Easements Summary

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					Easements Easements
    a grant to use land possessed by another. o The burden passes to subsequent owners o owner of the easement has rights against all successors to the GOR Affirmative easement: right to go on land negative easement: prevent the owner of the servient land from doing some act easement appurtenant: o if an easement benefits its owner in the use of another tract of land, it is appurtenant o benefited  dominant tenement; burdened  servient tenement o passes with dominant tenement:  it cannot be separated from the dominant land unless the owners of the dominant and servient make a new agreement permitting that. In gross: o does not benefit its owner in the use and enjoyment of his land o gives him the right to use the servient land o can be assigned if partly so intend

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creation of easements
 express grant o must satisfy SoF - must be signed by GOR  if oral, a license is created. o A failed attempt to create an easement may still result in a license  Oral grant of an easement results in a license by reservation o in favor of GOR  GEE, by accepting the deed, and even though he did not sign it, bound himself to it o In favor of 3rd party  At CL, in easement could not be preserved in favor of a third-party  L is liable for malpractice if L does not use w pieces of paper  An attempt to reserve an easement for anyone else would likely be held void.  Minority: reservation in favor of 3rd parties is allowed  On theory of unjust enrichment.  a covenant, unlike an easement, can be created to benefit a third-party by implication o exception to SoF o appearant existing use  Elements  prior to land divided into two lots, o implied Grant; implied reservation o implied in favor of dominant  in easement in gross would not be implied  a use existed o the existing use is often called quasi-easement o must be apparent by reasonable inspection  apparent does not mean visible  e.g. Sewer line o use must be continuous  e.g. courts interpret continuous to include a permanent physical change in the land for particular use

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Easements
improvement of roadway by paving even through the roadway is not used every day  reasonably necessary for the enjoyment of the dominant part  parties intended service to continue  may continue for ever even after any element of necessity disappears o Necessity  O divides a tract and took lots  deprive one lots of access to a public road  must be strict necessity, not just convenient  implied only over land locked parcels  can not be implied over land that was never owned by the common GOR  necessity exists when the tract is severed  does not require an existing use  servient owner has the right to locate easement  location has to be reasonably convenient  lasts only so long as it is necessary by prescription o English law: fiction of lost grant o Elements (American Law):  open and notorious use  if use can be reasonably discovered on inspection, this requirement is satisfied o e.g. underground sewers and drains  adverse and under a claim of right  without permission  objective test: appears to the community to be under a claim of right  subjective test: good faith belief that he has right to use  if with permission but subsequently begins to do ask that reasonably should put the owner on notice that the user is claiming a right servient land, the use becomes adverse o ex: tears down a gate or widens and pays a driveway o non ex: merely repairs (not enough notice to O)  Continuous use  does not mean constant o could be periodic use – ex: seasonal use  Eg. Grazing cattle during grazing season  E.g. hunting or fishing o sporadic and occasional trespasses do not give rise to a prescriptive easement  Tacking is allowed  Uninterrupted use  if intercepted by the owner, prescriptive period ends  the owner must effectively interrupt to adverse use o a sign or oral protest will not suffice 

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Public easements
    members of the public use the private land in a manner meeting the requirements for prescription if the public use is vacant, undeveloped land, the presumption is that the use is permissive. Minority view: public can not acquire prescriptive rights public trust doctrine. o The public may use the privately owned dry sand area to the extent needed in the exercise of the public's right to use the wet sand area and the water

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Scope of easements
  scope depends on the intentions of the parties o consider whether the increase was unreasonably burden the servient tenement Express: given a scope that permits it to meet the needs of the dominant land as it only develops o in ways reasonably foreseeable o Eg. Easement is not limited to the modes of transportation in use in 1876.  If they use of the dominant tenement changes to commercial use, trucks may use the easement  the purpose of the easement is to gain access Implied: o Existing use: same scope as express is meant o Necessity: the extent of necessity determines the scope Prescription o difficult to increase the burden since no intent o E.g. prescriptive easement is acquired by use to each a house, and the use of the dominant land is changed from residential to commercial, the added burden of traffic probably would not be permitted onto prescriptive easement subdivision of dominant tenement o each subdivided lot has a right to you is easement appurtenant o the servient estate is not to be burdened to a greater extent than once contemplated can not increase the scope of the easement by using it to benefit non-dominant tenement location cannot be changed unilaterally - requires mutual consent Division of easement in gross o transfer to two or more persons o One-stock rule  > 1 person must use the profit as one stock  neither can operate independently of the other  one owner can veto use by the other  E.g. B & C must agree on the rate of extraction; they must act as a single owner  inhibits consuming natural resources without regard to future needs

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Transfer of easements
 appurtenant o easements appurtenant and burden pass on o easement appurtenant passes with the benefited land  does not have to specifically be mentioned in the deed In gross o the benefit of a commercial easement in gross is assignable in non-commercial easement o in gross is assignable if the parties so intend

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Termination of easements
  by unity of title o once the easement is extinguished, it is not revived by subsequent separation by act of dominant owner o release by written instrument  oral release is ineffective o non-use - not extinguished no matter how long the nonuse continues o abandonment owner acts in such a way as to indicate an equivalent intend to abandon  e.g. allowing the easement to be blocked  e.g. oral release coupled with failure to maintain Necessity: when the necessity ends by act of servient owner

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o o destruction of servient tenement Prescription  E.g. erecting a fence across a roadway can extinguish the easement by prescription

Negative Easements
  Limited to: o Air, light, subjacent and lateral support, flow of an artificial stream. o New: Conservation (scenic, historic) easements. Can not arise by prescription

License
    permission to go on land Plummer, UPS delivery, guests at a party Oral or in writing. Revocable o Exceptions:  License coupled with an interest  right to remove a chattel of the licensee o O sells car to A; A has irrevocable license to enter and remove the car  Estoppel  LEE constructive substantial improvements, relying on the license not binding on new owner presumed to be personal and not assignable o unless parties otherwise intended

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