Easements Defined
Permanent, nonpossessory right to use land in certain way/for certain purpose
Types of Easements
Express, By Necessity, By Implication from Prior Use, By Prescription, By Estoppel, By Public Dedication(Not tested).
Express Easement Defined
Express agreement b/w the Dominant and Servient tenants to create an easement.
Express Easement Elements
- Must be in writing (SoF).
- Specify the material terms:
a. Parties (name and signature)
b. Property involved (servient estate and dominant estate if appurtenant)
c. Use allowed under the easement.
Willard v. First Church: The primary objective in construing a conveyance is to. . .
Try to give effect to the intent of the grantor.
Grantor’s intent controls
Easement by Necessity defined
Arise where an owner severs a landlocked portion of his property by conveying such parcel to another.
Easements by Necessity are created by. . .
An operation of law. They exist only as long as the necessity exists.
Easements by Necessity: Elements
- Unity of title
- Severance of Dominant estate into landlocked condition
- Necessity
Easements by Necessity: Unity of Title
Common ownership of the two parcels prior to severance
Easements by Necessity: Necessity
- Now landlocked parcel cannot access a public roadway from his/her property. Travel across the servant estate in order to access the dominant estate.
- When the necessity ends, the easement is terminated.
Easements by Necessity: Schwab v. Timmons
A grantor is not landlocked when he/she has difficulty getting from his/her land to a public road as long as they can get from their land to a public road.
Easements by Implication from Prior Use: Elements
- Common ownership of a unified parcel; AND
- Separation into two parcels; AND
- A use that was taking place before the separation; AND
- Use was obvious; AND
- Use was for so long that it was meant to continue after separation.
Easements by Implication from Prior Use are created by. . .
An operation of law.
Easements by Prescription are created by. . .
An operation of law
Easements by Prescription gives the right of . . .
USE ONLY. Not possession or title.
Easements by Prescription: Elements
- Adverse Use
- Hostile
- Open and Notorious
- Continuous for period of prescription
Easements by Prescription: Adverse Use
- Against the interest of the true owner
- Get to use it exclusively.
- Use would be inconsistent with true owner’s rights.
Easements by Prescription: Hostile
- Owner allows use even though permission has not been given.
- If permission is given, use is no longer hostile.
- Silence is not permission.
Easements by Prescription: Continuous for Period of Prescription
Follows the Statute of Limitations for that jurisdiction.
Easement by Estoppel: Equitable in Nature
- Court of Equity, not Courts of Law.
2. To create an easement in order to do justice.
Easement by Estoppel: Involves an Estoppel
- Preventing a change of position
- A negative easement does not bestow upon the owner of the dominant tract the right to travel physically upon the servient estate, but rather requires that the owner of the servient estate refrain from undertaking certain activities on the servient estate which the owner would otherwise be entitled to perform.
Easement by Estoppel: Estoppel arising from a Misrepresentation
- Some kind of misrepresentation
- Reliance
- Reliance is justifiable/reasonable
- Reliance is detrimental
- Unjust result if easement not imposed
Easement by Estoppel: Negative Easement
- Does not bestow upon the owner of the dominant tract the right to travel physically upon the servient estate; but rather
- Requires that the owner of the servient estate refrain from undertaking certain activities on the servient estate which the owner would otherwise be entitled to perform.
