Easements, Profits, and Licenses

Question 1

What is an “easement”?

Answer 1

It is a non-possessory interest in land, such that one has the right to use another’s land. Profits are generally lumped under the “easement” definition, because for most practical purposes they are treated the same way; however, strictly speaking, a “profit” is the right to enter another’s land and remove something from it (e.g., minerals, water, wood).

Question 2

What are the six ways in which easements may be created?
(NEED PIE)

Answer 2

1. Expressly (will, Deed, Grant or Reservation)
2. Estoppel
3. Necessity
4. Implication
5. Prescription
6. Eminent Domain

MNEMONIC: NEED PIE (Necessity; Expressly; Eminent Domain; Prescription; Implication; Estoppel)

Question 3

There are two, general classifications of easement. What are they?

Answer 3

1. Affirmative easements: One is allowed to use the “servient estate”. Remember: I CAN USE YOURS.
2. Negative easements: One can restrict the use of another piece of land, the “servient estate.” Remember: YOU CAN”T USE YOURS.

Question 4

What is an “easement appurtenant”?

Answer 4

An “easment appurtenant” is an easement granted to an idividual only in his status as possessor of a certain piece of land. The easement is useful tothe individual only because he possesses that particular piece of land. The parcel of land possessed by the individual who holds the easement is known as the “dominant tenement/estate”; the pieced of land “burdened” by the easement is known as the “servient tenement/estate”.
You can easily recognize an easement appurtenant, as opposed to an easement in gross, because an easement appurtenant must involve at least two pieces of land; an easement in gross involves only one, the “burdened” or servient estate.

Question 5

What is an “easement in gross”?

Answer 5

An “easement in gross” benefits an individual or business, as opposed to the owner of a specific piece of land. The most common type of easement in gross is that of public utilities. (the opposite number, an “easement appurtenant”, benefits a specific piece of land).
An easement in gross is distinguished from an easement appurtenant in that it involves only one piece of land, a servient estate; an easement appurtenant must involve at least two pieces of land, a dominant and servient estate.

Question 6

Are most easements considered “easements appurtenant,” or “easements in gross”?

Answer 6

Most easements are characterized as appurtenant easements - an easement that is specific to a piece of land (e.g., rights-of-way).

Question 7

Why does it matter whether an easement is characterized as an “easement appurtenant” or an “easement in gross”?

Answer 7

Conveyancing. An easement appurtenant is considered part of the dominant estate; when the ownership of the estate is transferred, the easement is, too, either explicitly or implicitly.

An easement in gross, on the other hand, cannot be conveyed unless the grantor of the easement expressly permits it. This is the traditional rule. However, according to modern courts, commercial easements in gross (those granted for business reasons) are freely alienable barring an expressed intent otherwise. Note that, however, conveying the servient tenement automatically conveys the easement, either express or implied.

Question 8

What is the minimum number of land tracts necessary for an appurtenant easement?

Answer 8

Two - there must be a dominant estate/tenement and a servient estate/tenement.
This feature is an easy means of distinguishing appurtenant easements from easements in gross; easements in gross involve only one piece of land.

NOTE: In the case of subsequent subdivisions, there may be more than one dominant estate.

Question 9

What is a “servient estate/tenement”?

Answer 9

It is the land which the holder of an easement (the “dominant estate” holder) has the right to use.

Question 10

REMEMBERING “DOMINANT” AND “SERVIENT” TENEMENTS.

Answer 10

A “dominant tenement/estate” is a parcel of land possessed by an individual who enjoys an “easement appurtenant” over a “servient estate” (the land burdened by the easement). The most common kind of easement appurtenant is a right-of-way.

For this image, you have to know that “serviette” is an English word for table napkin.

Mental picture: Imagine a vast field, stretching across the horizon. The left half is entirely covered with dominos (the “dominant estate”). The right half is covered with billowy yellow “serviettes” (the “servient estate”). Imagine a raised path, like St. Louis’ Gateway to the West, rising over the napkins, in gleaming steel. An endless procession of cats is walking from the “domino” side, over the pathway, purring (Purr: appurtenant).

Question 11

What are the requirements for an implied easement?

Answer 11

1. The two pieces of land must have been under common ownership before severance;
2. Use of one part of the land by another part must have been apparent;
3. And continuous;
4. The use must be reasonably necessary for the enjoyment of the dominant estate.

MNEMONIC: COCAiNE: (Common Ownership; Continuous; Apparent; Necessary)

Question 12

Are implied easements considered “easements appurtenant” or “easements in gross”?

