Private Land Use Controls: Servitudes

Question 1

Types of Servitudes

Answer 1

easements and covenants

Question 2

Servitude definition

Answer 2

Interests in land created by an agreement and provide mutual benefits and burdens of the parcel

Question 3

Easement

Answer 3

An interest in real property that gives one person the right to use another person’s land for some specified purpose

Question 4

Easement in gross

Answer 4

does not benefit any land, and involves no dominant estate, only a servient estate

Alienable or unalienable

Do not attach to any parcel of land owned by the easement owner (benefits individual or entity not piece of land)

Example: railroad company coming in to cross both back and front lot properties

Question 5

Easement appurtenant

Answer 5

Example in slides: the actual road used

Burdens one person and benefits the person bringing forth

Requires: dominant tenement (or estate which benefits) [back lot in slides] and servient tenement [front lot in slides, burdened]

The easement attaches to and benefits dominant tenement

Usually transferrable

Transfers to successive owners

If not clear which it is this

Question 6

Willard

Answer 6

Rule: A grantor may reserve an interest in the land to be granted, for use by a third party. (minority)

Facts:

Appurtenant

Willard filed an action for quiet title for a lot against the church (declaratory action)

Mcguigan owned two side by side lots across the street from the church where she was a member (19 and 20)

She allowed them to use lot 20 for parking for the services

She eventually sold 19 to Peterson who later decided to sell the lot and listed the property with realtor Willard

Willard wanted to buy both (19 and 20 lots) and Petersen delivered deed for both lots in fee simple (at the time P did not own 20 so he went to mcguigan with an offer to purchase it)

She said she would sell if it was still used for parking for the church (used church attorney and easement added) and Petersen recorded the deed

When Willard recorded, he did not mention the easement

Willard found out about the easement bringing the lawsuit

Mcguigan said she would not have sold it if it was not used for that purpose

PH: trial court ruled in favor of the Willards (court said it went against common law rule that grantor cannot reserve an interest for a third party)

Holding:

Third party interest is valid in a deed if the reservation was the clearly discernible intent of the grantor

The common law rule: Kentucky and Oregon had abandoned it because it was a limitation and the primary purpose should be to give effect to the grantor’s intent and this could frustrate the intent of the grantor so California would also abandon it

Considered equity and public policy and Mcguigan’s intent should be honored (it was clear she wanted the parking to stay so clause was valid and enforceable)

Ruled for church

Question 7

Mund (implication/estoppel)

Answer 7

Rule: A license that is based on an oral promise becomes irrevocable when the licensee makes valuable improvements to land on the basis of the promise.

Facts:

Family dispute over ownership of a well

Plaintiffs are son and daughter in law of the defendant

Plaintiffs and defendant and deceased husband of defendant purchased adjoining one acre parcels, in that year water was drilled on defendant’s property (equipment and pipes were installed so both plaintiff and defendant could access the water)

Plaintiffs contend that from the beginning their interest was permanent and irrevocable

Defendant claims that their interest was not permanent and subject to certain conditions (it’s a license not an easement)
PH: trial court found for defendant

Holding:

Complainants say it goes against statute of frauds

Court agrees but:

No. A license that is based on an oral promise becomes irrevocable when the licensee makes valuable improvements to land on the basis of the promise. This arises not because the parties agreed to make the license irrevocable, but because an injustice would result if the license could be revoked. This is an exception to the general rule that oral licenses may be revoked by the licensor at any time. In this case, there is no written evidence of the intent of the parties at the time of the agreement, but their conduct suggests that they intended for a permanent arrangement. Both parties cooperated in building the well, and have continued to share expenses in operating it. Most significantly, the plaintiffs built a residence on their property in reliance on continuing to be able to withdraw water from the well. These factors demonstrate that the plaintiffs believed they had a permanent arrangement and relied on having a permanent arrangement. Accordingly, the judgment of the trial court is reversed, and the case is remanded for an injunction granting the plaintiffs a one-half interest in the well and water system and an easement allowing plaintiffs to access the water system.

their conduct was not fraudulent

An easement by estoppel can be created without writing when:

A valid license was given

On which licensee relied

It would be unfair to permit revocation

Question 8

Difference between license and easement (mund)

Answer 8

easement is property interest license is not

Can revoke license cannot revoke easement

Question 9

How to create easements (4 ways with 2 subfactors)

Answer 9

1. Express (Willard)
2. Prescription/ AP (Mund and Othen)
3. Estoppel (Mund)
4. Implication

-Prior existing use (van sandt)

-Necessity (Othen)

Question 10

License definition

Answer 10

License: oral or written permission that would otherwise be trespass

Question 11

Implication/ Estoppel (mund)
An easement by estoppel can be created without writing when (from license):

Answer 11

A valid license was given

On which licensee relied

It would be unfair to permit revocation

Question 12

Van Sandt

Answer 12

Rule: An easement will be implied in favor of a grantor for sewer pipes running under the grantee’s land, because the grantee is charged with notice, as the existence of such pipes is apparent even if it is not visible.

