1. Nonposessory interest one person has in the property that another person possesses.
1.1. Right to use another's land for a specific purpose
1.2. Entitles owner of the interest to a limited use or enjoyment of the land in which the interest exsists
1.3. Entitles him to protection as against 3rd persons from interference in such use or enjoyment
1.4. Is not subject to the will of possessor of land
1.5. Is not a normal incident of the possession of any land possessed by the owner of the interest
1.6. Is capable of creation by conveyance
1.7. Most frequently encountered
1.7.1. giving right to travel over another's land
1.7.2. right to place utility lines
1.7.3. railroad tracks
1.8. Easement holder and landowner may both use same area of land, but LO use may not unreasonably interfere with easement holder's use of the easement for it's intended purpose.
2. Terminology
2.1. Gross v. Appurtenant
2.1.1. Easement in Gross
2.1.1.1. Benefits a person
2.1.1.2. Expressly and clearly granted in writing
2.1.2. Easement Apprutenant
2.1.2.1. Benefits owner or possessor of a particular parcel of Land
2.1.2.2. Implicitly conveyed, potentially indefinate
2.2. Servient v. Dominant
2.2.1. Servient Estate
2.2.1.1. Occurs in both Easement in gross and easement appurtenant
2.2.1.2. Land that is burdened by the easement
2.2.2. Dominant Estate
2.2.2.1. Benefited by easement
2.2.2.2. Only in easements appurtenant
2.3. Affirmative v. Negative
2.3.1. Affirmative Easement
2.3.1.1. Gives holder right to go on the land for specific purpose.
2.3.2. Negative
2.3.2.1. Gives the holder the right to prevent servient estate from doing some act on the servient estate
2.3.2.1.1. English Only, unless expressly bargained for or deeded
2.3.2.1.2. Both English and American
2.4. Profit a pendre
2.4.1. right to enter w/o liability for tresespasss and remove natural resources from the land
2.5. License
2.5.1. When a landowner permits another person to use his property but the permission is revockable or terminable at the LO's will.
2.5.1.1. May be implied, usually from conduct or custom
2.5.1.2. An express easement that fails for some technical reason is a license
2.6. Merger
2.6.1. If benefited and burdened estates come under ownership of single person or entity, easement is extinguished
2.6.2. Re-division will not reinstate by operation of law
3. Creation
3.1. Types
3.1.1. Express (Grant or reservation)_
3.1.1.1. Most common are Express Grant
3.1.1.1.1. Created by Deed
3.1.1.1.2. Occurs commonly when only part of land is sold and seller grants easement
3.1.1.2. Express Reservation/Excetption
3.1.1.2.1. Clause in grantee's deed that reserves or excepts an easement
3.1.1.2.2. Used to have special distinctions
3.1.1.2.3. Reservation created easement
3.1.1.2.4. Exception created the property might be subject to an easement
3.1.2. Prescription
3.1.2.1. gained by long continued adverse use
3.1.2.1.1. Must be
3.1.2.2. Use rights rather than possessory rights
3.1.2.2.1. Private
3.1.2.3. Public use of roadway outside of public right of way
3.1.2.3.1. Public
3.1.3. By Estoppel
3.1.3.1. May be ineffective if fails to meet statute of Frauds
3.1.3.1.1. or if no writing at all
3.1.3.1.2. Creates a license, but courts may enforce as easement by estoppel or irrevocable licenses
3.1.3.2. Elements
3.1.3.2.1. Owner of servient estate consents' to dominant estate holder's use
3.1.3.2.2. servient owner knows or should know dominant owner will materially change his position and permissive use will not be revoked
3.1.3.2.3. Dominant estate holder reasonably believes the permission will continue and changes his position by investing in improvements on either estate
3.1.3.3. Requires 3 Elements. If all three are present, servient estate holder cannot deny existance of an equitable easement
3.1.3.3.1. Character of the transaction and relationship B/w parties are critical factors in determining if an easement by estoppel exists
3.1.4. Implied
3.1.4.1. Not favored, strictly construed, but may be create using 2 circumstances w/o writing or bargain struck b/w estate owners
3.1.4.1.1. land transactions carving one parcel out of a larger property
3.1.4.1.2. larger property landlocked
3.1.4.2. Implied from prior Use (apparent)
3.1.4.2.1. All of the following must be present for an easement implied from prior use
3.1.4.3. Implied by necessity
3.1.4.3.1. It is an easement implied for ingress and egress, establishing a right of way for land locked property
3.1.4.3.2. If seeking, must show the easement is strictly necessary
3.1.4.3.3. Generally, servient estate owner has the opportunity to locate the easement
3.2. Statute of Frauds
4. Assign-ability of
4.1. Appurtenatnt
4.1.1. Automatically pass to the successor of in interest of the dominant estate if
4.1.1.1. original parties intended the benefit and burden to run
4.1.1.2. Burdened party has notice
4.2. Gross
4.2.1. May or may not be assigned depending on parties' intent
4.2.1.1. Generally personal easements in gross are not assignable
5. Divisibility/expansion
5.1. Generally neither type (gross or appurtenant) can be expanded. To materially increase the burden beyond the original intent
5.1.1. Prescriptions are hardest to expand
5.1.2. Easements of way generally do not allow dominant tenant to install utilities
5.1.3. Parties less likely to intend division of easement in gross
5.2. Modernly Easements in gross may be divided unless contrary to intent of parties creating easement or unelss the division would overburden the servient estate
5.2.1. As such, may be divided and used independently, assuming it isn't contrary to party intent at creation.
5.2.2. Exception
5.2.2.1. Personal recreational rights.
6. Scope
6.1. Scope deliniates the extend of us an easement holder may make of the servient estate.
6.1.1. Make such use of the easement reasonably necessary for the enjoyment of the dominant estate and not unreasonably burdensome to the servient estate.
6.2. Location:
6.2.1. Must be identified and described at the inception of the easement
6.2.1.1. Most jurisdictions state that once located an easement is forever located, absent agreement from both estate holders.
6.2.1.1.1. A servient estate may move at servient's expense, as long as it ideosn't inconvenience the dominant estate owner or easement holder's use
6.2.1.2. To unilaterally change the location constitutes misuse of the estate
6.2.2. Once established, must remain in located easement, to venture out of easement space is trespass
6.3. Intensity of Use
6.3.1. If specified, any terms listed will control the easement's use
6.3.2. Generally can use as long as the use doesn't overburden the servient estate
6.4. No benefit allowed to the nondominant property
6.4.1. May only benefit the dominant estate
6.4.2. cannot benefit the adjoining property
6.4.3. any extension is misuse
6.5. Improvements, Maintenance, Repair
6.5.1. Holder has right to improve as long as the improvements promote use of the easement and do not unreasonably burden the servient estate
6.5.2. Creates a duty to repair and maintain by the dominant estate holder.
7. Termination
7.1. Occurs by the following Methods
7.1.1. Terms of the grant
7.1.2. Purpose for the easement ends
7.1.3. merger
7.1.4. forfeiture for misuse
7.1.5. Release
7.1.6. Abandonment
7.1.7. Estoppel
7.1.8. Prescription
7.1.9. Recording Acts
7.1.10. Eminent Domain