Express Easement – Voluntarily created by the parties

 majority of easements are express easements.

 They are voluntarily created by the affected parties, the servient landowner, and either the
dominant landowner (if an easement appurtenant) or the benefited person (if an easement in
gross)
 easements create interests in the servient (burdened) land
 subject to the Statute of Frauds
o parties intending to create easements must do so in a writing signed by the grantor
o grantor is the owner of the servient estate
o The owner of the dominant estate or the person to be benefited is not required to sign
the writing.
 SOF Requires
o identification of the grantor (owner of the servient estate)
o identification of the grantee (the dominant estate if an easement appurtenant or the
individual intended to have the benefit of the use of the servient estate if an easement
in gross)
o the intention to create the easement
o identification of the servient land
 TYPES OF WRITTEN INSTUMENTS IN WICH EASEMENTS ARE CREATED
o Deed of Land - In which an easement is granted or reserved
 Most Common - owner of a parcel of land selling a portion of that parcel
 Only when she divides the land and transfers title to one portion of it by deed
does the necessity for an easement arise
 Two types created of easements created in this scenario
o Easements by grant (Unger)
 grantee who wishes to make some use of the grantor’s
land
 The law speaks of an easement given to the grantee
over the grantor’s land as an “express easement by
grant.”
o Easements by reservation (Shelia)
 will convey the parcel to the new owner and will
“reserve” an easement over that parcel for the benefit
of his retained parcel. Selling but reserving use of path
on the parcel to be conveyed
 law speaks of an easement reserved by the grantor
over the grantee’s land as an “express easement by
reservation.”
 Example: the one instance in which an easement is
created in an instrument that is not signed by the
grantor of the easement. (In this instance, Sheila is the
grantor of the easement across her land and Unger is
 the grantee. However, Unger is the grantor of Parcel 3
and Sheila is the grantee).
o Deed of Easement
 Used when the easement is to be created over the land in a “stand alone”
transaction
 Created to satisfy SOF

Reservation of Easements in Favor of a Third Party -- Split of Authority

 traditional rule - forbidding such reservations

o Most States follow
 California Allows
 NY Traditional

Easements Implied - from Prior Existing Use

 Quasi-Easement
o landowner cannot have an easement over his own land
 By definition, an easement is an interest in the land of another
o Use continues to be labeled a quasi-easement until the quasi-servient parcel (the
portion over which the quasi-easement runs) or the quasi-dominant parcel (the portion
benefited by the quasi-easement) is transferred to a new owner, or both are
simultaneously transferred to different owners.
 It is when such a transfer occurs that the issue of an implied easement from
prior existing use arises.
o CIRCUMSTANCES REQUIRED FOR IMPLICATION OF AN EASEMENT FROM PRIOR
EXISTING USE
 The common owner might transfer the entire parcel. In such a case, the new
owner would own both the benefited and burdened parcels and the quasi-
easement would presumedly continue.
 The common owner might transfer only one part of her land.
 If the transferred part is the benefited parcel, the owner would be transferring
the dominant parcel or estate.
 If the transferred part is the burdened parcel, the owner would be transferring
the servient parcel or estate.
 The common owner might transfer all of her estate but divide it at the time of
transfer between two or more grantees. In such a case, the transfer of the
burdened and benefited parcels would occur simultaneously.
o RULE: When an owner has used his land in a manner that creates a quasi-easement and
then conveys either the quasi-dominant or quasi-servient parcel (or both), the law is
concerned with the intention of the parties to the conveyance. Specifically, what was
the intention of the parties regarding the continuation of the prior existing use?
 general rule, the parties will be presumed to have intended the continuation of
any use that is reasonably necessary and beneficial to the dominant parcel.
Implied Easements from Prior Existing Use by Grant or Reservation

 An implied easement by grant arises when the common owner first transfers the dominant
parcel and retains the servient parcel.
 An implied easement by reservation arises when the common owner first transfers the servient
parcel and retains the dominant parcel.
o less likely to be recognized
o have to show a greater necessity
 strict necessity
 will be recognized only where the grantor has no other way of gaining
the service (in the case of utilities) or access (in the case of a road).
 UNLESS, the owner of Parcel 2 desires to build on that parcel and connect to the
sewer pipe, in essence becoming a dominant parcel holder as to Parcel 1, the
courts will normally allow him to do so. This would become an implied
easement from prior existing use by grant.

SERVITUDES
The Restatement Third
The Restatement Third of Property: Servitudes § 2.12 provides:
Unless a contrary intent is expressed or implied, the circumstance that prior to a
conveyance severing the ownership of land into two or more parts, a use was made of
one part for the benefit of another, implies that a servitude was created to continue the
prior use if, at the time of the severance, the parties had reasonable grounds to expect
that the conveyance would not terminate the right to continue the prior use.
The following factors tend to establish that the parties had reasonable grounds to
expect that the conveyance would not terminate the right to continue the prior use:
(1) the prior use was not merely temporary or casual, and
(2) continuation of the prior use was reasonably necessary to enjoyment of the parcel,
estate, or interest previously benefited by the use, and
(3) existence of the prior use was apparent or known to the parties, or
(4) the prior use was for underground utilities serving either parcel.