Facts:

Action was brought to enjoin defendants from using and maintaining an underground lateral sewer drain through and across the plaintiff’s land

Bailey was the owner of 3 lots (19,20, and 4) L-R (Highland avenue ran north and south/Tenth Street running east to west)

City built sewer line across Highland avenue

Bailey made a drain on lot 4 across 19 and 20 and connected to sewer line

In 1904 sold 19 to Johns and 20 to murphy and didn’t reserve easement in the deeds and each of them built a drain for their lots

1936 Van Sandt owned 19 and Royster owned 20 and Gray 4 (none of deeds mentioned drain pipes)

Van Sandt’s basement flooded and demanded Royster and gray stopped draining but they refused so he sued

Van Sandt argued deed did not contain easement

PH: judgement for the defendants, trial court said it was allowed to run through the properties

Holding:

Yes. An easement is a right to use someone else’s land. An owner cannot have an easement in her own property, but the phrase quasi-easement is used when a landowner uses one part of her property to benefit another.

Defendants say that an easement was created by implied reservation on the severance from the servient from the dominant from Bailey to Jones

Necessity includes cases where the property could be used without the easement, but only with difficulty and expense. If the usage of the easement was apparent, that supports the claim that the easement exists. Moreover, the fact that pipes are buried and not visible does not mean that the easement is not apparent. Here, the easement for the pipe was necessary for the use and enjoyment of the other parcels. Jones knew about the pipe when he bought the land. Van Sandt conducted a thorough inspection before he bought the house. Van Sandt saw the modern plumbing and knew the lines had to drain into a sewer. The easement was apparent, and Van Sandt is charged with knowledge of it. The trial court’s judgment is affirmed.

Question 13

Elements for the creation of an easement by implication because of a prior existing use (quasi-easement) Van Sandt

Answer 13

Severance of title to land initially undivided

An apparent, existing, and continuing use of one parcel at the time of the severance and

Reasonable necessity for the use at the time of severance

Question 14

Othen v. Royster

Answer 14

Facts: Othen brought suit to enforce a roadway easement on lands of respondents/ Rosier and other defendants claim easement both of necessity and prescription

Land of both parties is a part of tone survey of 2493 acres all of which was formerly owned by one hill

Rosiers own tracts of 100 and 16 acres over which Othen claims an easement

On west side of rosier’s 100 acres is a highway running north and south

Othen’s own 60 acres and 53 acres to the east of and contigous to the rosier’s land

Order of events:

Hill conveyed 100 and by mesne conveyance this tract came into hands of the rosiers

Hill conveyed 60 and also by mesne conveyance tract ended up with the othens

The 53 and 16 were conveyed to other purchasers who ended up separately selling them to othen and rosien

Tone survey touches 3 roads but Othen’s land is not contigous to any of them so he must cross someone else’s land to get to them

Eventually, Rosier was concerned that certain water patterns threatened to cause damage to his property, so he constructed a levee to channel the flow. The levee blocked half of the road used by Othen, and rendered the path muddy and unusable. Othen sued Rosier, alleging that Rosier had blocked his right of ingress and egress to and from his farm. Othen asked the court to order Rosier to remove the levee and enjoin Rosier from further depriving Othen of use of the path.

PH:

The trial court found that Othen had an easement of necessity across Rosier’s land, and entered the requested injunction.

The Court of Civil Appeals reversed the trial court, and Othen appealed.

Issue:

(1) Whether an easement of necessity is proven where the purported easement holder cannot state that the easement provided the exclusive means of access to the public road.

(2) Whether an easement by prescription is created where the property owner knew of and tolerated the use of the property by another.

Holding:

(1) No. An easement by necessity is created when the owner of an estate conveys a portion of his land, but needs to reserve for himself the use of part of the conveyed land.