Answer 12

They are appurtenant easements, i.e., they are considered annexed to the land. This is so because it was transferring one of two pieces of property, under common ownership, that created the implied easement; thus the easement is inextricably connected with the ownership of land.

Question 13

Must implied easements be in writing to satisfy the Statute of Frauds?

Answer 13

Trick question!!

Implied easements are created by operation of law, not expression of the parties, so they cannot be in writing. An implied easement arises when a tract of land under one owner is divided, and one part of the land had been used for the benefit of the other part. There cannot be an implied easement where there was never common ownership; furthermore, the implied easement arises immediately when the common ownership is severed, unlike an “easement by necessity,” which requires only that the land had been under common ownership at some time in the past.

Question 14

What’s the difference between implied easements known as “implied grants,” and those called “implied reservations”?

Answer 14

If the easement is in favor of the conveyee and appurtenant to the trace conveyed = implied grant; if in favor of the conveyor and appurtenant to tract retained = implied reservation.
REMEMBER: Retain/reservation.

Question 15

What’s the difference between an easement by implied grant (or reservation), and a quasi-easement?

Answer 15

Ownership of the dominant and servient tenements. Before one of the tracts is conveyed, the easement is a quasi-easement; afterwards, it becomes an easement by implied grant or implied reservation, depending on which tract is transferred away.

Question 16

What is an “easement by necessity”?

Answer 16

It is an easement whereby enjoyment of one parcel of land strictly requirs use of another. Typically, one of the plats has no access to a public highway without trespassing on the other plat. The requirements of such an easement are:

1. Common ownership of the dominant and servient estate at some time in the past; and
2. Easement lasts only as long as the necessity does.

Question 17

What are the requirements of a “prescriptive easement” (also known as an “easement by prescription”)?

Answer 17

An easement by prescription requires use of another’s property that is:
1. Actual;
2. Open and notorious;
3. Continuous (during statutory period; at common law, 20 years);
4. Exclusive; (not as a member of the general public – does not mean owner is excluded); and
5. Hostile and adverse (non-permissive).

MNEMONIC: Open EACH (Open; Exclusive; Actual; Continuous; Hostile)

Question 18

An easement by prescription – the right to use land under certain conditions – has a counterpart in the ownership of land. What is it?

Answer 18

Adverse possession. The requirements for the two are the same, requiring actual, open and notorious, continuous, and adverse use (prescriptive easement), or possession(adverse possession), for the statutory period (at common law, 20 years). Note that it’s the exclusivity that distinguishes the two – for an easement by prescription, the owner need not be excluded, it’s just that the use cannot be as a member of the general public; for adverse possession, the adverse possessor must treat the land as his own.

Question 19

What are the seven, general ways an easement can be terminated?

Answer 19

1. Requirement fulfilled (road built, condiion satisfied);
2. Release in writing;
3. Merger of dominant and servient estataes;
4. Abandonment (mere non-use is insufficient; need acts showing clear intent to abandon);
5. Adverse use (servient tenement holder’s use interferes with or prevents easement holder’s use for the statutory period);
6. Servient estate condemned or destroyed;
7. Estoppel.
   (Also, an easement by necessity terminates when the necessity no longer exists).

MNEMONIC: DREAM CAR (Destruction; Requirement; Estoppel; Abandonment; Merger; Condemnation; Adverse use; Release)

Question 20

Cheops and Cleopatra are adjoining landowners. Cleopatra has a luxurious palace with a sun deck, where she likes to sunbathe nude. Cleopatra turns over her priceless string of pearls to Cheops, in return for his agreement not to build on his own land so as to shade Cleopatra’s porch. Is an easement created?

Answer 20

Yes. This is a “negative easement,” wherein a landowner agrees to restrict the use of his land (the servient tenement) for the benefit of another (the dominant tenement).
The counterpart of a “negative” easement is an “affirmative” easement, which is far more common, giving the dominant tenement holder the privilege to use another’s land (the servient tenement/estate).

Question 21

Tarzan owns a heavily-wooded tract of land which abuts a public highway on two sides. He sells Jane half of the land. However, between Jane’s land and the highway is a deep ravine that Jane cannot cross in her jeep; she must either swing across on a handy vine, or drive across Tarzan’s land to get out. Since it’s not impossible for Jane to get out without trespassing on Tarzan’s land, will she be denied an easement by necessity over Tarzan’s property?

Answer 21

No; “necessity” implies substantial impracticability, not absolute impossibility. Since the other requirement for an easement by necessity is met - the two tracts were under common ownership sometime in the past - Jane will have an easement by necessity.

