EASEMENT
A right of use over the property of another.
Traditionally the permitted kinds of uses were limited, the most important being rights of way and rights concerning flowing waters. The easement was normally for the benefit of adjoining lands, no matter who the owner was (an easement appurtenant), rather than for the benefit of a specific individual (easement in gross).
Easements frequently arise among owners
of adjoining parcels of land. Common examples
of easements include the right of a property
owner who has no street front to use a particu-
lar segment of a neighbor’s land to gain access
to the road, as well as the right of a MUNICIPAL CORPORATION to run a sewer line across a strip of an owner’s land, which is frequently called a
right of way.
Easements can be conveyed from one indi-
vidual to another by will, deed, or contract,
which must comply with the STATUTE OF
FRAUDS and can be inherited pursuant to the
laws of DESCENT AND DISTRIBUTION.
An easement is a nonpossessory interest in
another’s land that entitles the holder only to the
right to use such land in the specified manner. It
is distinguishable from a profit a prendre that is
the right to enter another’s land and remove the
soil itself or a product thereof, such as crops or timber.
An easement appurtenant attaches to the
land permanently and benefits its owner. In
order for it to exist, there must be two pieces of
land owned by different individuals. One piece,
the dominant estate or tenement, is the land that
is benefited by the easement. The other piece,
known as the servient estate or tenement, is the
land that has the burden of the easement. An
easement appurtenant is a COVENANT running
with the land since it is incapable of a separate
and independent existence from the land to
which it is annexed. A common example would
be where one landowner—A—is the owner of
land that is separated from a road by land owned
by B. If B sells A a right of way across his or her
land, it is a right that is appurtenant to A’s land
and can only be used in connection thereof.
An easement in gross is not appurtenant to
any estate in land. It arises when a servient piece
of land exists without a dominant piece being
affected. This type of easement is ordinarily per-
sonal to the holder and does not run with the
land. For example, if A has a number of trees on
his or her property and B contracts with A to
enter A’s land to remove timber, B has both an
easement in gross and a profit. At COMMON
LAW, an easement in gross could not be assigned;
however, most courts currently allow certain
types of easements in gross to be transferred.
Easements are categorized as being either
affirmative or negative. An affirmative easement
entitles the holder to do something on another
individual’s land, whereas a negative easement
divests an owner of the right to do something on
the property. For example, the owner of land
might enter into an agreement with the owner
of an adjoining piece of land not to build a high
structure that would obstruct the light and air
that go onto the adjoining owner’s land. This
easement of light and air deprives the property
owner who gives it up from enjoying ownership
rights in the land to the fullest possible extent
and is labeled a negative easement.
There are various ways in which easements
are created. An express easement is clearly stated
in a contract, deed, or will. An easement by
implication occurs when the owner of a piece of
land divides such land into smaller pieces and
sells a smaller piece to another person, retaining
a right to enter such piece of land. For example,
a seller divides his or her property and sells half
to a purchaser. The piece that the purchaser buys
has a sewer pipe beneath it that serves both
pieces of property. The seller has an implied
easement to use the sewer pipe that runs under
the purchaser’s land.
An easement by prescription arises through
an individual’s use of land as opposed to the
possession thereof. An easement of this nature
will be recognized in these instances: (1) the
easement is adverse or contrary to the interests,
and absent the permission, of the landowner;
(2) it is open and notorious; (3) it is continuous
and uninterrupted; and (4) it exists for the
period of time prescribed by state statute. If for
a period of time beyond the prescribed statutory
period A creates and openly uses a right of way
across B’s land without B’s permission then an
easement by prescription is created.
An easement can either be terminated
through the expiration of its term as determined
upon its creation or by one of several events
occurring subsequent to creation. Events that
can extinguish an easement include these:
(1) the same individual becoming the owner of
the dominant as well as the servient estate when
an appurtenant easement existed; (2) the owner
of an easement in gross obtaining ownership of
the servient estate; (3) the owner of the domi-
nant tenement executing a deed or will releasing
the easement in favor of the owner of the
servient tenement; and (4) the ABANDONMENT
