Holte_Propery II_Spring_2014
Outline Property II
January 13, 2014 pg 763-768, 773-799
LAW OF SERVITUDES
A servitude is an agreement that ?
· Two types
o Easements
o Covenants
EASEMENTS
What is an easement?
§ An easement is a grant of an interest in land that entitles a person to use land possessed by another.
· Easements are what might be thought of as “use” rights rather than “possessory” rights
Types of Easements
Easements are either affirmative or negative
Affirmative Easements
· The owner of an affirmative easement has the right to go onto the land of another (the servient land) and do some act on the land. Most easements are affirmative.
· Ex. When O, owner of Blackacre, grants to A a right of way across Blackacre, an affirmative easement has been created.
Negative Easements
· The owner of a negative easement can prevent the owner of the servient land from doing some act on the servient land.
· Negative easements are rare.
Easements in Appurtenant or in gross
· All easements are either appurtenant or in gross
Easements in Appurtenant (annexed to a more important thing)
· An easement created to benefit another tract of land, the use of easement being incident to the ownership of that other tract.
· If an easement benefits its owner in the use of another tract of land, it is appurtenant to that land.
· Easement appurtenants are usually transferable.
· However, easement app can be made personal to the easement owner, only and not transferable to others.
Dominant Tenement
· The land benefited is called the dominant tenement,
Servient Tenement
· The land burdened is called the servient tenement.
The servient tenement usually is, but does not have to be , adjacent to the dominant tenement.
An easement is within the statute of frauds and requires a written instrument signed by the party to be bound thereby.
Ex.
· Whiteacre is located between Blackacre and a public road. O, owner of Whiteacre, conveys to A, owner of Blackacre, a right to cross Whiteacre to reach the road.
· The easement over Whiteacre is appurtenant to Blackacre (the dominant tenement)
· An easement appurtenant is attached to the dominant tenement and ordinarily passes with the tenement to any subsequent owner of the tenement.
· Exception-personal easement:
If the grant of an easement creates appropriate limiting terms, however, it will not pass to subsequent owners of the dominant tenement.
Easement in Gross
An easement in gross gives the right to some person without regard to ownership of land.
Stated differently, an easement appurtenant benefits the easement owner in the use of land belonging to that owner, but an easement in gross benefits the easement owner personally rather than in connection with the use of land which that person owns.
· If an easement does not benefit its owner in the use and enjoyment of his land, but merely gives him the right to use the servient land, the easement is in gross.
· In gross is the term used to signify that the benefit of the easement is not appurtenant to other land.
· An appurtenant easement cannot be separated from its dominant tenement and turned into a easement in gross, unless
· the owners of the dominant and servient tenements make a new agreement permitting that.
· An easement in gross can usually be assigned as the parties so intend.
If it is unclear which type of easement is intended by the parties, the law construes in favor of an easement appurtenant.
Terminology
Dominant tenement
Servient tenement
Ex: A has an easement to use a road on B’s land in order to egress and ingress to A’s land
Affirmative vs. Negative easement
Holbrook v. Taylor pg 774
Brief Fact Summary.
The Appellants, Mr. and Mrs Holbrook (Appellant), sued to enforce a license by estoppel regarding a road he used for egress and ingress to his property. Holbrook constructed a house at considerable expense and also made repairs to the road in question.
Issue. Whether the Appellees had a license by prescription or estoppel regarding a road they used for ingress and egress from their home.
Synopsis of Rule of Law.
A license by estoppel can be created by licensor’s consent, along with the licensee’s construction of various structures and repair to the land in question.
Where a license is not a bare right of entry, but includes the right to erect structures and acquire an interest in the land in the nature of an easement by the construction of improvements, the licensor may not revoke the license after the licensee has erected improvements at considerable expense.
Held. Affirmed.
The use of the roadway with the consent of the Appellants, general improvements to the road and construction of the house on the land, creates a license by estoppel and cannot be revoked.
Restatement Third of Property section 2.10 ,provides that a servitude may be created by estoppel.
Normally the change in position that triggers application of the rule is an investment in improvements either to the Servient estate or other land of the investor.
Restatement Third of Property provides : the expectations that create the servitude define
e. The original purchaser was aware of the sewer and thus there were reasonable expectations concerning the prior existing use.
Easement by Necessity
· Requirements are different from those for an easement by implication. For the easement by necessity two requirements must be met:
Servient and Dominant parcels must have been under common ownership at one time
The use must be strictly necessary
· But there is no requirement that the easement have been in actual use prior to severance
Othen v. Rosier pg 786
Brief Fact Summary. The Plaintiff, Othen (Plaintiff), claims a roadway easement across two tracts of land owned by the Defendant, Rosier (Defendant). The Defendant had constructed a levee which made the lane so muddy that it was impassable and deprived Plaintiff of access to and from his farm.
Synopsis of Rule of Law. In order to find an implied easement, you must look back to the time of the common owner and determine whether the easement was a necessity and not a mere convenience at the time of the severance of the dominant and servient estate.
Issue. Is there an easement by necessity?
Is there an easement by prescription?
Held. There is no easement by necessity.
An implied easement may be shown if:
(1) originally there existed common ownership of the dominant and servient estate;
(2) the easement is a necessity not a mere convenience and
(3) the necessity existed at the time of the severance of the two estates.
Here, there was a common owner, Hill. However, there was no necessity because the common owner retained the ownership for 3 years of the 16 acres over which he could have accessed the road or could have been able to cross his land to the north to access the road.
In addition, it was not shown that necessity existed at the time the dominant and servient estates were severed.
There is no easement by prescription.
An easement by prescription must be hostile or adverse in character. Here, Plaintiff and others enjoyed the easement with consent or license of the Defendant. Express or implied permission could not ripen into an easement by prescription.
