*Servitudes – Right to Use Land of Another: Easements (Positive Easements)

Question 1

Appurtenant

Answer 1

• Easement benefits a parcel of land that is adjacent (e.g. Blackacre gets right of way to walk over Whiteacre)
o Easement travels with the land

Question 2

• Dominant tenement:

Answer 2

benefitted parcel

Question 3

• Servient tenement:

Answer 3

parcel subject to the easement (burdened)

Question 4

• Cushman Virginia Corp. v. Barnes – VA (1963)

Answer 4

o F: P is developing real estate; subdivision needs access to road; historical easement appurtenant exists; D argues that easement was abandoned
o H: For P; but scope of the easement is fixed by original conveyance (original language controls), extrinsic evidence allowed only when there is ambiguity
 Easement not abandoned – abandonment needs intention to relinquish (not mere nonuse)
 Easement is attached to the land, so even though it is not in P’s deed, it is transferred to P (when deed silent on easement appurtenant, it automatically transfers)
 Easement will be 10-15ft (same size as original easement; P wants larger but court rejects)
 More people are using the easement, but they are using it for the same purpose (fundamental purpose hasn’t changed)
 Servient tenement must accept reasonable technological changes (e.g. from wagons to tractors/cars, here)  tech. change does not constitute expanding scope of easement

Question 5

In Gross

Answer 5

• Personal to the easement holder; easement is not attached to the land but is instead granting some value to the owner
• Generally non-transferrable (exception for commercial uses)

Question 6

• Miller v. Lutheran Conference & Camp Association – PA (1938)

Answer 6

o F: Mill bros create man-made lake and form ice company; company transfers to Frank and heirs/assigns easement in gross to fish and boat; Frank transfers quarter of his interest to Rufus (also with swimming rights included – but Frank never owned); Rufus dies, estate grants swimming license; Frank sues b/c of the distribution of additional swimming rights
o I: Transfer breaks the “one stock” rule – easement in gross can only be subdivided with the consent of all the parties to it; when Rufus starts licensing rights w/o P’s consent, one stock rule is violated
o H: For P

Question 7

Creation of Easements-

• Express:

Answer 7

easement can show up in documents that are not exclusively deeds of easement (e.g. in deeds of transfer)
• Easements can also come into existence without writing/intention by necessity/implication and prescription

Question 8

Creation of Easements-

• Easement of necessity

Answer 8

o Need access to land (3x3 lot example – center lot needs access to road)
o Limited by reasonableness requirement
o Narrow scope – automatically terminate upon end of necessity
o If deed is silent, easement by implication (anyone who would agree to purchase would only do so with understanding that they could access the lot)

Question 9

Creation of Easements-

• Prescriptive Easement

Answer 9

similar to adverse possession
o Elements: open, notorious, continuous use, adverse, for X period
 During this use, the property owner has the right to bring a trespass action, but that right lapses after a certain period of time (like the adverse possession period)

Question 10

o Hellberg v. Coffin Sheep Co. – WA (1965)

Answer 10

 F: P has 10 yr lease from D, to buy at end of term; P relies on Old Coffin Road for access to public highway; D locks gate to access road and P sues
 H: For P; easement of necessity arose when land was divided and transferred
• Road access issue not addressed in the lease
• Implied dedication – can give part of land voluntarily in exchange for development
• Don’t need condemnation for easement of necessity
o Listed elements for implied: former unity of title during which time right of permanent user was, by obvious and manifest use, impressed upon one part of the estate; separation by grant of the dominant tenement; reasonable necessity for easement in order to secure/maintain quiet enjoyment of dominant tenement (Hellberg)

Question 11

o MacDonald Properties v. Bel-Air Country Club – CA (1977)

Answer 11

 F: Building restrictions by D on P; prescriptive easement granted to D (golf balls can fall on P’s property) – reciprocal conveyances from original owners
 H: For D
• “continuous use of an easement over a long period of time without the landowner’s interference is presumptive evidence of its existence”
o D’s use of P’s property for rough on 6th hole existed for 40 years and was well known by P
o Statutory period here was 5 years
• P here could have gone to golf course, licensed the use and retained the right to revoke access (license instead of easement)
o Public prescriptive easement (continuous use of some land by general public) – generally not recognized by American courts; though some have been more receptive in recent years

Question 12

Termination of Easements

Answer 12

• Presumed to be of infinite duration unless explicitly limited by time; similar to FSA

Question 13

• Preseault v. United States – Fed Cir. (1996)

Answer 13

o I: Does conversion of railroad right of way (unused) to public trail for hiking amount to a taking under the federal Rails to Trails Act?
o H: Yes, taking
 Rights acquired by RR in 1899
 P argues that current use is outside the scope of the easement and that the easement was abandoned in 1975 (when RR use ceased)
• When easement abandoned, it fully disappears
 Abandonment - dominant tenement conclusively and unequivocally manifests either a present intent to relinquish the easement or a purpose inconsistent with its future existence (need more than just non-use)
• Said this was manifested here b/c state leased easement for 30 yrs (to non-RR); there was no indication that service would ever be restored

Question 14

• Modes to terminate easement:

Answer 14

(MEND CRAP)
o By terms
o Merger – similar to merger concept from present/future interests; same person acquires servient and dominant tenement  easement extinguished
o Estoppel – servient user acts in reasonable reliance on easement holder’s assurance that the easement will no longer be enforced
o Necessity (lack of necessity–>applies only to easements by necessity)
o Destruction of the servient estate

o Condemnation of the servient tenement – if servient tenement condemned for purposes of eminent domain, then easement is extinguished
 Just compensation will be divided between servient tenement estate holder and the easement/dominant tenement owner
o Release – easement is extinguished when the easement holder voluntarily relinquishes it. (must be in writing b/c statute of frauds)
o Abandonment- not just non-use–>needs intent!
o Prescription – similar to adverse possession; can terminate the easement by hostile activity
 Ex: B builds wall along the property, making it impossible for A to use right of way across B’s property; if A doesn’t demand removal of wall during prescriptive period, then the easement is extinguished