Easements

Question 1

What is an easement?

Answer 1

a non-possessory right to use the land of another person

an interest in land owned by another person, consisting in the right to use or control the land or an area above or below it for a specific limited purpose (such as to cross it for access to a public road

Case rule from mil brook: a grant of an interest in land typically constitutes an easement if it is for some definite period of time

Question 2

What is servitude?

Answer 2

an encumbrance consisting in a right to the limited use of a piece of land without possession of it; a charge or burden on an estate for another’s benefit

Question 3

What is a license?

Answer 3

permission or agreement, usually revocable, that it is lawful for the licensee to enter the licensor’s land to do some act that would otherwise be illegal, such as hunting game

Question 4

Profit a perndre

Answer 4

= a right or privilege to go on another’s land and take away something of value from its soil or from products of its soil (mining, logging, hunting)

Question 5

What is dominant estate?

Answer 5

land benefitted by the easement

Question 6

What is servient land?

Answer 6

land burdened by the easement

Question 7

What is the dominant tenement/land

Answer 7

land that is benefitted from easement

Question 8

What is the servient land?

Answer 8

it is the land that is burdened by the easement

Question 9

Who is dominant owner?

Answer 9

the easement holder

Question 10

Who is the servient owner?

Answer 10

owner of the servient tenement

Question 11

What are the types of easements?

Answer 11

1. express easements
2. implied easement by prior existing use
3. easement by necessity
4. prescriptive easement
5. easement by estoppel

Question 12

What are the two ways that express easements are created?

Answer 12

1. express easement by grant –> the servient owner grants the dominant owner an easement to the dominant owner
2. Express easement by reservation –> this arises when the dominant owner grants the servient land to the servient owner, but retains use of the easement over that property

Question 13

What is an appurtenant easement?

Answer 13

An easement that benefits the holder in her use of a specific parcel of land –> seen as attached to dominant estate itself, seen as attached to the dominant estate itself, not to any particular owner of the land

Question 14

Easement in gross

Answer 14

not connected to holes use of a particular land, rather it is personal to the owner

Question 15

Affirmative Easement vs. Negative Easement

Answer 15

allows holder to perform an act on the servant land

allows holder to prevent the servient owner from performing the an act on the servient land

Question 16

What is an implied easement by prior existing use?

Answer 16

An implied easement by prior existing use has 3 elements
1. severance of title to land held in common ownership
2. an existing apparent and continuous use of one parcel for the benefit of another at the time of the severance
3. reasonable necessity for the use

Reasonable necessity: the easement must be beneficial or convenient for the use of the dominant estate, but need not be essential; reasonable necessity usually means that alternative access cannot be obtained without substantial expenditure of money or labor

Question 17

Emanuel v. Hernandez case law for implied easement by prior existing use

Answer 17

1. if an easement implied by prior use did not arise the moment the property was served, a change in circ. after the severance cannot create such an easement

Question 18

Implied easements by necessity:

Answer 18

Two elements:
1. severance of title to land held in common ownership
2. necessity for the easement at the time of severance

Traditional necessity rule: strict necessity is required –> only when owner has no access to her land.

Modern Majority Rule –> most courts require only reasonable necessity; easement must be beneficial or convenient for the use of the dominant parcel, but not absolutely necessary .

Question 19

Prescriptive Easement

Answer 19

1. Open and notorious
2. adverse and hostile (most states presume adversity)
3. continuous
4. for the statutory period.

Question 20

What is easement by estoppel?

Answer 20

most courts find easement by estoppel when:

1. landowner allows another to use his land, this creating a license
2. licensee relies in good faith on the license, usually by making physical improvements or by incurring significant costs; and
3. the licensor knows or reasonably should expect such reliance will occur

Question 21

Scope of easements for express and implied easements:

Answer 21

the law presumes that an easement holder would be entitled to do anything that is reasonably necessary for the full enjoyment of the easement
* Reasonable changes in manner, frequency, or intensity of use to accommodate normal development of the dominant estate are permitted, even if this somewhat increases burden on servient estate
* Easement holder CANNOT change the scope of the easement so as to impose an unreasonable burden on the servient land

Question 22

Scope of easements for prescriptive easements:

Answer 22

courts are reluctant to permit expansion of a prescriptive easement b/c it has little connection to party intent; presumption that parties intended the easement to expand to meet future needs is not available

Question 23

Moving Easements Traditional and Minority Rule

Answer 23

Traditional Rule: location of an easement can be changed only if both the servient and dominant owners agree

Minority Rule: servient owner may relocate an easement as long as this does not significantly lessen the utility of the easement, increase the burdens on the easement holder, or frustrate the purpose of the easement

Question 24

Interpreting intent rule:

Answer 24

contracting parties’ intentions as expressed in the grant determine the scope of the conveyed interest (Marcus Cable v. Krohn)
 An easement’s express terms, interpreted according to their generally accepted meaning, delineate the purpose for which the easement holder may use the property
 If a particular purpose is not provided for in the grant, a use pursuing that purpose is NOT allowed

Question 25

Change In Use of easement rule

Answer 25

the manner, frequency, and intensity of an easement’s use may change over time to accommodate technological developments

Question 26

public policy easements rule:

Answer 26

a court may not adopt an easement interpretation based on public policy UNLESS that interpretation is supported by the grant’s terms

Question 27

Termination rules

Answer 27

express easement –> may terminate on it’s own

Question 28

Terminating Easements Abandonment Rule:

Answer 28

in addition to nonuse, an act by the owner of the dominant estate must conclusively and unequivocally manifest either (a) a present intent to relinquish the easement or (b) a purpose inconsistent with its future existence

Question 29

Terminating Easements: prescription

Answer 29

 if the servient owner blocks use of the easement in an open and notorious, adverse and hostile, and continuous manner for the prescriptive period, the easement ends

Question 30

Merger Rule

Answer 30

 if one person obtains title to both the easement and the servient land, then the easement terminates under the doctrine of merger

Question 31

Estoppel Rule

Answer 31

easement ends if servient owner substantially changes his position in reliance on the holder’s statement that the easement will not be used in the future

Question 32

Misuse Rule

Answer 32

in some jx, if the holder seriously misuses the easement, it may be ended through forfeiture

Question 33

Release Rule

Answer 33

easement holder may release the easement to the servient owner by executing and delivering a writing that complies with the SoF