In order to prove an easement by necessity, the purported easement holder must show that, at the time of the conveyance, the easement is necessary for entering and exiting to and from the dominant property.

Here, the evidence failed to show that the easement was “necessary” to reach the land eventually owned by Othen at the time that Hill first conveyed the Rosier land. Although there was evidence that there was no other means of reaching Othen’s land for the past forty years (i.e. since 1900), there was no evidence about the means of reaching the land from the public road in 1896, when the land was conveyed. Thus, Othen failed to prove that he received an easement of necessity.

(2) No. An easement by prescription is obtained under circumstances similar to adverse possession. The purported owner of the easement must make use of the easement in a manner adverse to the actual owner of the land.

If the owner has knowledge and grants consent (actual or implied) to use the land, no easement by prescription can be created. Here, Othen’s actions did not amount to an easement by prescription because all parties had used the land throughout their occupation of the land. Under the circumstances, Othen was merely granted a license to use the land, which cannot ripen to an easement by prescription. The judgment of the appeals court is affirmed.

Question 15

Difference between OTHEN AND vAN sANDT

Answer 15

Strict necessity for necessity instead of just apparent

No other options!

Question 16

elements for implied easement by necessity

Answer 16

There was a unity of ownership between the servient and dominant estate

The alleged easement is a strict necessity not a mere convenience

The necessity existed at the time of the severance of the two estates

Question 17

Merger Doctrine

Answer 17

when dominant and servient merge, the easements are destroyed

example: girl has an easement by implication because of prior existing use over guys property. Girl then purchases guys property. What would happen to the easement? If you own the underlying land the easement loses its purpose

Question 18

questionable merger doctrine divisibility question:
A eventually owns everything so merger doctrine

Then estate equally divides among 5 kids the 5 lots

F got land locked parcel (the center lot)

Answer 18

Easement has to go somewhere but we don’t know where (so we can look to different principles like balancing equity)

-What makes F’s life easiest

-Least burden on servient estate

-Cost

Question 19

Miller v. Lutheran (assignment of easements

Answer 19

Rule of Law

Easements in gross are not divisible without the consent of all parties holding an interest.

Facts

Frank Miller (plaintiff), his brother, Rufus Miller, and others created a corporation to charter a dam for boating, fishing, and skating” which led to the creation of Lake Naomi.

The corporation granted to Frank Miller, his heirs, and his assigns by deed the exclusive right to fish and boat on all the waters of the lake. Frank and Rufus also created a partnership to build and operate boat and bath houses.

Frank granted Rufus a one-fourth interest in the fishing, boating, and bathing rights.

After Rufus died, his heirs began to grant licenses to lakefront property. One such license, given to Lutheran Conference & Camp Association (defendant), permitted Lutheran to boat, bathe, and fish in the lake. Frank sought an injunction to stop Lutheran from using the water for bathing purposes.

Frank argued that he never actually had the ability to transfer bathing rights to Rufus because the bathing rights remained in the corporation’s possession. Frank argued in the alternative that even if Frank had the bathing rights, then the boating, bathing, and fishing privileges were indivisible easements in gross, so Frank could not grant a one-fourth interest to Rufus.

Thus, Frank argued the bathing rights never transferred to Miller or subsequently to Lutheran.

Lutheran countered that Frank and Rufus acquired the bathing rights by prescription, which allowed the rights to be divisible.

PH: The lower court issued Frank’s injunction against Lutheran.

Issue

Are easements in gross divisible without the consent of all parties holding an interest?

Holding and Reasoning (Stern, J.)

No. Easements in gross are not divisible without the consent of all parties holding an interest.

An easement in gross is assignable and divisible, but if divided, all those holding an interest must act as a single entity. Easements in gross can ripen into title by prescription if there is sufficient evidence of systemic use.

In this case, Frank is entitled to an injunction because Rufus’s heirs could not act unilaterally in granting a license to bathing rights.

Lutheran is correct that the corporation’s easement in gross ripened into title to the bathing rights by prescription due to Frank and Rufus’s operation of bath houses. However, the boating, fishing, and bathing rights were nevertheless indivisible.

