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Easements
Easements: is an interest in land that entitles the holder to use land owned or possessed by another person.
A creation of an easement generally requires a written instrument signed by the party to be bound thereby. However, in addition to the usual exceptions of fraud, part performance, and estoppels, and easement may, under certain circumstances, be created by implication or by prescription.
That use is irrevocable for however it has been granted. There are ways to end easements, even those that last forever.

An Easement is either Appurtenant or in gross
Easement Appurtenant
is one that benefits the owner of anothe rparcel of land. The benefited parcel is called the dominant estate. The burdened parcel is called the servient estate. An easement appurtenant passes with the dominant estate whenever the Dominant estate is transferred to a new owner.
Easement in Gross
an easement tha tis designed to deliver a personal benefit rather than to benefit a landowner is an easement in gross. they are not attached to, or appurtenant to, any parcel of land. They create a personal right to use the servient estate, but that personal right may be assigned if the parties so intended.
What if the grant to an Easement is Ambigous and you don't know if it is "in Gross" or "Appurtenant?"
the courts will construe the language as creating an easement appurtenant. this is because EA are easier to eliminate because the easement owner is easier to locate, are more likely to create value, and are more likely to be intended than an easement in gross.
Profits a Pendre
it is the right to take a natural resources or crop from the land of another. Common Law courts preferred to construe profits as in gross tather an appurtenant.
Licenses
it is simply permission to enter the licensor's land, they may be oral or writted and are revokable at any time unless other wise stated
License of Easement in gross?
The difference is that a Easement may not be revoked and continues to bind successors to the servient estate who have notice of it, while a license is revocable and binds only the licensor so long as it remains alive. Court prefer to construe ambigious lang as a license. Licenses are generally not assignable.
Easement by Grant:

In Favor of a Third Party
Common Law- a grantor cannot reserve an easement in favor of a third party. Rational is that the third party is a stranger to the deed and the grant can not be traced back. (Majority view) When using the common law to create an easement in favor of a third party there must be two conveyances. First to the person benefiting from the easement then they convey the rest to the new owner.

Minority of courts have ruled that easements in favor of third parties are valid.
Example of Valid Third Party:

Willard v. First Church of Christ
Felt that CL frustrates clear expressions of grantors intent and delivers windfall profits to people like Peterson who pay less for property with an easement. Feels that you must look at the intentions of the people.
What is the regrant theory?
Willard states that a reservation is treated as if it is a grant of the easement form the grantee to the grantor.
Easement by Estoppel
an irrevocable license, the functional equivalent of an easement, can be created by estopple. If a licensor grants a license on which the license reasonably relies to make substantial improvements to property, equity requires that the licensor be estopped from revoking the license. 1)Reasonable Reliance and 2) Detrimental Harm
Example of Easement By Estoppel:

Holbrook v. Taylor
• What is an important fact to this case? That there was a warning when he started building the house and they let it happen anyway then there is a basis that says you should be estopped. It isn’t just that you make a promise it is also the fact that the person giving the permission has a basis to know or should have known that the person relied to there detriment on that promise.
o Contrast with Henry v. Dalton- an oral license to do something until I revoke it but I have the right to revoke it. Prevents the burden of misunderstanding. It give security and certainty to titles.
What if a house burns down. Can a person build a new house using the right of way across Holbrook's Lan?
"The expectations that create the servitude will also define its scope and terms. The relevant expectations are those that reasonable people in the position of the landowner and the person who relied on the grant of permission or representation would have had under the circumstances
Easements by Implications
1. Where property has been divided by a common owner and, prior to the division, one portion of the property has been used in an easement- like fashion for the benefit of another part of the property (implied from PRIOR use)
2. Where property has been divided by a common owner in such a manner that an easement for access is necessity (implied from NECESSITY)
Easement Implied from a prior existing use:
1. Common Owner
2. Reasonable necessity
3. Continuous Use
4. Intended continuation
5. Existing use
6. Apparent
Implied Grant vs. Implied Reservation:
Implied Grant- when the owner and grantor retain the quasi-servient state (the burdened part)
Implied Reservation- when the owner and grantor retains the quasi-dominant estate (the benefited part)
Quasi-Easement
there is no easement created while the property is owned by one person, but this prior use creates an inchoate easement-in-waiting.
Example of Easement in Gross
General Rule: Commercial easements in gross are assignable and noncommercial easements in gross are not assignable unless the parties intend to permit assignment
Example of Quasi Easements:

