(9) Easements - Characteristics, Scope, Termination

What are the two characteristics of easements?

Appurtenant easements and easements in gross.

What is an appurtenant easement?

An easement that benefits one parcel of land (the dominant estate) and burdens another parcel (the servient estate).

What are the elements of an appurtenant easement?

(1) Two separate parcels of land and (2) the intent to benefit the land rather than a particular individual.

How many parcels of land are required for an appurtenant easement?

Two.

What is the intent behind an appurtenant easement?

To benefit the land itself rather than a particular person.

What is the dominant estate in an appurtenant easement?

The parcel that receives the benefit of the easement.

What is the servient estate in an appurtenant easement?

The parcel burdened by the easement.

Does an appurtenant easement generally transfer with the dominant estate?

Yes. Because it benefits the land, it ordinarily passes with the dominant estate.

What is an easement in gross?

An easement that benefits a person rather than another parcel of land.

What are the elements of an easement in gross?

(1) Only one parcel of land is involved and (2) the intent is to benefit an individual rather than a specific parcel of land.

How many parcels of land are involved in an easement in gross?

Only one.

What is the intent behind an easement in gross?

To benefit an individual rather than a parcel of land.

Does an easement in gross have a dominant estate?

No.

What is an exclusive easement in gross?

An easement in which the beneficiary has the sole right to use the easement.

Can an exclusive easement in gross be apportioned?

Yes.

What is a nonexclusive easement in gross?

An easement shared by both the beneficiary and the servient owner.

Can a nonexclusive easement in gross be apportioned?

No.

What are common examples of easements in gross?

Public utility lines, telephone lines, gas lines, and cable lines.

What is the two-step approach for determining the scope of an easement?

(1) Determine what the easement permits and (2) determine whether there is a surcharge on the servient estate.

What is the first step in determining the scope of an easement?

Determine what the terms of the easement permit.

How is the scope of an express easement determined?

By the language contained in the written easement.

How is the scope of an implied easement determined?

By examining the type of use that existed before the severance of title.

How is the scope of an easement by necessity determined?

By what is reasonably necessary to satisfy the necessity.

How is the scope of a prescriptive easement determined?

By the actual adverse use during the prescriptive period.

What is the Rule of Elasticity of Scope?

The scope of an easement may reasonably evolve over time to accommodate normal changes in use.

What rule should be applied when determining whether an easement's scope may change?

The Rule of Reason.

Can the scope of an easement change over time?

Yes, if the change is reasonable under the Rule of Reason.

What significant change in use should you watch for when analyzing the scope of an easement?

A change from domestic use to commercial use.

Why is a change from domestic to commercial use important?

It may constitute an unreasonable expansion of the easement.

What is the second step in determining the scope of an easement?

Determine whether the use creates a surcharge on the servient estate.

What is a surcharge on the servient estate?

An unreasonable burden placed on the servient estate beyond the scope of the easement.

What is the general rule regarding termination by condition?

An easement terminates when a stated condition, event, or time limitation occurs.

How may an easement be terminated by written release?

The holder of the easement executes a written release satisfying the Statute of Frauds.

Why must a release of an easement generally be in writing?

Because an easement is an interest in land subject to the Statute of Frauds.

What is merger as a method of terminating an easement?

An appurtenant easement terminates when the same person acquires both the dominant and servient estates in fee.

When does merger terminate an appurtenant easement?

When one owner holds both the dominant and servient estates in fee simple.

What is the general rule for abandonment of an easement?

Words alone are insufficient; there must be nonuse accompanied by conduct demonstrating an intent to abandon.

Is mere nonuse sufficient to abandon an easement?

No.

What two elements are generally required to establish abandonment?

Nonuse and manifested intent to abandon.

Example: What conduct may demonstrate abandonment of an easement?

A railroad removes its tracks and permanently stops using the rail line.

Can an easement be terminated by adverse prescription?

Yes.

How can an easement be terminated by prescription?

The servient owner adversely interferes with the easement for the statutory period.

Example: How can an easement be extinguished by prescription?

The servient owner builds a wall across the easement that remains for the entire prescriptive period.

What is the general rule regarding destruction of the servient estate?

If a structure containing the easement is destroyed without the servient owner's fault, the easement is extinguished.

Give an example of a structural easement.

A stairway.

What is the traditional view regarding changes to a structural easement?

Neither party may voluntarily alter the structure.

What is the better view regarding structural easements?

Changes are permitted if they avoid economic waste while preserving the easement.

What is easement termination by estoppel?

An easement is extinguished when the servient owner reasonably relies to his detriment on the easement holder's conduct indicating abandonment.

Example: When does estoppel terminate an easement?

The servient owner builds a garage after reasonably relying on the easement holder's representations that the easement has been abandoned.

When does an easement by necessity terminate?

When the necessity ends.

Does termination of the necessity affect other types of easements?

No. It applies only to easements by necessity.

Does improper or excessive use automatically terminate an easement?

No.

What is the proper remedy for improper or excessive use of an easement?

An injunction preventing the misuse while allowing reasonable use to continue.

How can the Recording Act terminate an express easement?

A bona fide purchaser of the servient estate who takes without notice may take free of a recordable express easement that was not properly recorded.

When does the Recording Act protect a purchaser against an easement?

When the easement is recordable, express, and the purchaser qualifies as a bona fide purchaser without notice.

Can condemnation terminate an easement?

Yes. Government condemnation or a taking may extinguish the easement.

Testable Issue: What are the differences between an appurtenant easement and an easement in gross?

An appurtenant easement benefits another parcel of land, while an easement in gross benefits an individual.

Testable Issue: What is the two-step analysis for determining the scope of an easement?

Determine what the easement permits, then determine whether the use creates a surcharge on the servient estate.

Testable Issue: What is the Rule of Elasticity of Scope?

The scope of an easement may reasonably evolve over time under the Rule of Reason, but substantial changes such as domestic to commercial use may exceed the easement.

Testable Issue: What methods terminate an easement?

Condition, written release, merger, abandonment, prescription, destruction, estoppel, end of necessity, Recording Act, condemnation, and other applicable doctrines.

Testable Issue: Does improper or excessive use terminate an easement?

No. The remedy is an injunction, not termination.

Essay Rule: How should you analyze an easement problem after determining creation?

Identify whether the easement is appurtenant or in gross, determine its permissible scope, analyze whether the use exceeds that scope or creates a surcharge, and determine whether any doctrine has terminated the easement.

Master Synthesis: What is the complete framework for analyzing easements?

Determine how the easement was created, classify it as appurtenant or in gross, determine its permissible scope, evaluate whether the current use is authorized, and determine whether any doctrine has terminated the easement.