Easements
profit
Special kind of easement that allows holder to enter land and remove specific items
methods to create an easement
• expressly by deed
• by necessity
• by implication
• prescriptively
Def. of real covenant
A promise about land that runs with the land,
Promise touches and concerns the land,
Contracting parties intended the promise to run with the land,
Appropriate privity exists
equitable servitude
A real covenant-like promise associated with the land. Privity not needed.
Appurtenant easement
An easement that benefits a neighboring parcel of land.
Ownership of the easement runs with the land.
easement by necessity
An original unity of ownership of the servient and dominant estates
Dominant estate has no way to reach a public road except over the servient estate
touch & concern (Powell & Bigelow)
touch & concern (restatement)
P&B: Promisor’s estate is less valuable because of the promise; the promisee’s estate is more valuable because of the promise.
Restatement: The promise is of direct benefit to the use or the enjoyment of the land.
riparian rights
The right of a title holder to use water in a lake, river... that is contiguous (adjacent) with the title holder’s land as long as the land is within the watershed of the body of water
easement in gross
An easement that benefits an individual.
Ownership is a personal right
easement by implication (map)
Map is referred to in a deed and map shows something that appears to be an easement, so one will be created
mutual privity
The parties have a continuing interest in the same land
air rights—airplanes
Privileged to cross land as long as above minimum safe altitude of flight defined by FAA
affirmative easement
negative easement
AE: Its owner can do something on the other’s land.
NE: Its owner can prevent the land title holder from doing something with his or her own land
easement by implication (preexisting use)
Original unity of ownership of the servient and dominant estates.
Before ownership was severed, dominant estate used land in the servient estate.
The use was apparent, obvious, continuous & permanent.
Therefore, easement is necessary and beneficial to dominant estate.
horizontal privity
The parties who created the covenant were grantor and grantee on a deed which contained the promise
customary rights
Minority rule that establishes a prescriptive right for the public at large to continue a use that has always been seen as acceptable
Are customary rights considered easements?
favored type of easement
Appurtenant easements > easements in gross easements in gross
prescriptive easement
Use of servient estate by dominant estate was:
open (visible, not hidden),
adverse (against the servient estate holders title, non-permissive),
continuous (used as expected for the easement),
uninterrupted (used without break),
under a claim of right (used as the dominant estate's property)
period in the statute of limitations.
** extra: what is acquiescence??
vertical privity
The parties in the enforcement action succeeded in interest from a contracting party
(OG party conveys property to a subsequent owner)
estate, easement and license distinguished
An estate is a property right that includes the right of possession.
An easement is a non-possessory property right allow use but not possession; interference with an easement will be enjoined.
A license is a contractual right to use land; usually, interference with a license will result in a damage award