do not imply or require that others be excluded
iv. Common driveway by oral agreement?
a) is this hostile? Depends on the interpretation of the courts -- but adverse claimant has a burden to show notorious acts beyond the scope of the permission
11. Creation by Estoppel or Part Performance
i. a person may become unconditionally entitled to the use of land through an oral agreement followed by certain types of conduct. Pursuant to the agreement, the licensee must ahve expended money property or labor which he would not have spent but for the lecense, and the licensor must have had reason to anticipate the expenditure
b. This can be done through estoppel or part performance