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Property II
South Texas College of Law Houston
Moya, Olga

PROPERTY II
ASSIGNMENT 18: EXPRESS EASEMENTS: CLASSIFICATION AND MANNER OF CREATION
A. THE CONCEPT OF SERVITUDES
B. EASEMENTS
RSMT § 450 defines an “easement” as follows:
An easement is an interest in land in the possession of another which
entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists;
entitles him to protection as against third persons from interference in such use or enjoyment;
is not subject to the will of the possessor of the land;
is not a normal incident of the possession of any land possessed by the owner of the interest; and
is capable of creation by conveyance
C. AFFIRMATIVE AND NEGATIVE EASEMENTS
D. APPURTENANT OR IN GROSS
Appurtenant Easements
Easements In Gross
NOTE:
RR, pipelines, and utilities USUALLY get easements in gross b/c doesn’t matter where located or if relocate b/c its benefiting that entity NOT the land, i.e. the dominant estate
Easements In Gross
Ex.
NOTE:
English law does NOT recognize easements in gross, BUT they are fairly common under American law Kurt, the owner of Blackacre grants an easement across Blackacre to a RR company. The RR company does Not own any land in the area. Since the easement is NOT appurtenant to any parcel, it is an easement in gross do NOT attach to the land and benefit a particular parcel of land, RATHER they may be personal to the easement owner
Appurtenant Easements
When the dominant estate is transferred, any easement appurtenant to it automatically passes w/ it – similarly, an appurtenant easement cannot be conveyed w/out simultaneously transferring the dominant estate
General Rule of Law: Presumption of Appurtenant over In Gross:
→ Reasons for Presumption:
1. Since most easements are intended to be appurtenant, it is reasonable to assume that the questioned
easement was also so intended, at least in the absence of contrary evidence
2. Since an appurtenant easement passes automatically w/ a grant of the dominant estate, a finding
of appurtenancy tends to protect the GE of that estate from the consequences of an inadvertent
failure to include a separate grant of an easement w/ a grant of a fee
3. Any detriment to the servient estate is usually offset by a benefit to the dominant estate, and this
offset would NOT exist IF the easement were in gross
If the recipient of the easement owned a nearby parcel of land that would benefit from the easement, it is presumed that an appurtenant easement was created UNLESS there is strong evidence to the contrary attach to and benefit a particular parcel of land, called the dominant estate
Easements are classified as “appurtenant” or “in gross” – these terms help to describe the people who may benefit from the easement, NOT the person or property burdened by the easement
Easements are classified as either affirmative or negative
The holder of an affirmative easement has the right to do things which, were it not for the easement, she would not be permitted to do Carl owns Blackacre and Whiteacre. Carl grants Blackacre to Denise, reserving the right to use the road crossing Blackacre in order to have access to Whiteacre.
Ex.
The holder of a negative easement may, by virtue of the easement, prevent the possessor of the land burdened by the easement from performing acts u

equired to comply w/ the servitude despite the fact that she never expressly agreed to comply – similarly, the benefit of a servitude often runs w/ the land benefited by the servitudeand equitable servitudes are among the most important types of servitudes NOTE: two other types of servitudes are profits and licenses
The land subject to the easement (i.e. burdened by the easement) is called the servient estate, and the land benefited by the easement, if any, is called the dominant estateDominant and servient estates
Alice owns Blackacre and B owns Whiteacre. Alice grants Ben a right of way easement that permits Ben to use a road across Blackacre to get to Whiteacre. Whiteacre is the dominant estate and Blackacre is the servient estate, i.e. Blackacre is burdened by the easement and Whiteacre is benefited
Must Comply W/ Statute of Frauds-
o
o
o
o
o
o
§
Exceptions:(later in course): Detrimental reliance; Partial performance
Must be signed by GR. If appurtenant easement, should reference dominant estate.Must describe the land affected (servient estate)Must contain words manifesting an intent to create a property interest.Identify GR and GEIn writing
The grant of an easement is subject to the statute of frauds. A person cannot own an easement in their own land.
Ex.
Easements, real covenants