Easements

Easement-

An interest in land in the possession of another which (a) entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists (b) Entitles him to protection as against third persons from interference in such use or

The essence of an easement is that it:

Creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement

To have an easement, you must satisfy all 5 of the following requirements:

1. An interest in land possessed by another allowing limited use or enjoyment of the land
2. The interest can be protected from interference by others
3. The interest is not subject to the will of the titleholder
4. The interest is not a right extended to

Affirmative easements-

Entitle one to do acts upon the burdened land or which affect the burdened land. It allows its holder to do things on the others land

Negative easements-

Entitle the owner of the easement to prevent the owner of the burdened land from making certain uses of his land. It allows its holder to prevent the land possessor from doing certain things

Appurtenant easement-

An easement that is annexed to the ownership of one parcel and allows the owner the use of the neighbor's land.
* Benefits the title holder of a neighboring parcel
* Creates a right of access for non owners of one property for another's benefit

Gross easement-

A personal right to use another's property, granted by the owner; does not attach to the estate, and there are no dominant or servient tenements.
* Benefits someone who does not hold title to a neighboring estate
* A legal right to use another persons lan

Dominane estate-

The estate that benefits from an appurtenant easement. The estate that owns the easement.

Servient estate-

The estate that is subject to an easement

Every easement has a ____________ estate

Servient

Profit-

An easement that confers the right to enter and remove timber, minerals, oil, gas, game, or other substances from land in the possession of another

License-

In general, is subject to termination at the will of the possessor of the land subject to the privilege of use
* Occurs when someone is using another land permissively

Almost all easements are created _________________

Expressly

Easements can be created through:

1. Necessity for access
2. Implication through land use
3. Prescription through adverse use

Necessity for access:

* Original unity of ownership between the two parcels
* No other means exist for access to a public road except over the other parcel
* Exist inchoate- unexercised until needed

Implication through land use:

* 2 most common
- 1. By making reference to a map which shows an easement
- 2. By how land is used before it is conveyed/split in ownership

Under implication through land use, there is pre existing use:

* Common ownership of the dominant and servant parcels followed by a conveyance of one or the other
* Before the severance of ownership, the use by the dominant estate of land is inside the servant estate
* The use was apparent, obvious, continues and per

The restatement looks at the following things to decide if there is an easement by implication:

* Whether the claimant is the conveyor or the conveyee
* The terms contained in the conveyance
* The consideration given for the conveyance
* Whether the claim is made against a simultaneous conveyee
*the extent of necessity of the easement of the claiman

Prescription through adverse use:

* Have nothing to do with presumed intent
* Taken from adverse use
* Use of the claimed easement is open, adverse, continuous, uninterrupted, under a claim of right (acting like an owner)

Prescription through adverse use vs. adverse possession:

With adverse possession you have to claim that the occupancy of the land was exclusive

Acquiescence-

Consent by silence
* Some courts add this as another element for prescription easements
* The servient estate holder must actually or constructively know or should have known of the adverse use and not object to the prescriptive use continuing

Customary rights doctrine (minority rule):

* Customary rights provide an easement like right to the public
* They are NOT easements
* Cannot create them by conveyance, so the 5th element of our definition of easements is not satisfied

To establish a customary right:

1. There must have been a long and general use of a servient estate
2. It must have been exercised without interruption
3. It must have been exercised without dispute
4. It must be a reasonable use of the type of land in question
5. It must be limited to

Littoral (ocean front estate) rights:

* Majority rule: An owner of an ocean front estate has title up to the mean high tide line
- that means the public/state owns the wet sand area of the beach
*Minority rule (including MASS): Gives the owner to the mean low tide line
- this means that the p

Limitations on the use of an easement:

* An easement can only be used by the appurtenant dominant estate
* The character of the use of the easement cannot change from that which was granted
* If the character of the use changes in a way that imposes an unreasonable burden on the servient estat

Divisibility of an easement:

* Addresses the transfer of an easement from the current dominant owner(s) to a greater number of owners
* Divisibility is a problem as it can increase the use of the easement
* An unreasonable increase in use of an easement is known as surcharging it
* U

General rule for interpreting an easement:

* Implement the wording that created the easement
- If there are any gaps, use the rule of reasonableness to determine an appropriate balance between the dominant and servient estates

The rule of reasonableness is a 2 way street:

Both the dominant and servient estate holders rights will be construed in a reasonable way

Moving an easement:

* Traditionally: An easement, once located, could not be moved without the consent of both parties
* Today, there is a trend away from this as expressed in the restatement, which allows the servient estate holder to move the easement if it is not going to

Time standard for interpreting an easement:

The use of an easement is evaluated on a contemporary standard, not on the standards that existed when the easement was created
- Figure out modern equivalent

Termination of an easement:

1. Express
2. Merger
3. Abandonment
4. Prescription

Express termination:

The dominant estate holder conveys a release to the servient estate holder

Merger termination:

If the dominant estate holder acquired title to the servient estate or vice versa, the easement and the fee merge, extinguishing the easement

Abandonment of an easement:

If the dominant estate stops using the easement with the objective intent never to use it again, it has been abandoned
- Non use is not sufficient to terminate an agreement

Prescription termination of an easement:

If the servient estate interferes with the use of the easement for the period of time given in the statute of limitations in an open, adverse, continuous, uninterrupted manner, the easement terminates prescriptively