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Property II
South Texas College of Law Houston
Moya, Olga

PROF. MOYA                    
I.        Express Easements:  Classification and Manner of Creation
A.      Easements Generally
1.              Easement.  An easement is a non-possessory right to use land in the possession of another.
a.        Restatement: An Easement is an interest in land in the possession of another which
i.         Entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists;
ii.        Entitles him to protection as against third persons from interference in such use or enjoyment;
iii.      Is not subject to the will of the possessor of the land;
iv.      Is not a normal incident of the possession of any land possessed by the owner of the interest; and
v.       Is capable of creation by conveyance.
b.       Categories (by how they are created
i.         Express Easements – arise only when landowner agrees to burden his land
                                                                                      a.     In writing – what the K and interest created is
                                                                                      b.     Only express – the others are by law; possible that B can get an easement despite A’s disapproval
ii.        Easements implied by prior existing use
iii.      Easements by necessity
iv.      Prescriptive easements (adverse possession)
v.       Irrevocable licenses or easements by estoppel
2.              Policy.  Most productive/beneficial use of land
3.              Dominant vs. Servient Estate.  The land burdened by the easement is the servient estate.  The land benefited by the easement, if any, is the dominant estate.
4.              Affirmative vs. Negative Easements.  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.  The holder of a negative easement may prevent the possessor of the land burdened by the easement from performing acts upon the land that he would otherwise have a legal right to perform.
a.        Servient’s Duty of Noninterference.  Under both negative and affirmative easements, the owner of the servient estate merely refrains from interfering with the rights of the easement holder.
5.              Appurtenant vs. In Gross
a.        Appurtenant Easement.  Appurtenant easements attach to and benefit a particular parcel of land (the dominant estate).
i.         The Tail Follows the Dog.  When the dominant estate is transferred, any easement appurtenant to it automatically passes with it.  Similarly, an appurtenant easement cannot be conveyed without simultaneously transferring the dominant estate.
ii.        Interpret from Circumstances.  When the instrument doesn’t describe the easement as appurtenant or in gross, cts will determine the easement’s nature from the surrounding circumstances.
                                                                                      a.     Presumption of Appurtenancy.  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.
b.       Easement In Gross.  Easements in gross do not attach to a benefit a particular parcel of land.  They may be personal to the easement owner.
B.       Creation of Express Easements
1.              Methods of Creation
a.        Grant.  A grantor may grant an easement to a grantee by will/deed.
b.       Reservation.  The owner of a present possessory interest in land may convey that land to a 3d party and reserve for herself an easement in it.
c.        Exception. Retains for the grantor a pre-existing interest in a described geographical part of the property or recognizes a previously existing property right in a 3d party.
2.              Stranger to the Deed.  At CL, it was not possible for an owner of land to convey that land to one person and to establish by the same deed an easement in a 3d party.
a.        Minority.  Several states have done away with it because it frustrates the intent of the grantor.
3.              Must Comply with Statute of Frauds.  To create an express easement, one must memorialize the grant/reservation in satisfaction of the following elements:
a.        In writing
b.       Identify the grantor and the grantee
c.        Manifest an intent to create an easement
d.       Describe affected lands (e.g., burdened and benefited parcel)
e.        At least signed by the grantor
4.              Exceptions to SOF.  Estoppel (detrimental reliance); part performance.
C.       Fee Simple or Easement – Analysis Framework.
1.              STEP ONE:  Look to the Four Corners of the Document.  If written document is unambiguous, ct gives full force and effect to the language.
a.        K as a Whole.  Intention of the parties (esp. the grantor) is ascertained by a fair consideration of the entire instrument w/o undue emphasis on any particular part or provision of the document.
b.       Give Effect to All Words.  Words are to be construed in pari materia and a construction should be adopted which gives effect to all words.  Each word and provision should be given that significance which is consistent with, and will effectuate the manifest intention of the parties.
Words Indicating Fee Simple
Bargain and Sell
Strip of land
All right, title and interest
Successors & assigns (not dispositive)
40 acres and also a road . . .
Words Indicating Easement
Road, roadway
Strip of land
Right of Way
Heirs and assigns (perpetual E)
Forever (perpetual easement)
Provisions Indicating Fee Simple
Substantial consideration
Specific description of the property
Provisions Indicating Easement
Nominal consideration
Nonspecific description of property
Limited specific use
Ability to relocate an easement
2.              STEP TWO:  Apply the Rules of Law.  These are well established substantive legal principles.  Rules of law have the force of law.  Cf. rules of construction.
