Easement

A right of use over the property of another. Traditionally the permitted kinds of uses were limited, the most important being rights of way and rights concerning flowing waters. The easement was normally for the benefit of adjoining lands, no matter who the owner was (an easement appurtenant), rather than for the benefit of a specific individual (easement in gross).

Easements frequently arise among owners of adjoining parcels of land. Common examples of easements include the right of a property owner who has no street front to use a particular segment of a neighbor's land to gain access to the road, as well as the right of a MUNICIPAL CORPORATION to run a sewer line across a strip of an owner's land, which is frequently called a right of way.

Easements can be conveyed from one individual to another by will, deed, or contract, which must comply with the STATUTE OF FRAUDS and can be inherited pursuant to the laws of DESCENT AND DISTRIBUTION.

An easement is a nonpossessory interest in another's land that entitles the holder only to the right to use such land in the specified manner. It is distinguishable from a profit a prendre that is the right to enter another's land and remove the soil itself or a product thereof, such as crops or timber.

An easement appurtenant attaches to the land permanently and benefits its owner. In order for it to exist, there must be two pieces of land owned by different individuals. One piece, the dominant estate or tenement, is the land that is benefited by the easement. The other piece, known as the servient estate or tenement, is the land that has the burden of the easement. An easement appurtenant is a COVENANT running with the land since it is incapable of a separate and independent existence from the land to which it is annexed. A common example would be where one landowner—A—is the owner of land that is separated from a road by land owned by B. If B sells A a right of way across his or her land, it is a right that is appurtenant to A's land and can only be used in connection thereof.

An easement in gross is not appurtenant to any estate in land. It arises when a servient piece of land exists without a dominant piece being affected. This type of easement is ordinarily personal to the holder and does not run with the land. For example, if A has a number of trees on his or her property and B contracts with A to enter A's land to remove timber, B has both an easement in gross and a profit. At COMMON LAW, an easement in gross could not be assigned; however, most courts currently allow certain types of easements in gross to be transferred.

Easements are categorized as being either affirmative or negative. An affirmative easement entitles the holder to do something on another individual's land, whereas a negative easement divests an owner of the right to do something on the property. For example, the owner of land might enter into an agreement with the owner of an adjoining piece of land not to build a high structure that would obstruct the light and air that go onto the adjoining owner's land. This easement of light and air deprives the property owner who gives it up from enjoying ownership rights in the land to the fullest possible extent and is labeled a negative easement.

There are various ways in which easements are created. An express easement is clearly stated in a contract, deed, or will. An easement by implication occurs when the owner of a piece of land divides such land into smaller pieces and sells a smaller piece to another person, retaining a right to enter such piece of land. For example, a seller divides his or her property and sells half to a purchaser. The piece that the purchaser buys has a sewer pipe beneath it that serves both pieces of property. The seller has an implied easement to use the sewer pipe that runs under the purchaser's land.

An easement by prescription arises through an individual's use of land as opposed to the possession thereof. An easement of this nature will be recognized in these instances: (1) the easement is adverse or contrary to the interests, and absent the permission, of the landowner; (2) it is open and notorious; (3) it is continuous and uninterrupted; and (4) it exists for the period of time prescribed by state statute. If for a period of time beyond the prescribed statutory period A creates and openly uses a right of way across B's land without B's permission then an easement by prescription is created.

An easement can either be terminated through the expiration of its term as determined upon its creation or by one of several events occurring subsequent to creation. Events that can extinguish an easement include these: (1) the same individual becoming the owner of the dominant as well as the servient estate when an appurtenant easement existed; (2) the owner of an easement in gross obtaining ownership of the servient estate; (3) the owner of the dominant tenement executing a deed or will releasing the easement in favor of the owner of the servient tenement; and (4) the ABANDONMENT of an easement.