Select Page

Property II
University of South Carolina School of Law
Wilcox, Robert M.

Property II


Spring 2011


a. Easement: a property interest that has remained with the grantor (has been reserved) or has been transferred to the grantee (has been granted via deed)

i. i.e. driveways, utility lines, railroads

ii. Feature

1. Not easily revocable

2. Not a possessory right, but rather the right of USE or take something from the land

3. Affirmative: positive right to use someone else’s land

4. Negative: Limits the use of the owner’s land, crosses into restrictive covenants

a. Right of view/scenic easement

iii. Dominant estate: Benefited estate, the one that benefits from the easement

1. Not all estates have a dominant, i.e. in gross easement benefits the person not the land/ estate

iv. Servient estate: Burdened estate, the one that bears the burden of easement

v. Location of the easement

1. The servient owner typically chooses the location of the easement, although if the servient owner doesn’t make a reasonable selection, the dominant owner can step in

2. Every easement has a servient estate

b. Appurtenant easement: Land Easement, “Stapled to the land”

i. right of use that is attached to the ownership of the land; conveyed along with the land, benefits the piece of land; usually transferrable

ii. Driveway with a home purchase, you will not purchase the land without access to the property; therefore the easement is attached to the parcel not the person

iii. Elements:

1. Some level of necessity

2. Touches & Concerns

a. Goes with the land, not the individual person

b. Would it affect the value of the land?

c. Affects you as the owner, it is more important to you because you own the land

3. Has one terminus on the dominant estate

c. Easement in gross: Personal Easement

i. right of use that benefits an individual and is not attached to the ownership of a piece of land; not usually transferrable and typically ends at the holder’s death

1. Ex: You have a beach front lot and you sell it but you want to be able to park on that lot to continue to have access to the beach, so you reserve an easement in gross to be able to cross the land

ii. If it is “In Gross” for COMMERCIAL easements, those are conveyable BECAUSE that business will be tied to the value of having that easement, so the intent must have been that the parties intended the Esmt to continue

d. Profit: the right to remove, typically minerals, timbering; for Wilcox- treated the same as an easement because principles are the same

i. Right to enter another’s land without liability of trespass

e. Creation of easements

i. Express grant: the bilateral agreement to create a property interest to benefit someone or some piece of land

1. Looks like a deed of a fee, but the language distinguishes right to USE

a. “Reserve” and “for use” suggest an easement, while “right of way” and “strip of land” sound like a fee

2. Grantor becomes the servient owner

3. Often part of a greater transfer of land

4. Must comply with SOF- Rest. Section _____

ii. Express reservation: leaving a property right for the grantor of land

1. Grantor becomes the dominant owner

2. I give you Lot B, but as the grantor, I reserve the right to use the access road easement to the lot

iii. Create an easement the same way you create a fee – through a deed

iv. While the language of a deed of an easement does not have to satisfy stringent writing requirements MUST identify the servient estate

1. Berg v. Ting- must be specific and adequately describe the estate

v. When distinguishing between a fee and an easement, the LANGUAGE makes the biggest difference, but also consider:

1. Location

2. Use

a. Ex: use of a driveway was probably not meant to be a fee

3. Substantial consideration

a. Indicative of an easement

b. Ex: $20 was probably not meant for the entire fee

4. INTENT of the parties

a. Problem One in Supplement

II. Licenses

a. License: a contractual concept that does not require a deed; a mere personal privilege to commit some act or series of acts on the land of another without possessing any estate therein

i. Revocable at any time- KEY

ii. CAN be made irrevocable if actions by licensee in reliance on the agreement make it inequitable for licensor to revoke the license

iii. License- consent to use the property

iv. Oral agreements typically imply a license- oral contractual relationship, not a transfer or assigning of property rights

III. Distinguishing between a License and an Easement & Determining whether any event has happened that would change one to the other

a. Length/definitive time limit suggests a possible easement

i. Millbrook Hunt v. Smith: P has a “lease and easement agreement” to use Smith’s land for hunting, but Smith is anti-hunting. The “lease and easement agreement” automatically indicates a drafting problem. The words read, “agreement is good for 75 years unless terminated sooner pursuant to the terms of the lease.” Held, for Millbrook: the parties expressed their intent to reserve to P a permanent right to fox hunt on the land. It was an absolute right to hunt for the period, not revocable. An essential feature that distinguishes it from a license is the 75 years, a definite period.