Implied easements of necessity

 Arise when, as a result of an owner of land transferring part of his land, either the transferred
part or the retained part is landlocked such that the owner of that parcel cannot gain access to
it.
o completely surrounded by land she does not own
o landowners are not legally obliged to give permission to access
o f D has neglected to protect herself by failing to secure an express easement over Parcel
1, the law may nonetheless imply an easement in D's favor.
 Implied easement of necessity is occasionally referred to as an implied easement of access
o solely for the purpose of permitting access to landlocked land

 The Circumstances Required for Implication of the Easement of

Necessity.
o The law requires that three circumstances be present for the
implication of an easement of necessity.
 1.) prior common ownership of the dominant and servient
parcels;
 2.) severance of the common ownership; and
 3.) necessity for access off landlocked land at the time of
severance.
 Prior Common Ownership (first Element)
o Because an easement of necessity involves access over one parcel to a
landlocked parcel owned by another, easements of necessity are never
easements in gross.
o Note that the common ownership requirement means that an
easement of necessity will not be implied over land of other
landowners
o in most jurisdictions she will not be given an easement of necessity
over the other owners' lands, even if it would be more convenient and
less costly
o some states, statutes exist that permit the judicial creation of
easements over the lands of owners who did not previously own the
two parcels
 Severance of the Dominant and Servient Parcels (Second Element)
o common owner transfers either the dominant or the servient parcel to
another
 the common owner transfers the landlocked land, the grantor
retains the servient parcel.
 This is an implied easement of necessity by grant
 If the common owner retains the landlocked parcel, the grantee
is transferred the servient parcel.
 This is an implied easement of necessity by reservation.
 Necessity: The Landlocking of the Servient Parcel
o Some states require absolute or strict necessity
o Absolute or Strict necessity – Completely without access
o Reasonable necessity - need only show that the burden of using other
possible means of access is significantly greater than the limited
burden of implying the easement over the servient parcel
 must show something more than that the easement would be
more convenient to him than other alternatives.
o Timeframe for Accessing Necessity
 necessity must exist at the time of severance of the dominant
and servient parcel
  necessity that arises later will never support the implication of
an easement of necessity over a parcel if that necessity did not
exist at the time of severance
o Continuation of the Implied Easement
 Once the required necessity is shown and the easement is
implied, the easement will exist as long as the necessity exists
 If the necessity ends, the easement ends (although courts
will give the dominant parcel owner a reasonable time to
build an alternate road)
o Statutory Easements of Necessity
 many states have enacted statutes that provide for such
easements of access to unlock landlocked land
 statutes require a showing of
o Necessity
o Pay compensation
o statutory easements do not require prior common
ownership of the dominant and servient estate.
PRESCRIPTIVE EASEMENTS

 A prescriptive easement, or easement by prescription, is an easement that

has, in essence, been adversely possessed. Where the prescriptive
easement being claimed is an easement appurtenant, the "adverse
possession " of the easement is by the dominant landowner or his
predecessors in interest.
o If A has a prescriptive easement over B's lane, it is an easement
appurtenant
 A will own the dominant parcel and B will own the servient
parcel.
o Where the prescriptive easement being claimed is an easement in
gross, the adverse use is made by someone who does not own
adjacent land.
o prescriptive easements do not require common ownership of the
dominant and servient parcels at their inception
o prescriptive easements can arise only when someone other than the
owner of the servient parcel is claiming the easement.
o Prescriptive easements can be gained over virtually any land privately
owned by another.
o easements arising by prescription serve the twin purposes of
rewarding continued use of land by the dominant owner and punishing
neglect by the servient owner.
Acts Required to Support Acquisition of an Easement by Prescription
 A party claiming a prescriptive easement has the burden of proof on all of the
elements necessary to his claim. A majority of jurisdictions hold, however,
that if the claimant establishes uninterrupted, continuous and open use, a
rebuttable presumption arises that the use was adverse.
The elements required to acquire an easement by prescription are:
1.) open and notorious use, which is
2.) adverse to the servient landowner, and is
3.) continuous and uninterrupted
4.) for the required prescriptive period.
The Significance of Exclusive or Non-Exclusive Use
 Most easements are non-exclusive, meaning that both the dominant and
servient landowners may use the land that is subject to the easement. If the
claimant is claiming only a non-exclusive easement, his prescriptive use is
not required to be exclusive.
 The Requirement of Open and Notorious Use
 The requirement of open and notorious use recognizes that the servient
landowner must have had a reasonable opportunity to know of the claimant's
use during the prescriptive period
o When the easement itself is obvious upon a visual inspection
o claimant builds a road or runs an aboveground wire; the requirement
would be easily met.
o If the easement involves an underground pipe or cable. The presence
of such an underground use must be manifested by some aboveground
marking, whether a valve, a small flag or a sign, in order to be open
and notorious
 The Requirement of Adversity
o The requirement of adversity is met when the claimant of an easement
by prescription uses the property of another claiming the right to use
it.
o In most American jurisdictions it is essential to the claim of adversity
that the use be non-permissive, meaning that the claimant is using the
owner's land without his permission.
 The Requirement of Claim of Right
o In every jurisdiction, the claimant of a prescriptive easement must
have claimed the right to use the easement during the prescriptive
period.

