§ 32.01 The Easement in Context [508-509]

 

The law recognizes five basic categories of affirmative easements: (1) express easements; (2) easements implied from prior existing use; (3) easements by necessity; (4) prescriptive easements; and (5) irrevocable licenses or “easements by estoppel.”  Certain negative easements are also recognized.

 

§ 32.02 What Is an Easement? [509-511]

 

                        [A]       Easement Defined

 

In general, an affirmative easement is a nonpossessory right to use land in the possession of another.  For example, if A owns an easement that allows her to travel over land owned by B, A holds an affirmative easement.  In contrast, a negative easement entitles an owner to prevent another owner from doing a particular act on the second owner’s land.

 

                        [B]       Easement Terminology

 

In the example above, A’s land that is benefitted by the easement is called the dominant tenement, while B’s land that is burdened by the easement is called the servient tenement.  Every easement is classified as either appurtenant or in gross.  An easement appurtenant benefits the easement holder in his capacity as owner of the dominant tenement.  Conversely, an easement in gross benefits the holder in a personal sense, whether or not he owns particular land.

 

§ 32.03 Express Easements [512-513]

 

An express easement is voluntarily created in a deed, will, or other written instrument.  It may arise either by grant or by reservation.  In order to create an express easement, the writing must identify the parties, manifest an intent to create an easement, describe the affected land, and be signed by the grantor.

 

§ 32.04 Easements Implied from Prior Existing Use [513-517]

 

Three elements are required for an easement implied from prior existing use: (1) severance of title to land held in common ownership; (2) an existing, apparent, and continuous use when severance occurs, and (3) reasonable necessity for the use at time of severance.

 

§ 32.05 Easements by Necessity [517-520]

 

Two elements are generally required for an easement by necessity: (1) severance of title to land held in common ownership; and (2) strict necessity at the time of severance.  Under the majority view, strict necessity exists when the parcel in question has no legal right of access to a public road.  Some courts only require reasonable necessity.

 

§ 32.06 Prescriptive Easements [521-524]

 

In order for a prescriptive easement to arise, the claimant’s use must generally be (1) open and notorious, (2) adverse and under a claim of right, and (3) continuous and uninterrupted for the statutory period.  Adverse possession principles are frequently used in interpreting these elements.

 

§ 32.07 Irrevocable Licenses or “Easements by Estoppel” [525-526]

 

Ordinarily, a license is revocable.  A license that becomes irrevocable, however, becomes the functional equivalent of an easement.  Three elements are necessary to create an irrevocable license: (1) a license; (2) the licensee’s expenditure of substantial money or labor in good faith reliance; and (3) the licensor’s knowledge or reasonable expectation that reliance will occur.

 

§ 32.08 Other Types of Easements [527]

 

In addition, an easement may be implied from a subdivision map or plat, may be created through eminent domain, and may arise by implied dedication.

 

§ 32.09 Scope of Easements [527-530]

 

The scope of an easement may evolve over time as the manner, frequency, and intensity of use change.  In general, the scope of an easement turns on the intent of the parties.  The law usually presumes that the parties to an express or implied easement intended that the easement holder would be entitled to do anything reasonably necessary for the full enjoyment of the easement, absent evidence to the contrary.

 

§ 32.10 Transfer of Easements [530-531]

 

Any transfer of title of the dominant tenement also automatically transfers the benefit of an appurtenant easement, absent an agreement to the contrary.  The law governing the transfer of easements in gross, in contrast, is more complex.  In some states, an easement in gross is transferable only if it is for a commercial purpose (e.g., a railroad easement).  In other states, any easement in gross is freely transferable, unless the original parties had a contrary intent.

 

§ 32.11 Termination of Easements [531-533]

 

Easements may be terminated in many ways.  For example, an easement is deemed abandoned where the holder both (1) stops using it for a long period and (2) takes other actions that clearly manifest intent to relinquish the easement.  Similarly, just as one may acquire an easement by prescription, the servient owner may terminate an easement by prescription.

 

§ 32.12 Negative Easements [533-534]

 

English law recognized only four negative easements:  those that prevented blocking windows, blocking air that flowed in a defined channel, blocking water that flowed in a defined channel, and removing support from a building.  More recently, solar easements and conservation easements have been authorized by statute in many states.

 

§ 32.13 Licenses [535]

 

A license is an informal permission that allows the licensee to use the land of another for a narrow purpose (e.g., as a spectator at a football game).  A license may be created orally, but may generally be revoked at any time.

 

§ 32.14 Profits a Prendre [535]

 

The profit a prendre is the right to enter the land of another and remove timber, minerals, gravel, game, or other physical substances.