1. Length of time definite

b. A designated area usually indicates an easement- specific placement

c. Substantial consideration paid

d. Allowed to make improvements/ repairs/ exercise control

e. Part of a deed- easement

f. Easement by estoppel: a court ordered easement created from a voluntary servitude, after a person, mistakenly believing the servitude to be permanent, acted in reasonable reliance on the mistaken belief

i. Looks like an easement because you have taken away the right to revoke

ii. Ricenbaw v. Kraus: The original owner of P’s property obtained oral permission from the original owner of D’s property to construct a drain on the D’s estate. Looks like a license because oral agreement. P has constructed a drain with 400 tiles and 50 years has passed allowing the drainage. By doing this, the original license became an easement by estoppels, since P was out of pocket for his reliance on the license and it would have been unfair not to recognize the easement as such.

1. Wilcox: although 50 years has passed, time is not change the license status. You may revoke a license at any point, 5 years or 50 years.

2. Allowed to be an easement because of RELIANCE on the mistaken belief and substantial investments

iii. Easement by estoppel can also arise from a servient owner benefitting from the easement

iv. Part performance: If the original intent was not to create a license but to create an easement once expenditures, improvements, etc. had been made, an oral K wiL be enforced as an easement. Oral K does not satisfy the SOF, unenforceable but Part Performance allows enforcement; To determine whether there has been part performance Berg v. Ting:

1. Delivery and assumption of possession

2. Consideration (payment or te

ean visible; it can exist where we do not necessarily see the item

3. Reasonable person test to inquiry

vii. Continuity of use: There can be no significant gap during the PRIOR use and there must be REGULARITY of use. What happens after (i.e., the conveyance of the deed) is irrelevant. The more frequent the use, the more likely the parties intended the use to continue

viii. Necessity of use

1. On a continuum, necessity here is closer to “mere convenience” than “strict necessity.”

ix. Intent of the parties to create an easement

e. Necessity: if the easement is indispensable to the reasonable use and enjoyment of the property, the easement should be honored. This easement does not necessarily last. Once the necessity ends, the easement will end (i.e. put in another road for access to main street) Elements: Boyd v. Bell South

i. Common ownership

ii. Severance of title

iii. Necessity for the easement existed at the time of the severance.

1. On a continuum, necessity here is closer to “strict necessity.”

f. Wilcox: argue for both necessity and prior use because once necessity element ends, necessity implied easement will end. Prior use will continue

g. Discussion of the NECESSITY element

i. For a grant, less necessity is required because if you imply an easement by a grant, you apply it in addition to what you’ve given.

ii. For a reservation, more necessity is required because when you imply an easement by reservation, it’s inconsistent that you would be giving something and keeping something.

1. Courts want to be absolutely certain of the intent of the parties before they imply an easement based upon necessity. Therefore, if the easement wasn’t part of the grant, the court needs greater proof/a higher degree of necessity.

iii. If the necessity is high enough, the other elements of easement by necessity are not required.

1. Hurlocker v. Medina: The bank got 2 parcels of land from different owners and sold a landlocked parcel to P. P sued for an easement by necessity across the other parcel and the court held that, as long as the two plots are owned by the same entity, it doesn’t matter that the parcels were two different plots of land. There is unity of title sufficient to satisfy the elements of easement by necessity. There’s no way the parties intended NOT to have an easement over Lot A b/c Lot B would be landlocked.

iv. If there’s an alternative route that a person could use instead of having the easement in question, the court must ask how reasonable that route is (i.e., in terms of expenses needed to create a road there, danger, etc) to determine whether necessity is satisfied.

v. Necessity can exist even if there’s a license elsewhere because a license is revocable.

vi. TWO TEST of necessity

1. What is the necessity at the time of severance?

2. Is it still necessary?