Easements

MBEMax wiki article — paired with the Real Property question set on mbemax.com.

One-line summary

An easement is a nonpossessory right to use another's land for a specific purpose; it can be created by grant, implication, necessity, prescription, or estoppel, and it runs with the land only if the requirements for covenants running are met.

Mnemonic

PINGE — the five ways easements are created: Prescription, Implication (prior use), Necessity, Grant (express), Estoppel.

Picture a "PINGE ball" rolling across a neighbor's lawn — each bounce creates a new easement.

Types of easements

• Easement appurtenant — benefits a parcel of land (dominant tenement) and burdens another (servient tenement). Runs with both parcels.
• Easement in gross — benefits a person or entity, not a parcel (utility easements). Commercial easements in gross transfer freely; personal easements in gross traditionally did not, but modern law allows transfer if intent is shown.

Creation of easements

1. Express grant or reservation. Writing that satisfies SOF; often by deed. Reservation in grantor is valid in most states; minority still requires separate instrument.
2. Easement by implication (prior existing use). Elements: (a) common ownership severed, (b) prior, continuous use of the quasi-easement, (c) apparent and continuous use at time of severance, (d) reasonably necessary.
3. Easement by necessity. Elements: (a) common ownership severed, (b) necessity at the time of severance (landlocked parcel). Ends when necessity ends.
4. Easement by prescription. Like adverse possession — open, notorious, continuous, adverse, for the statutory period. Exclusivity not required for easements. Permission defeats.
5. Easement by estoppel. Permissive use + foreseeable reliance by substantial expenditures = irrevocable "easement" (restatement treats as irrevocable license).

Scope

• Scope limited to purpose at creation unless instrument says otherwise.
• Incidental expansion okay if consistent with original purpose; material expansion (new, higher-intensity use) is misuse.
• Dominant tenant bears maintenance costs unless otherwise agreed.

Termination

1. Release — written, satisfies SOF.
2. Merger — dominant and servient tenements acquired by same owner. Later severance does NOT revive.
3. Abandonment — nonuse alone insufficient; must combine with affirmative act showing intent to abandon.
4. Estoppel — servient owner reasonably relies on statement/conduct of dominant owner.
5. Prescription — blocking use for statutory period.
6. Necessity ends — easement-by-necessity expires when alternative access arises.
7. Condemnation — eminent domain, with compensation typically split.
8. Destruction — structure on which easement depends destroyed (non-fault).

NCBE loves to test

• Implication vs. necessity. Implication needs prior use; necessity just needs strict necessity. Both require common ownership severed.
• Recording and BFP. Express easement not recorded: unrecorded against a later BFP (inquiry notice from visible use can defeat BFP status).
• Transfer of easements in gross. Commercial freely transferrable; personal (traditionally) not — but modern intent-based analysis prevails.
• Scope misuse remedies. Injunction is typical; damages for overburdening. Termination is extreme and reserved for severe, repeated misuse.
• Easement by necessity — strict vs. reasonable. Easement by necessity requires strict necessity at severance; implication by prior use requires only reasonable necessity.
• Profit à prendre. Right to enter and remove something (timber, minerals). Treated like easement for most purposes.
• Affirmative vs. negative easements. Affirmative = right to do something on servient land. Negative = right to prevent servient owner from doing something (light, air, support, artificial stream). Negative easements generally require express written grant and are narrowly recognized.

Fast hypos

Hypo 1. O owns Blackacre and Whiteacre as one parcel with a visible driveway running across Whiteacre to the road. O conveys Blackacre to A. Easement by implication — prior, apparent, continuous use, reasonable necessity satisfied.

Hypo 2. O conveys the back half of her farm to B, leaving it landlocked. Deed silent. Easement by necessity over retained front half — exists as long as necessity lasts.

Hypo 3. Neighbor uses a path across owner's land every weekend for 25 years without permission. Statutory period is 20 years. Easement by prescription — open, notorious, continuous, adverse.

Hypo 4. Utility easement in gross granted to power company. Power company assigns to successor utility. Validity? Commercial easement in gross — freely transferrable.

Case anchors

• Van Sandt v. Royster, 83 P.2d 698 (Kan. 1938) — easement by implication from prior use.
• Othen v. Rosier, 226 S.W.2d 622 (Tex. 1950) — easement by necessity elements.
• Finn v. Williams, 33 N.E.2d 226 (Ill. 1941) — necessity can arise long after severance.
• Brown v. Voss, 715 P.2d 514 (Wash. 1986) — misuse by extending easement benefit to non-dominant parcels.
• Presault v. United States, 100 F.3d 1525 (Fed. Cir. 1996) — abandonment and rails-to-trails conversion.

See also

• Landlord–Tenant
• Adverse Possession
• Recording Acts
• Covenants and Equitable Servitudes

Sources

Restatement (Third) of Property: Servitudes §§ 1.1–1.6, 2.1–2.17, 4.1–4.13, 7.1–7.11; Van Sandt v. Royster, 83 P.2d 698 (Kan. 1938); Othen v. Rosier, 226 S.W.2d 622 (Tex. 1950); Brown v. Voss, 715 P.2d 514 (Wash. 1986); Finn v. Williams, 33 N.E.2d 226 (Ill. 1941).