i. a grant of an interest in land that entitles a person to use land possessed by others
i. Positive / affirmative
a) non-possessory right to use and enjoy the land
a) forbid someone from using their property in a certain way
2. Easements appurtenant and in gross
a. Easement appurtenant
i. right to use someone's property for the benefit of the land
a) land the is being used / restricted is called the servient tenement
b) land benefited is the dominant tenement
ii. attached to the dominant tenement and passes with the tenement to any subsequent owner of the tenement
b. Easement in gross
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
ii. easement right does not pass with the land but can be assigned
c. Easement appurtenant favored over an easement in gross
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.
i. crops, timber, minerals, wild game, and fish
b. when a profit is granted, an easement to go onto the land and remove the subject matter is implied
5. License compared
a. a license is permission to go upon land belonging to the licensor. Revocable at the will of the licensor.
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
vii. courts may be less disposed to find, and to require stronger proof or, a reserved than a granted implied easement
8. Easements Implied From Necessity
i. a conveyance
ii. of a physical part only of the grantor's land (hence he retains part, usually adjoining the part conveyed);
iii. and after severance of the two parcels, it is necessary to pass over one of them to reach any public street or road from the other.
b. Difference from above easement?
i. no pre-existing prior use is required -- the severence will more or less landlock one of the parcels unless its owner is given implied access over the other parcel
c. Limitation of doctrine?
i. limited to ways of necessity -- harder to make out a case of necessity for some use, such as utility lines, other than access
ii. Nonetheless, the argument would seem plausible in a strong case
d. What does necessary mean?
i. completely landlocked clearly meets the definition
ii. If a claimant has free access to some part of his land, he cannot make out a way of necessity to another part just because it would be more convenient
i. the actual, open, notorious, hostile, continuous and exclusive use of another's land
d. use of possession?
i. overhanging eaves?
a) generally seen as uses
ii. paved driveway?
a) use but it is permanent?
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