Property II
Interests in Land of Another and in Natural Resources Affecting Another’s Land
Section 1: Interests Created by Volition, Implication and Prescription
A. Easements, Profits À Prendre and Licenses
•Easement: interest in land in the possession of another which
a. Entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists.
b. entitles him to protection as to against third parties from interference of such use or enjoyment
c. is not subject to the will of the possessor of the land
d. is not a normal incident of the possession of any land possessed by the owner of the interest
e. is capable of creation by conveyance
•Restatement (Third):
– “creates non-possessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.”
– “Easements in gross are less personal.”
•You have the right to use the land for a limited purpose, and you have the right not to be interfered with in your use.
•Examples: the right to lay power lines in your backyard
Appurtenant v. In gross
– Appurtenant: One which benefits its holders in the use of a certain piece of land.
o Dominant: land for whose benefit the appurtenant easement is created
o Servient: land that is burdened, or used, by the easement
o For an easement to be appurtenant, its benefit must be intimately tied to a particular piece of land (the dominant tenement). It is not enough that the beneficiary of the easement happens to have an interest in a piece of land that is made more valuable by the easement.
– In gross: one whose benefit is not tied to any particular piece of land. The easement is thus personal to its holder.
Affirmative v Negative
– Affirmative: one which entitles its holder to do a physical act on the land of another. Most are of this variety.
o Ex: A owns Blackacre. He gives B right of way over Blackacre, so that B can pass from his own property to a highway which adjoins Blackacre. B holds an affirmative easement, since he is permitted to make use of A’s property.
– Negative: one which enables its holder to prevent the owner of the land from making certain uses of the land. Such easements are comparatively rare and do not permit the holder of the easement to actually go upon the property.
o Ex: A owns Whiteacre, which is next to the ocean. B owns Blackacre, which is separated from the ocean by Whiteacre. A gives B an easement of “light and air” which assures B that A will not build any structure that will block B’s view of the ocean. This is a negative easement, since it does not authorize B to go onto A’s property, but allows B to restrain A from certain uses of A’s property.
•Profits À Prendre:
•Restatement (Third):
– “An easement that confers the right to enter and remove timber, minerals, oil, gas, game, or other substances from land in the possession of another.”
– This is an easement in gross.
– These kinds of easement in gross were and are transferable.
– Traditional and majority rule however is that they are NOT transferable because they are personal.
•A property interest related to the easement is on the profit. The profit is the right to go onto the land of another and remove the soil or the product of it.
•Licenses:
– “a license is, in general, subject to termination at the will of the possessor of the land subject to the privilege of use while an easement is not… Licenses are subject to few if and conveyancing rules, and in explaining why this is true it is often said that a license is not an interest in land at all. For some purposes it must, however, be admitted that any privilege to use land constitutes an interest to land.”
– similar to an easement except revocable at the will of the licensor
•Four ways to create an easement:
express grant – usually writing
implication – part of a land transfer
strict necessity – prevent a parcel from being landlocked
prescription – similar to adverse possession
•Words creating:
– Generally, if the deed stresses that the interest is being created only for a specific, relatively narrow purpose, an easement, not a possessory estate, is created.
Reservation in Grantor:
– The owner of the land may convey that land to someone else, and reserve for himself an easement in it.
– Ex: A may give to B a deed for Blackacre, with a statement in the deed that “A hereby retains a right of way over the eastern eight feet of the property. This is called an easement by reservation.
– It is a two step process if you are conveying two parts but want to remain with an easement. Convey the whole thing, and then have the part you want conveyed back.
– You must do it the reservation way, not the way of the exception.
Mitchell v. Castellaw, Supreme Court of Texas, 1952
Facts:
•There are 3 lots of land adjoining each other.
•One is used for a filling station, and has a driveway which extends onto the lot directly next to it.
•The original owner of all 3 lots, Mrs. Stapp, granted the adjoining lot to Smith and his wife.
•The grant contained a provision that the grantee, “their heirs or assigns, shall not build or permit any one else to construct
ny, which might result from by failing to give effect to reliance on the old rule and the policy against disturbing settled titles.
Reasoning:
•McGuigan testified she reduced the price to Peterson by 1/3 because she believed the land would continue to be used for church parking and there is no evidence that Willard relied on the common law rule because he was not even aware of the deed. He was aware of the church parking and cannot claim that was prejudiced by lack of use by any time. There was also no evidence of title insurance.
Notes:
•The better thing to do would have been to convey the two easements separately, that way even if you’re in a jurisdiction that maintains the common law rule, you can still get around it.
Creation in stranger to deed:
– At common law, it was not possible for an owner of land to convey the land to one person, and to establish by the same deed an easement in a third party. As the rule was sometimes stated, an easement could not be created in a “stranger to the deed.”
– Modern view: Most modern courts have now abandoned the rule, and permit an easement to be created by a deed in a person who is neither the grantor nor the grantee. Similarly, Restatement (Third) permits the grantor to create an easement in a third party who is not the grantee (like the two step process, with a ‘fictional’ conveyance back. Make sure to use proper word of ‘reserve.”)
– Limited exception: Even among courts who recognize the common law no easement in a stranger to the deed,” an exception is often made for a use made upon the property prior to the conveyance.
Urbaitis v. Commonwealth Edison (1991)
Facts:
•Parcel of land in Kane County and both parties claim title through a 1909 deed from Mr. Dodson to the Chicago, Wheaton & Western Railroad.
•The land is 100 feet wide and 2,713 feet long.
•The deed contained the words “right-of-way” which the plaintiffs claim makes the land an easement for which they are entitled by prescription.
Issue:
•Did the Dodson deed convey title in fee simple to the railroad, or did it merely convey an easement for railway purposes?
Holding
•Fee simple to the railroad
Rule:
•More than a mere reference to the term “right-of-way” in a deed has been required for