3.              STEP THREE:  Apply the Rules of Construction.  These are rules used in construing/interpreting legal instruments.  They do not have the force of law.  The following are rules of construction set out in Northwest Realty Co. v. Jacobs.
a.        Rules of Construction
i.         Intention of parties, grantor in particular, is to be ascertained by a fair consideration of the entire instrument and language therein.
ii.        Words are to be construed in pari material and a construction should be adopted which gives effect to all words.
iii.      Construe in Favor of Grantee
iv.      Fee Simple is Presumed.  A grant is to be construed in favor of the grantee, and a fee simple title is presumed to be intended to pass by a grant of real property unless it appears from the grant that a lesser estate was intended.
v.       “Right of Way” – indicates only an easement unless document as a whole indicates otherwise.
vi.      If documents is vague as to the intent of parties, consideration given to the situation and circumstances of the parties at the time of the execution of the deed.
b.       Circumstantial Factors.  Consider the following factors:
i.         Amount of Consideration.  Nominal consideration indicates an easement.  Conversely, substantial consideration indicates FSA.
ii.        Particularity of the Description of the Property Conveyed.  Specific descriptions indicate FSA, whereas nonspecific descriptions indicate E.
iii.      Extent of the Limitation Upon the Use of the Property.  The more limited and specific the use, the more likely the interest is an E.
iv.      Type of Interest which Best Serves the Manifested Purpose of the Parties
v.       To Whom the Property was Assessed and Who Paid the Taxes on the Property.  Payment of property taxes indicates FSA.
vi.      How the Parties to the Convey

ant estate is not of such a degree as to impose an additional unreasonable burden upon the easement.
3.              No Change in Kind.  The change in use must be one of intensity and not one of kind.
E.       Cannot Use Easement to Benefit Non-Dominant Land.  The owner of an appurtenant easement cannot use the easement, nor permit its use, for the service of land which was not part of the dominant estate at the time the easement was created.  Such a use is considered a trespass.
1.              E.g., in Brown v. Voss, where Ps used an easement (for access to Parcel B) to access a house straddling the boundary line between Parcel B and Parcel C, the court held such use was misuse (i.e., a trespass).
2.              Remedy.  The remedy for misuse is an injunction, unless an injunction cannot be granted without terminating the easement.  See IV.b.i. Acts of Easement Owner, infra.
F.       Maintenance Obligations
1.              Easement Owner’s Duty to Repair.  In absence of express provisions, the easement owner has the duty to make necessary repairs so as not to interfere w/ the servient owner’s use and enjoyment of his property.
2.              Easement Owner’s Right to Improve.  In some jurisdictions, an easement owner has the right to make repairs/improvements as are required to accomplish the purpose of the easement, as long as she does not unreasonably increase the burden on the servient estate. 
a.        Hayes v. Aquia Marina, Inc.
3.              Servient’s Duty Not to Interfere.  The servient estate owner has the duty of refraining from interfering w/ the easement owner’s enjoyment of her rights.
a.        Non-Exclusive Possession.  Since the easement owner is not entitled to exclusive possession of the burdened portion of the servient estate, the servient owner can use his property in whatever manner he chooses, so long as he d/n hinder the use/enjoyment of the easement.
III.    Express Easements:  Succession
A.      Is the Easement Appurtenant or In Gross?
1.              Words in the Grant Control.  If granting instrument designates the easement as either appurtenant or in gross, the words of the grant are given effect.
2.              Intent.  If grant does not specify, determine the parties’ intent by looking at:
a.        Four Corners of the Document.  Look to the language of the grant to ascertain the parties’ intent.
i.         Words of Inheritance Not Dispositive.  “The lack of words of inheritance in a deed, devise or trust has no legal effect, nor does it create an inference as to the intent of the parties.”  Burcky v. Knowles.
                                                                                      a.     Burcky v. Knowles.  D purchased property from Garland, who reserved a “right to pass and repass over a strip of land.” 
·                     HELD:  the deed constituted an appurtenant easement.  The language created two distinct tenements, the language is clear and unambiguous, and no inference can be drawn from the absence of words of inheritance.  The language used was not personal to D, and the right reserved was not personal and temporary in nature.  Thus, the court erred in going beyond the four corners of the deed.