Easements

Elements

To establish an express easement:

1. Writing satisfying the Statute of Frauds (unless implied, prescriptive, or by estoppel)
2. Intent to create an easement (not merely a license or permission)
3. Definite description of the servient parcel and the scope of permitted use
4. Delivery and acceptance

To establish a prescriptive easement:

1. Open and notorious use
2. Continuous use (consistent with the type of right claimed) for the prescriptive period
3. Adverse (non-permissive) use under claim of right
4. Actual use (exclusivity not required in most states)

Rule

An easement is an interest in land (not a contract) that grants the holder the right to use another’s land for a specific purpose. Unlike a license, an easement is not revocable at will by the servient landowner.

Elements

To establish an express easement, plaintiff must show:

1. Writing satisfying the Statute of Frauds (unless implied, prescriptive, or by estoppel)
2. Intent to create an easement interest (not merely a license or permission)
3. Definite description of the servient parcel and the scope of permitted use
4. Delivery and acceptance

For prescriptive easement specifically:

1. Open and notorious use
2. Continuous use (consistent with the type of right claimed) for the prescriptive period
3. Adverse (non-permissive) use under claim of right
4. Actual use (need not be exclusive)

Types

By Benefit

• Appurtenant: attached to ownership of dominant estate; transfers automatically with the dominant estate; requires two parcels (dominant and servient)
• In gross: attached to the person, not to land ownership; personal right (e.g., billboard easement, utility easement); may be transferred if commercial

By Scope

• Positive: permits the holder to do something on the servient land (e.g., right to cross)
• Negative: prevents the servient owner from doing something (e.g., blocking light or view); courts are hostile; limited to: light, air flow, lateral/subjacent support, and artificial stream flow (traditional); solar collectors and views (U.S.)

Methods of Creation

1. Express Grant/Agreement

• Must satisfy the Statute of Frauds: writing, signed, identify grantor/grantee, manifest intent, describe land
• Estoppel and part performance are exceptions to SOF

2. Implication — Preexisting Use (Quasi-Easement)

• Prior common owner used one parcel to benefit another (quasi-easement)
• Upon severance, implied easement may be created
• Implied grant (for buyer): lenient test — apparent, continuous use at time of severance; intent of parties
• Implied reservation (for seller): stricter necessity test

3. Necessity

• Elements: landlocked parcel at the time of severance
• Necessity must exist at the time of severance
• Ends when necessity ends (e.g., new road built)
• Majority: strict necessity (physically impossible to access without it)
• Minority: reasonable necessity (too expensive to create alternative access)

4. Estoppel

• Permission or knowledge by servient owner
• Substantial expenditures in reliance by easement claimant
• Some form of necessity (landlocked or no reasonable alternative)
• Easement ends when necessity or reliance value is exhausted

5. Prescription (Like Adverse Possession)

• Open and notorious
• Continuous (mirrors typical use of the area)
• Adverse under claim of right (most jurisdictions require objective use; minority require good-faith belief)
• Exclusive (in some jurisdictions; only means separate from others)
• For the prescriptive period (typically 10–20 years, shorter than AP)
• Permissive use defeats prescription

Misuse / Overuse

An easement appurtenant to one parcel may not be extended to serve other parcels owned by the same owner. If burden on servient estate is not increased, courts may exercise discretion to deny injunction.

Termination

• Release: dominant holder releases servient estate
• Expiration: ends by its terms or defeasible event
• Merger: dominant holder acquires ownership of servient estate
• Abandonment: affirmative intent to relinquish, more than mere non-use
• Reverse prescription: servient owner gains prescriptive right to block the easement
• Necessity: necessity easements end when necessity ends
• Misuse: injunction for misuse; repeated violation may extinguish

Policy

• Access and efficiency: implied easements by necessity prevent landlocking and ensure productive use of land; withholding an access easement creates no social benefit — it is pure holdout leverage
• Reliance protection: easements by estoppel protect parties who have reasonably relied on permission to their detriment
• Predictability: the SOF writing requirement ensures clarity about what burdens run with land; purchasers can discover easements in the public record
• Notice: recording acts protect bona fide purchasers who take without notice of informal easements; inquiry notice extends to visible physical evidence of use (e.g., worn path, utility lines)
• Anti-forfeiture: courts generally give easements a broad rather than narrow scope consistent with the parties’ intent; complete termination is disfavored

Policy

• Access and efficiency: implied easements by necessity prevent landlocking and ensure productive use of land; withholding an access easement creates no social benefit — it is pure holdout leverage
• Reliance protection: easements by estoppel protect parties who have reasonably relied on permission to their detriment
• Predictability: the SOF writing requirement ensures clarity about what burdens run with land; purchasers can discover easements in the public record
• Notice: recording acts protect bona fide purchasers without notice of informal easements; inquiry notice extends to visible physical evidence of use (worn path, utility lines)

Key Cases

• Van Sandt v. Royster — implied easement by preexisting use; P charged with inquiry notice of sewer drain
• Holbrook v. Taylor — easement by estoppel; haul road; substantial improvements in reliance
• Othen v. Rosier — no easement by necessity; necessity must exist at time of severance
• Brown v. Voss — misuse of appurtenant easement to serve non-dominant parcel; court denies injunction as equitable discretion
• Matthews v. Bay Head — public trust doctrine; implied easement to access wet sand area

Covered In

• Property