Question 22

Cheops buys a prime lot in the Great Plains Development, ad builds a pyramid on the part nearest the road. He subsequently sell back half of the lot to Khufu, who builds his own pyramid there. Khufu has no access to a main road. Will he be able to cut across Cheops’ property to get to the road?

Answer 22

Yes, under an “easement by necessity”. Khufu fulfills the requirement of the easement because:
1. The dominant and servient estates were formerly under common ownership;
2. Strict necessity exists (Khufu has no other means of getting to a public highway).
NOTE: Common ownership need not have been in the immediate past.

Question 23

Hatfield has a right-of-way over McCoy’s adjacent land. Can Hatfield transfer his right-of-way without transferring any part of his land?

Answer 23

No. A right-of-way is an “easement appurtenant”; it is annexed to the land and cannot be transferred separately from the land.

Question 24

Fred owns a tract of land bounded o one side by a lake, the rear by quicksand, and the other by the Grand Canyon. The remaining side abuts a public highway. Fred sells the rare portion of his land to Barney, who cannot get to the public highway except through Fred’s land. After ten years of cutting across Fred’s property, tourist interest in the Grand Canyon dries up and the government decides to cement it over, giving Barney unlimited access to the rest of the world. Can he still cut across Fred’s property?

Answer 24

No. Barney had an “easement by necessity” - an esement created when a piece of property under common ownership is divided, making, typically, ingress and egress substantially impractical for one of the plots. Here, once the Canyon is filled in, the easement is no longer necessary, so it ceases.
NOTE: There is not an implied easement here, since there is no evidence that, prior to severance use of Fred’s tract by Barney’s tract took place.

Question 25

Bartholomew owns land on the side of a mountain in the town of Didd. Didd’s precipitation falls in the form of “oobleck,” a green, sticky substance which is water soluble. Bartholomew constructs an oobleck collector at the top of his property, and digs a ditch to the bottom, where the oobleck drains into a stream and dissolves harmlessly and washes away. Bartholomew conveys the upper half of the property to King Derwin. Does King Derwin have an easement over Bartholomew’s remaining property?

Answer 25

Yes, the conveyance meets all the requirements of an implied easement by grant:
1. Both pieces of land were formerly under common ownership;
2. While the pieces of land had one owner, the land subsequently kept was used for the benefit of the land transferred away;
3. The use was apparent;
4. The use was continuous (due to the ditch’s permanence and regular use);
5. The easement was reasonably necessary.
Note that if Bartholomew had kept the top half, and conveyed the lower half, the easement would be an implied easement by reservation.

Question 26

Sir Peter, renowned jewel thief, owns a shack next tothe magnificent villa of Chief Inspector Jacques Clouseau. Every night for twenty years Sir Peter dons his blackface and burglar’s garb, and sneaks on all fours, from his shack through Clouseau’s property, to the beach for a midnight swim. Now Sir Peter claims a prescriptive easement over Clouseau’s property. Assuming the statutory period is 20 years, does he have one?

Answer 26

No, beause his use has not been “open and notorius”. Clouseau has not been pton notice that Sir Peter has been using the “path” in derogation of Clouseau’s own interest. Otherwise, Sir Peter might qualify for a prescriptive easement: His use has been actual, continuous for the statutory period, exclusive (i.e., not as a member of the general public), and hostile.

NOTE: Exclusive use does not mean that the owner must be excluded, as long as the use is not as a member of the general public.

Question 27

Dobbs and Smyth own neighboring villas on the Atlantis Island Resort, off Florida. The resort is unique because for ten mnths of the year it is completely submerged under water. During the other two months of the year, all is fun and frolic. Smythe cuts through Dobbs’ property routinely to get to the beach, even though Dobbs” tries to dissuade him from doing so. After this continues for the statutory period, will Smythe be entitled to a prescriptive easement, even though he only uses the path for two months of every year?

Answer 27

Yes, Smythe has probably satisfied the “continuity” requirement of a prescriptive easement. Continuity is a question of fact, taking into account the normal use and characteristics of the land. Here, Smythe makes regular use of the path when it isn’t under water. Otherwise, he fulfills the requirements of a prescriptive easement: His use is actual, open and notorious, exclusive, hostile and adverse.

Question 28

Leonardo and Michelangelo become neighbors in 1550. Leonardo likes to cut through Michelangelo’s yard to get to the Art is Us supply store next door. In 1560, Michelangelo gets tired of Leonardo tromping across his lawn, and so erects a statute of Apollo on the path, completely blocking it. In 1561. Michelangelo decides to rework the statute and moves it back to his studio, leaving the path unobstructed. Assuming a statutory period of fifteen years, and assuming further that all the requirements of a prescriptive easement are met, when will Leonardo’s prescriptive easement mature?