Van Sandt v. Roster
• How does the court find that there was an easement? They found that it was a quasi-easement because it does not belong to a separate parcel. Now, the easement serves other properties. When we subdivide lot four to lot 19 and lot 20. What happens now? How does that Q-E create the easements in 19 and 20.
• To get rid of the easement you reunite the parcels.
• If there is no other acess to sewar we are going to say that there was a quasi-easement and that the easement does exist.
• Upheld trial court that an easement by reservation implied from prior use had been validly created by Bailey when she conveyed the two downstream lots. The courts rejected the old view of strict necessity that when an easement implied from prior use is created absolute indispensable necessity is required. This court said that necessity is just one of the elements in determining the inferred intentions of the parties. If other elements are present such as apparent existing use are present there should be little difference between reservation and grant.
• Pg. 799 key- if I don’t reserve the only way I can get an easement is demonstrating a strict necessity.
In the Jurisdictions that do not use Strict Necessity what must happen?
jurisdictions that don’t apply this need something in the deed or something that is reciprocal. (Strict necessity is the majority)
Easement in Gross:

Miller v. Luthren Conference.
: The court held that as partners they had acquird a bathing right by prescriptive use, and the easement in gross was a commercial easement that was intended to be transferable, but not divisible.
the court appled the rationale and principle of Mountjoy’s case when it decided that the boating, bathing, and fishing easement in gross held jointly by the Miller brothers could not be divided.
Factors in determining Implications of Easements or Profits
a) whether the claimant is the conveyor or the conveyee
b) the terms of the conveyance
c) the consideration given for it
d) is the claim made against a symultantious claimee
e) the extent of necessity of the easment or the profit to the claimant
f)reciprocal benefits
g) manner the land was used prior to the conveyance
h) extent to which the manner of prior use was or might have been known to the parties
Easement by Necessity:
an easement by necessity can ONLY be created over property owned by the person who also owned the landlocked parcel and who divided the property to create the access problem. If multiple divisions, and easement by necessity is crated at the moment a parcel is landlocked, and thus the easement burdens the last parcel split off by the common owner – the parcel that completed the landlocking.
Example of Easement by Necessity:

Othen v. Rosier
Held: That no easement be mecessity had been proven across Rosier’s land, because there was no proof that when Hill, the common owner, had conveyed the Rosier property to Rosier’s predecessory in interest it was that conveyance that landlocked the Othen Parcel. Rather, it appeared that at the time Hill conveyed the Rosier parcel Hill owned other land (never identified by Othen) that was contiguous to both the Othen parcel and a public roadway. Othen had an easement impled by necessity across some property but it wasn’t Rosiers
Easements by prescription:
much like adverse possession. Easements are not posessory interests so they an not be acquired by adverse possession, but adverse use for a sufficient period of time. (1) adverse use under a claim of right that is (2) open and notorious and (3) continuous for the prescriptive period
What are riparian rights?
Abutting owners to natural waters have riparian rights, reasonable use of suface waters, may be licensed subject to reasonable use.
Public Prescriptive easements: Public Trust Doctrine

Matthews v. Bay Head Improvement Association
The NJ supreme court ruled that private beachfront landowners organized as a “quasi-public” entity must give the general publich “access to and use of privately owned dry sand areas as reasonably necessary.”

This case dealt with dry sand beaches that were owned by a non-profit corporation that controlled, either as fee owner or lesee, the dry sand portion of the beaches in Bay Head, N.J., and which restricted access to those dry sand beaches to resident of bay head and their guests. It is possible that this rule, as applied to privetley owned dry sand beaches where the owner have not assumed “quasi-public” power, would amount to a taking of private property for which the constitution requires just compensation.
Othen – easement by necessity.
easement by necessity. Focused at severance at the time the original lot is subdivided and spun off. Most court will imply a necessity by if in the splitting off it is now necessy to create an easement for the landlock portion to have access to the road. That is why there were concerned with 60 yrs prior. It was the time when if it was created it would have been. Court said it was not an easement. It is Othen’s burden of proof that 1896 this easement was necessary. Bi-monopoly demand equal very high pricing. What are his other options? The county can condemn an easement. It is going to cost money and it may not be where you want it. Purchase land. Or puchase easement, or trespass and get it by prescription.
Scope of Easements Appurtenant
Generally: can't extend by owner of dominant estate to other parcels owned by him, whether adjoing of distinc tracts.
No exception on showing no increase of burden to servient estate.
But... injunctions are equitable relief. Your' not necessarily entitled to one, if damages are adequate or balance of harms and equities don't merit relief.
From Miller Case:

Assignibility of Easements
Easments appurtenenat

Benefits and burdens pass automatically to assignees of land
Paries must intend, Burdened party has notice (not have to be actual)
Easements by prescription: much like adverse possession.
Easements are not posessory interests so they can not be acquired by adverse possession, but adverse use for a sufficient period of time. (1) adverse use under a claim of right that is (2) open and notorious and (3) continuous for the prescriptive period
Can you record for a perscirption or an easement by implication. It is your best interest to enter into a quite title or a recordation in wrting.
Public Prescriptive easements: Public Trust Doctrine
Ownership of land under tidal waters from water to mean high water mark is held by state in trust for people.