 This element focuses on the claimant's state of mind - i.e., his

sense of entitlement to be doing what he is doing. In the
majority of jurisdictions, it is irrelevant whether:

 he thought he was passing over, under or on his own

land,

 he thought he was on the land of another, or

 he didn't know whose land he was crossing as long as he

claimed an entitlement to cross it.
 
What does matter is that the claimant claim the right to
use the easement.
 The Requirement of Uninterrupted Use
o must not have been "interrupted" by the servient landowner.
 landowner must do something more than merely complain or
order the trespasser off the land to constitute an interruption. In
order to interrupt the "adverse" use of his land the owner must
either physically interfere (by blocking it, for example) or by
bringing a successful legal action to terminate the use.
 The Requirement that the Use Be Continuous
o the requirement of continuity demands that the claimant's use be
regular and consistent with the claim that he is making.
o law allows the "tacking" of prescriptive use by successive users if there
is "privity" between them.
 Privity means that there has been a legal transfer of the first
user's interest to the second user. Notice carefully that this
interest must be legally transferred; it cannot be wrongfully
taken by the successor.
 The Length of the Prescriptive Use
o In nearly every jurisdiction, the period of prescriptive use necessary to
support a claim for an easement by prescription is defined by the S
Statute of limitations that governs in the adverse possession context.
Such time periods typically range from five to twenty years.

Licenses Defined

 A license is a freely-revocable mere privilege to come upon the land of another for some narrow
purpose
 licenses occasionally are supported by consideration in the form of payment by the licensee (the
person who seeks the license) to the licensor (the person who grants the privilege to come upon
her land)
o this is not a requirement to creation of a valid license.

 Easements  Licenses

 -create an interest in land  -do not create an interest in land

 -are subject to the Statute of  -are not subject to the Statute of Frauds and
Frauds and therefore must be in therefore may be expressly created by oral
writing agreement

 -are not freely revocable by the  -are freely revocable by the servient landowner
servient landowner
 begin with the language of the writing
o If the parties name what they are creating as a "license," courts will uniformly hold that
a license has been created.
o If the parties denominate the interest an "easement" and the requirements for creation
of an express easement are met, the courts will hold that an easement has been
created.
o Where the language of the writing is not determinative, courts will look to the nature of
the permission given by the writing and examine:
o -the period of time for which the permission is given (the shorter the period of time, the
more likely the parties intended a license rather than an easement);
o -the amount of money paid by the person to whom the permission is given (a relatively
large amount of money paid more strongly suggests an easement);
o - the right of the recipient of the permission to build improvements or exercise control
over the licensor's land (suggesting an easement).
 icenses are generally revocable at the will of the licensor
o These exceptions are:
 1. Estoppel, and
 Easement by Estoppel."
o suggest to courts that the revocability rule will work an undue
hardship
o The Restatement Third of the Law of Property § 2.10 defines the
circumstances in which recognition of an easement by estoppel
from an oral license is appropriate.
 "(1) the owner [of the servient parcel] permitted
another to use [the] land under circumstances in which
it was reasonable to foresee that the user would
substantially change position believing that the
permission would not be revoked, and the user did
substantially change position in reasonable reliance on
that belief; or
 (2) the owner ... represented that the land was
burdened by [an easement] under circumstances in
which it was reasonable to foresee that the person to
whom the representation was made would substantially
change position on the basis of that representation, and
the person did substantially change position in
reasonable reliance on that representation."
o minority of jurisdictions refuse to recognize easements by
estoppel. The policy reasons for this refusal follow that age-old
adage that "ignorance of the law is no excuse."
 2. Licenses Coupled with an Interest
 a license is coupled with an interest when the license holder has a
separate interest in the licensor's land. The coupling of a license with
such an interest will normally arise in one of two situations.
 o First, the licensee has some personal property located on the
licensor's land and needs a continued right to access that
personal property. For example, A has permission to keep his
car in a garage on B's property. B may not revoke A's license to
come upon B's land to gain access to the car.
o Second, the licensee has a profit on the licensor's land and
needs a continued right to come upon the land to "harvest" the
profit. For example, C has the right to extract minerals or timber
from D's land. Coupled with that interest is the right of C to
come upon D's land to extract the minerals. D cannot
unilaterally revoke C's right to cross D's land because to do so
would deny C the right to extract the minerals.
o licenses are presumed to be personal and non-assignable unless the instrument creating
them or the surrounding circumstances make clear the parties' intention to make them
transferrable.
 Just like easements, licenses can be created either to benefit the ownership
of adjacent land, in which case they would be called licenses appurtenant, or
may be given to individuals without reference to their ownership of adjacent
land, in which case they are in gross. Licenses in gross are subject to the
same rules regarding use and misuse as are easements in gross. For further
coverage of this topic, please see CALI's lesson, PPL19, Easements
Appurtenant and in Gross.