I. Property 1 A. Definition 1

XI. Servitudes A. Easements

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XI. Servitudes

A. Easements

1. Nature of:

a. Defined

i. a grant of an interest in land that entitles a person to use land possessed by others

b. Types

i. Positive / affirmative
a) non-possessory right to use and enjoy the land
ii. Negative
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. Intention
ii. history
iii. elimination of obsolete easements
iv. land value increased

3. Interest in land

a. an easement is an interest in land

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.

6. Creation of Easements by an Express Act

a. Drafing problems

i. Must conform with statute of frauds and statute of wills
ii. should use the same language as when granting or devising an estate

b. Reservation by grantor

i. if the grantor conveys land, reserving an easement, the land conveyed is the servient tenement

c. Reservation in favor of third party

i. minority of jurisdictions do allow easements and profits to be created in favor of third parties by language of reservation
ii. in jurisdictions that have a problem with this, the draftsman can finesse the problem simply by having the grantor make separate grants of the estate and of the easement in the same deed

7. Easements Implied from Prior Use

a. The implication of an easement arises out of a pattern of circumstances surrounding the conveyance

b. Elements

i. a conveyance
ii. of a physical part only of the grantor's land (hence he retains part, usually adjoining the part conveyed)
iii. before the conveyance there was a usage on the land that, had the two parts then been severed, could have been the subject of an easement appurtenant to one and servient upon the other;
iv. this usage is, more or less, necessary to the use of the part to which it would be appurtenant; and
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

a. Elements

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
iii. Most courts recognize a degree of flexibility
a) sometimes it is said that the claimant is entitled to sufficient access to make effective use of his land
b) what about navigable water?

e. Necessity for the easement must exist at the moment of severance; a necessity later will have no effect

9. Easements Implied From Plat -- subdivisions

a. Usually arise in states where the act of platting does not necessarily dedicate to the public

i. owner will argue that the easements were implied by his purchase by incorporating by reference the plat that showed the easement areas

b. this is confusing to the courts as well -- go through the section in the supplement if you have more time

10. Easements by Prescription

a. Relation to adverse possession?

b. chief distinction b/t prescription and adverse possession

i. in adverse possession the claimant occupies or possesses the land, whereas in prescription he makes some easement like use of it

c. defined?

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

a. Rule

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

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