Great lakes;from water's edge to where presence and action of water is so continusous as to leave a distinct mark...
State can't abdicate its trust; can't grant away
Fishing
Recreational Use
How to access?
Municipalities can't resstrict municipaly- owned beaches to only those who live within them.
Full enjoyment of foreshore necessitates some use of upper sand. Not just to access, but also for rest/relaxation.
May include privately-owned land if "reasonably necessary" fo enjoyment of water.
What is private land?
o Depends on circumstances
 Location of dry land
 Availability of publicly-owned access
 Extent of public demand
 Use of dry land by private owner
o Accommodation of owner’s interest
o Burden is on those seeking access
Change of Scope
Servient estate may be used in a maner resonably necessayr for covenient enjoyment of servitute.
Frequency/ intensity of used may change to take advantage of developments in technology and accomodation of normal development of domiant estate.
Utility easements usually must be separately granted; not assumed with right of way.
From Miller Case:

Summary of Assignments
Burdens:
Appurenant, limited by needs of dominant tenement

Assignibility:
Both commercial and non-commercial are typically assignable Excpetion: Recreational easements
Uncertain boundaries…
• How much dry sand area is subject to public use?
• When can totally private property be used for access and recreation?
• Great lakes problem “High Water mark”
o Where it is ? – where the sand is too wet.
o How extensively can it be regulated?
• What about compensation?

Over the years the great lakes have gone up and down. It is a case by case situation. The principle is rock solid but how it is used beyond that is anyone’s guess. What ever land is governed by public trust the govt has the right to regulate. Assignability of easements.
Change in Location
Common law: can not be unilaterally changed

Restatement" servient owner can change at own expense if utility of easement isn't significantly leased; burden to dominant estate. Can be significanly increased or purposely frustrated.
Scope of perscriptive easements is more narrow kind of use by which it was created.
Termination of Easements:
Termination of Easements
1. Expiration
2. Merger
3. Some act of the easement holder
4. Complete cessation of purpose
5. Some act of the servient estate
Abandonments
Upon abandonment, burdened estate is immediately relieved of burden. Non-use is NOT enough to prove abandonment. Must be accompanied by unequivocal conduct shwoing conclusively: Present intent to relinquish or purpose inconsistent with easement's rugutre existence.
Example of Abandonment:

Presault v. US
Vermont law stipulates that railroads acquireing rights of way acquired only the smallest interst in land necessary to accommodate its limited interest in creating a rail transport corridor. The difference between an easement or fee simple absolute was significant. A fee simple railroad would mean that the abandonmed rail corridor remained the railroad’s property and that it was validly conveyed to Vermont; an easement raised issues of whether it was abandoned (and thus title reverted entirely to the owner of the fee) or, if not, whether the public trail use was consistent with the scope of the easement for rail transport.
Good Example of Scope of Easement Appurtenats:
Brown v. Voss
Brown sued to enforce the easement. Voss countersued to enjoin Bron from using the easement to benefit Parcel C, the nondominant estate.

Trial Court denied the injunction sought by Voss on the theory that Brown’s use of the easement was reasonable, even though Brown was using it to benefit land that was not the dominant estate.

The appeals court reversed and issued the injunction, applying the traditional rule that an easement may not be used for the benefit of property to which the benefit is not appurtenant.

The Supreme court reversed, reasoning that although the appeals court was correct to concludes that any physical enlargement of the dominant estate is wrongful, an injunction should not issue because there was no evidence of irreparable harm to Voss from the enlargement: There was no increase in the volume or type of traffic or other increase in the burden placed on Voss’s servient estate. Sustained the TC $1 damages to Voss.
Why was $1 remedy not adequate?
The dollar was inadequate. What does his lawyer have to prove? Legal relieve inadequate, prove the burden is on your lot. The court refuses to enforce it. This is the malepractice for voss who didn’t know that there was access to parcel C. He said we have the law on our side so we will win. He didn’t know that we had the right.
Once you have an easement it is not a statick
Good Language from Presault v. US
2nd argument would be the scope of the easement. The court is more friendly to that saying the scope may be adjusted in the face of changing times to serve the original purpose, so long as the change is consistent with the terms of the original grant
Termination of Perscription
Servient owner wrongfully and physically prevents easement from being used. Blockage occurs for statutory period.
Negative Easement
– is the right of the dominant owner to stop the servient owner from doing something on the servient land.
Only four have been recognized: air, light, subjacent or lateral support, flow or artificial stream. Can’t arise out of perscrition. Newer aditions: scenic and solar easements. Not likely to gow, since covenants can deal with most.
Covenants-
It may be affirmative (to do something) or negative (to not do something). It can be made between land owners re:use of land. Can be enforced by subsequent possessors against subsequent possessors.
What are the two types of Covenants?
- some are enforced by seeking damages in law
- some are enforced by seeking injunctions - in equity.
- Even with merger, must choose the remedy, which in turn dictates the kind of covenant that must exist.
If you are looking for damages:

