Property Ii

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Easement

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a non-possessory interest one person has in the property that another person possesses.

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Easement in Gross

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benefits a person

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Easement Appurtenant

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benefits the owner or possessor of a particular parcel of land.

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Easement in Gross ends...

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when the holder dies

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Easement appurtenant ends...

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Doesn't end because it continues indefinitely

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servient estate

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property burdened by the easement

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dominant estate

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land benefitted by the easement.

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What type of estate is an easement appurtenant?

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Dominant estate

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Can the owner of a dominant estate use a valid easement for the benefit of newly acquired land?

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No. Once the dominant estate has been identified in the easement deed, it has been identified for all time.

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Affirmative Easements

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Give the holder the right to go onto the servient estate for a specific purpose.

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Negative Easement

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gives the holder the right to prevent the possessor of the servient estate from doing some act on the servient estate.

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American Courts recognize these two negative easments

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Water channels (duty not to interfere with airflow) and lateral support (duty not to remove support from a house on the dominant estate)

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Profit a prendre

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the right to enter another's land, without liability for trespass, and remove minerals, timber, or other natural resources constituting a natrual part of the land.

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License

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when a landowner permits another person to use his property, but the permission is revocable or terminable at the landowner's will.

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May a license be implied?

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Yes. As long as the user stays within the terms of the license.

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Is a license revocable at will?

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Yes.

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Why is a lease better than a license for a commercial standpoint?

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The commercial user would have exclusive use of the property in the lease. A license means other people could use the property in direct competition.

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Millbrook Hunt Inc., v. Smith

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Facts: MillBrook, a fox hunting organization dedicated to the old ways, secured a 75 year lease and easement agreement to use ¼ acre of Smith's land for hunting.• Upon Smith's death, his son, attempting to make a wildlife reserve and against hunting, ejected the hunters from the property while they were performing routine inspections. MillBrook seeks affirmation of easement.

Holding: The court holds that there is a difference between an easement and a license and the hunt possesses a 75 year easement.

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Fourfactors that indicate a relationship is an easement or profit and not a licenseare that:

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1) it is for a specified time;

2) it is for a designated area;

3) that substantial consideration was paid for it; and

4) that the holder is allowed to make improvements and repairs or somehow exercise control.

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Fivefactors in determining whether the parties intended to create a license or aneasement:

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1) The manner of creation of the right (oral or written);

2) The nature of the right created;

3) The duration of the right;

4) The amount of consideration, if any; and

5) The reservation of the power to revoke the right.

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Easementby Grant

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Thisoccurs when the owner of the servient tenement actually gives the easement to the owner of the dominant tenement.

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Ricenbaw v. Kraus

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Facts: Π sued for the right to maintain a dualsystem of drainage across ∆'s land.

Holding: License cannot turn into adverse possession , but license can be irrevocable if it would be inequitable to permit revocation, so granted easement by estoppel; permission to install drain line on other's land

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Easement by Estoppel

(The court is making it. Three elements)

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1) the owner of the servient estate consents to the dominant estate holder's use of the servient estate.

2) the servient estate owner knows or should know the dominant estate owner will materially change his position, believing the permissive use will not be revoke; and

3) the dominant estate holder, reasonably believing the permission will continue, substantially changes his position by investing in improvements on either the servient or the dominant estate.

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Easements implied from prior use

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arise when a use was in place at a time a single parcel of land was severed or divided into two adjoining parcels, leaving one parcel benefitting the other in some way, even though the seller and purchaser did not discuss or even think of it when they bought and sold the land.

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4 elements required for an easement implied from prior use:

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1) The unity of ownership is severed;

2) the use was in place before the severance;

3) the use was visible or apparent at the time of severance; and

4) the easement is necessary for the enjoyment of the dominant estate.

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Maier v. Giske

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Precise location satisfied the statute of frauds for properly describing an Easement, while it should have included reference to the estate it burdened, there was still enough information to make it valid.

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Threemain types of easement created by implication:

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1) The easement implied from prior use (sometimes called quasi-easement and pre-existing use)

2) The easement implied from necessity (sometimes called way of necessity)

3) The easement implied from a plat.

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Easementby implication can only happen...

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when another transaction occurs

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A party claiming to be benefited by aneasement by necessity must demonstrate the existence of the following threeelements:

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1)unity of title;

2) severance of the title; and

3) strict necessity of theeasement.

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Implied Easement by Pre-existing Use

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1) the dominant and servient tracts of landoriginated from a common grantor (unity of title);

2) the use was in existenceat the time the original grantor severed the tracts (severance of the title);and

3) the use was apparent, continuous, and reasonably necessary for enjoymentof the dominant tract (before the severance).

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Otero v. Pacheco

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(Minority) - BFP's title not free of unrecorded implied easements; court found purchasers had constructive notice of buried sewer line.

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How can a person gain an Prescriptive Easement

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By long continued adverse use.

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Elements for a prescriptive easement

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1) Actual Use

2) Open and Notorious

3) Hostile and adverse use

4) Continuous and uninterrupted

5) Exclusive use

6) The prescriptive statutory period

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Brown v. Voss

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An easement appurtenant to an estate may not beextended to other adjoining estates. Extendingthe easement to benefit the servient estate is misuse.

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Cameronv. Barton (land behind house)

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Without language to the contrary, an easement grantedby conveyance may be used in any manner necessary for the proper and reasonableoccupation and enjoyment of the dominant estate.

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Cityof Pasadena v. California-Michigan Land & Water Co.

(granted two easements to two different

companies)

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The owner of a servient tenement may make any use ofthe land that does not interfere unreasonably with a pre-existing easement.Ifan easement doesn't say it's exclusive, then it is non-exclusive.

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Howdo easements terminate?

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1) Mergerof ownership

2) Canbe extinguished by a lease term

3)Couldconvey abandonment by words or conduct.

4) Estoppelcan block enforcement of an easement.