Answer 28

In 1576. A prescriptive easement requires use that is open, exclusive, actual, continuous, hostile and adverse, for the statutory period. When the statutory period is interrupted (e.g., court action, obstruction), it must start over.
NOTE: Mere protest by the servient tenement owner is not sufficient interruption to toll the Statute of Limitations.

Question 29

Anb angry mob tries to storm the Bastille every day for 20 years. They routinely cut through the yard of Veronique Poulette, who lives nearby. This infuriates Veronique, but she is unsuccessful in keeping them off her property. After 20 years, one of lthe protestors, Blacque Jacques Shellacque, claims a prescriptive easement over Veronique’s yard. Assuming the statutory period is 20 years, does he have one?

Answer 29

No, because his use has not been exclusive. A prescriptive easement requires use that is open, exclusive, actual, continuous and hostile, for the statutory period. The exclusivity requirement means that the use must be individual, not as a member of the general public. Note that, however, to be exclusive, the use need not be by the property owner herself.

Question 30

Jefferson and Napoleon are neighbors. Jefferson routinely cut through Napoleon’s property, Louisiana Purchase, on his way to business in California. Napoleon has no problem with this, doffing his tricorn when he sees Jefferson and calling out a merry “Bon jour.” After 20 years, the statutory period, Jefferson claims a prescriptive easement over Louisiana Purchase. Assuming Jefferson’s use has been “exclusive,” does he have one?

Answer 30

Nol, because his use hasn’t been “hostile” or “adverse”, meaning without Napolieon’s consent. A prescriptive easement requires use that is open and notorious, exclusive, actual, continuous, and hostile for statutory period. Here, Napoleon gave Jefferson permission to cut across Louisiana Purchase; as such, Jefferson’s use can never result in a prescriptive easement (as long as Napoleon owns the Louisiana Purchase).

Question 31

Caesar owns the Parthenon. He lets Cleopatra cut through the Parthenon’s grounds to get to the Public Baths. After five years, Caesar sells the Parthenon to Nero, making no mention of Cleopatra’s routine trek through the yard. Nero sees Cleopatra trotting by regularly, and does nothing. If the statutory period is fifteen years, how many years under Nero’s ownership must Cleopatra continue to use the path in order to gain use of the path in a prescriptive easement?

Answer 31

Fifteen. Permissive use ends when the servient tenement is conveyed, unless the new owner expressly allows the use to continue as a personal favor. thus, Cleopatra’s use under Nero’s ownership is “hostile”.

NOTE: “Hostile” or “adverse” use means only that the use is non-permissive, disregarding the rights of the owner; it need not be blatantly combative.

Question 32

Archie owns a house in Manhattan. He lives there for twenty-five years, erecting a solar collector on his roof. The DuPont erects the Empire State Building next door, rendering Archie’s solar collector useless. Archie claims that since the statutory period is fifteen years, he has gained a prescriptive easement of light, and he seeks damages. Is he correct?

Answer 32

No. Archie is seeking a “negative easement’ - forbidding a property owner to do something with his own property - by prescription. Such an easement does not exist, because Archie’s use of sunlight coming across DuPont’s property is not inconsistent with DuPont’s rights, viz. DuPont could not forbid Archie’s use.

Question 33

The Phoenicians, who own the Red Sea, orallly give moses the right to clear a path across the Sea so he can walk back and forth to the land he owns in Israel. At considerable time and expense, Moses completes the spadework for the paved walkway. The Phoenicians deny they gave Moses the right to create a path. Does Moses have an “easement by estoppel,” in states that recognizes such an easement?

Answer 33

Yes; Moss does not have a normal easement because the agreement violates the Statute of Frauds. However Moses’ detrimental reliance makes the easement an “easement by estoppel”, recognized in most states.
Moses’s intrest is an easement instead of a license because of the nature of the right granted, as discerned from the Phoenician’s intentions. Creating a path through the Red Sea is permanent in nature, so that an easement and not a license was apparently intended (since a license is viewed as a transitory right - a personal, generally revocable, right to use another’s property). The easement lasts at least until Moses gets his money’s worth from the improvements. (If it were a license, it would be irrevocable as an “executed license”.)

MINORITY RULE: A state which does not recognize “easement by estoppel” would give Moses a reasonable time to remove his handiwork.

Question 34

Fanie has a prescriptive easement, in the form of a well-worn footpath, over Joanne’s land, so she can get to the public road. Famous film star Rudolf Valentino moves in next door to Joanne, and Fannie starts cutting across the other side of Joanne’s property, so she can catch a glimpse of Rudolf. Joanne seeks to enjoin Fannie’s use of the new shortcut. Can she do so?