Frank obtained an easement in gross when the corporation granted him, his heirs, and his assigns fishing and boating rights. In mentioning Frank’s assigns, the corporation intended to grant Frank assignability of the fishing and boating privileges. Frank assigned this grant to Rufus, as is permitted with easements in gross. However, Rufus’s heirs and Frank must enter into licensing agreements as a single entity into order to subdivide the license to others. Thus, the license granted to Lutheran by Rufus’s heirs is invalid because Frank did not consent to the subdivision of the license to Lutheran. Therefore, the judgment of the lower court is affirmed.

Stern layout:

Easement in gross (that don’t run with the land) are made either by:

Direct grants or open and adverse use (easement by prescription)

Can be assignable if grantor intends them to be assignable but can’t be divisible

Original document said Frank could assign (his heirs and assigns forever) but grant did not include bathing rights but nobody objected to it so it was made by prescription to bathe

Question 20

Assignment of easements

Answer 20

Easements pass with owners usually but if it is in gross it may not

Question 21

Restatements and Divisibility (one doctrine and one rule)

Answer 21

-reasonable use doctrine
-one stock rule

Question 22

Reasonable Use Doctrine

Answer 22

Easement co-owners can act unilaterally in assigning/dividing the easement so long as they don’t burden estate beyond their ownership share

Question 22

One stock rule

Answer 22

Easement co owners must act in unison in deciding to assign/divide property

Question 23

Brown v. Voss (scope of easements and remedies)

Answer 23

An owner of a dominant estate can use the easement to access later acquired property if it does not place an additional burden on the servient estate

Rule of Law

Facts

In 1952, the then-owners of Parcel A granted the then-owners of Parcel B a private road easement that was to be used for coming and going to and from Parcel B (dominant) through Parcel A (servient).

Voss (defendant) acquired Parcel A in 1973, and Brown (plaintiff) acquired Parcels B and C in 1977, at different times and from different owners.

The previous owners of Parcel C had nothing to do with the easement relating to Parcel B. Brown (B) desired to build a house on his land straddling Parcels B and C (he bought C also) and began preparations for this endeavor in November 1977. In April 1979, after Brown had spent almost $11,000 preparing to build the house, Voss (A) placed a fence, logs, and a concrete sump on the easement land in order to prevent Brown from further using it.

Brown sued to have the obstructions removed. Voss countersued to prevent Brown from using the easement for access to anything other than Parcel B. (injunctions)

PH: The trial court found that (1) there was no significant increase in the traffic along the easement as a result of Brown’s acquisition of Parcel C; (2) Parcel C would be landlocked if access to it through the easement on Parcel A were prohibited, which would hamper Brown’s enjoyment of his land; and (3) any order prohibiting Brown from using the easement to get to Parcel C would be impractical and unenforceable. The court ruled in favor of Brown and ordered that he be permitted to use the easement to access Parcels B and C. The court of appeals reversed (saying easement cannot be used to benefit another parcel acquired later), and Brown appealed to the Washington Supreme Court.

Issue

Is it an actionable misuse of an easement, intended to grant access to one plot of land, to access a second adjoining plot of land?

Holding and Reasoning (Brachtenbach, J.)

Yes. If an easement appurtenant to land is granted for a specific purpose, it is a misuse of that easement to use it for any other purpose. If one estate is burdened for the benefit of another estate, that benefit may not be unilaterally extended to another estate.

Here, the easement across Parcel A was granted with the purpose of permitting ingress and egress to and from Parcel B, but not Parcel C. Brown may not use the existing easement to benefit Parcel C if the express terms of the grant do not address it. Brown intended to use the easement to get to a house of which half sits on Parcel C, which is in violation of the terms of the easement grant. However, the trial court has the equitable power to decide the appropriate relief and has the prerogative to make findings of fact that appeals courts are ill equipped to second guess.

Here, the evidence suggested, and the trial court found, that the burden on the easement was not substantially increased by the proposed use, that Brown acted reasonably in developing his property, and that Voss sat by for over a year while Brown spent substantial money on the process of constructing a house. The trial court also found that Voss would suffer no appreciable harm from the continued use of the easement while Brown would suffer significant harm from not being able to access Parcel C by going through Parcel A. Because these findings are appropriate, the Appellate Division should not have overturned them. The Appellate Division’s judgment is reversed, and the trial court’s judgment is reinstated.

Question 24

General Rule regarding appropriate use of easements appurtenant:

Answer 24

“An easement appurtenant to one parcel of land may not be extended by
the owner of the dominant estate to other parcels owned by him, to which
the easement is not appurtenant.”

Brown v. voss shows departure from this rule by balancing equities