Real Covenant
a covenant that runs with the land at law. Enforceable by and against successors to promisory/ promisee's land. Certain requirements must exist and be proven. Enforceable only by personal judgment for damages. Distinguish from conditions place by a grantor that results in foreiture.
How do you create a real covenant?
Must have a writing. Cannot be created by implication or perscription. ONce exception to Statute of Fruads: although deeds are signed only by grandtor, if accepted by grantee covenant in deed is binding on grantee, too.
Real Coveant vs. A grant?
If you violate a real covenant you do not get the land taken away. You only get charged in damages.
Running of Benefits and Burdens-
o Esements run with the land because they are interests in property
o Covenants are merely promises; courts developed rules for their running
Requirement for running of burdens of real covenants?
Original covenantors must intend successors to be bound. Privity of estate (typically) between original covenantors and between promisor and promisor’s assignee. Covenant must touch and concern the land. Subsequent purchasers of promisor’s land must have notice of Covenant.
Four Major Differences between Real and Equitable Servitudes
1. Remedy : A real covenant is enforceable at law by an award of money damages. Equity is enforceable by injunction
2. No privity needed: Neither horizontal nor vertical privity is needed for either the benefit or burden of an equitable servitude to run to successor in the burdened or benefited estates
3. Creation: Equitable servitude may be created by implication in many jurisdictions. A real can only be created expressly and in writing.
Vertical vs. Horizontal Privity
Privity between original parties is known as “horizontal privity”
Privity between promisee and assignee is known as “vertical privity of estate”
Privity between promisor and assignee is known as “vertical privity”
figure 10-7 on page 861
Requirements for running of benefits of real covenants
o Parties must intend benefit to run
o Privity of estate may be required
o Benefit must touch and concern land owned by the promise
o Typically more leniently enforced than requirements for burden.
Intent of the parties in a Real Covenant
Typically found in language of deed or granting instrument
“shall run with land”
“covenants for self, heirs, assigns”
If less than clear, circumstances, purpose of covenant examined
No technical requirement to use particular words.
Privity of Estate
Consider two relationships:
Between original promisor and promisee
Horizontal privity
Between one of the original parties and an assignee
Vertical privity
Privity or the running of the burden
Original parties must be in privity of estate (horizontal privity)
American rule: privity exists if covenant is contained in a conveyance of an interest in land
Thus, a promise made independent of a conveyance won’t run with the land
Must always look to how promise was originally made
Running of the burden requires:
Vertical Privity
Also requires vertical privity
Succession of interest between current party to action and original promisor or promisee
Common law: successive estate must be estate of same duration
Thus, burden runs with the estate in land.
Running of the Benefit:
Benefit of a covenant can run with land without covenanting parties being in horizontal privity.
Vertical privity is typically required, but will run with any interest in land irrespective of duration.
Restatement for Burdens or Benefits
The Restatement of Servitudes gets rid of vertical privity requirement
Negative covenants are treated like negative easements – all run with land
Affirmative covenants are more burdensome and require succession to estate of same duration as owned by original parties.
Touch and Concern with Land and Notice
Touch and concern land requirement same as in equitable servitudes
Notice: BFP without notice isn’t bound
Effect of assignment: if covenant truly burdens land, assignment will relieve original covenantor of any liability – control issue
What is an equitable servitude?
Covenant (whether or not a real covenant) enforceable in equity
Against assignees of burdened land
Who have notice of the covenant
Equitable remedy: injunction
How does an equitable servitude compare with real covenants?
Eq. servitudes are thought of as an interest in land (much like easements)
Remedy sought is the key – injunctions are more valuable and can result in bi-lateral monopolies.
Real covenants must be in writing; eq. servitudes can be implied.
No horizontal privity required; no vertical privity for burden to run; some states require vertical privity for benefit to run.
How are equitable servitudes and real covenants similar?
Same promise can create both

Both must touch and concern land

Both have a notice requirement