Answer 34

Yes. Easements that have a specific location, whether through a writing, an implied easement, or a prescriptive easement, can only be moved via mutual agreement of the dominant (Fannie) and servient (Joanne) tenement holders. (If the location is not specific, the servient tenement holder may choose any reasonable convenient location for it, but once chosen, it cannot be changed.)

Question 35

Chip has an implied easement over Hal’s property, to a main road. At the time the two parcels of land were severed, the easement was a dirt road over which jeeps and tractors traveled. Chip decides to convert his tract into a ranch, Chip’s Buffalo Farm, and he maintains a herd of buffalo. He uses the path over Hal’s land to take the herd out for its daily run Can he be enjoined from doing so?

Answer 35

Yes. Easements can only be used for those activities that were reasonably contemplated when the easement was created. Thus, reasonable and normal changes may be incorporated into the easement, be it written, implied, or prescriptive - but Chip’s use clearly put an unwarranted burden on Hal’s property. Furthermore, the change from non-commercial to commercial use is a sure sign of over-burdening the servient estate.

Question 36

Farmer G.M. Rich and Farmer Shady Gotbucks own neighboring thousand-acre tracts. Farmer Rich erects a fence along what he believes is the boundary line between his and Gotbuck’s properties and begins cultivating money trees. Gotbucks doesn’t realize the mistake, which results in his losing an acre of land, and he begins growing poppies on his property. Once the statutory period has elapsed, will Rich have title to Gotbucks’s acre?

Answer 36

Yes, according to most courts. Adverse possession requires possession that is continuous, hostile, open, exclusive, and notorious for the statutory period. The problem here is the “hostile” requirement. Most courts hold that a mistaken belief as to the actual placement of a boundary line is sufficiently “hostile” for adverse possession.

MINORITY RULE: A few courts would require, here, that Gotbucks show that Rich wouldn’t have erected the fence where he did if he’d known the land he was enclosing wasn’t actually his.

Question 37

Skipper owns beachfront property. Ginger has an easement in the form of a path from her neighboring property to the beach. Gilligan moves into adverse possession of Skipper’s property, and continues his adverse possession for the statutory period, of twenty years. When Gilligan’s title matures, is Giner’s easement extinguished?

Answer 37

No. As an easement holder, Ginger never had an action against Gilligan as possessor. So, unlike Skipper, who had an action in ejectment, the running of the statute has no effect on Giner’s interest.

Question 38

Van Gogh, eccentric painter, owns Arles Place. One day he whacks off his ear and his sole heir, Whatta Waytoo Gogh, has him committed to an insane asylum. Shortly thereafter, Paul Gargoyle moves into adverse possession of Arles Place. Three years later, Van Gogh dies while still institutionalized. If the statutory period is 20 years, and property owners have ten years after a legal disability is lifted in which to bring an action in ejectment, how many years will it be before title matures in Gargoyle?

Answer 38

Ten or thirteen altogether. The legal disability, insanity, was “lifted” when Van Gogh died, so those claiming under him - in this case, Whatta - have ten years in which to eject Gargoyle.

Question 39

Fred Lucky is fourteen years old and in prison when he goes insane. When he is fifteen, his father dies and leaves Fred Albatross Hall, which Sienna Chance immediately takes over as adverse possessor. Fred becomes an adult at eighteen, sane at twenty and is released from prison at twenty-two. If the statutory period is twenty years, and a property owner has five years after the removal of a legal disability in which to bring an action, how many years altogether will Sienna have to be in adverse possession of Albatross Hall before her title matures?

Answer 39

Twelve. When a property owner has multiple legal disabilities, he has the disability extension plus the longest of his disabilities. Here, Fred has the “Big Three” - infancy, imprisonment, and insanity.

NOTE: Even though the statutory period is twenty years, in this case, Sienna gets the title in less time due to the disability statute.

NOTE: Many law students, and some law professors, have difficulty accepting this rule, possibly because it’s counter-intuitive. the rule as applied here comports with the Boyer handbook on Property.

Question 40

Ichabod Crane owns Sleepy Hollow. He lets the headless horseman live there. After three years of this arrangement, Horseman claims the Hollow is his, and threatens to whack off Ichabod’s head if he tries to reenter the premises. If the statutory period is twenty years, how many more years must Headless retain possession to gain title through adverse possession?

Answer 40

Twenty. Although he’d already lived at Sleepy Hollow for three years, the statutory period begins only when his use becomes non-permissive.