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Property II
University of South Carolina School of Law
Burkhard, James R.

Property II, Burkhard – Spring 2010

Easements Generally
Ø Property right
Ø Not revocable
Ø Right to use; generally not a right to possess
Ø Examples: Railroad, Utility companies, Right of use
Ø Types
· Affirmative
o Positive right to use someone else’s land
· Negative
o Limitation on the use of the owner’s land
o Crosses over into restrictive covenants
Ø Nature
· Appurtenant
o Easement attaches to a particular piece of land & is conveyed with the land
o Benefits a particular piece of land
o Elements
§ Some level of necessity
§ Touches & concerns
v Goes with the land, not the individual person
v Would it affect the value of the land?
v Affects you as the owner – it’s important to you because you own the land
§ Has one terminus on the dominant estate
v Particular to SC
· In gross
o No piece of land is benefited (attaches to no piece of land)
o If an easement is not appurtenant, it is in gross

Ø Classifications
· Dominant estate
o Parcel that enjoys the benefit of the easement
· Servient estate
o Bears the burden of the easement or is the land subject to limitation

Definitions
Ø License – permission granted by a landowner to another person to use his/her property.
Ø Profit – right to enter another’s land, without liability for trespass, and remove minerals, timber, wild animals, fish, soil, water or other things constituting a natural part of the land.

Easement vs. license – holbrook v. taylor
Ø License is revocable
· But license may be remade irrevocable if actions by licensee in reliance on agreement make it inequitable for licensor to revoke the license
Ø License is consent to use property
Ø Oral agreement generally implies a license, rather than an easement
Ø Indications of an easement, rather than a license
· For a specified time
· For a designated area
· Substantial consideration paid
· Allowed to make improvements/repairs or exercise control
· Part of a deed
Elements
Ø Creation (Express or Implied)
Ø Scope (Height, Width, Location, etc.)
Ø Assignability/Transferability (Appurtenant v. In gross)
Ø Termination

TYPES of easements
Ø Express
· Grant: give the easement to someone, makes your land the servient estate
· Reservation: grantor conveys the land that will be the servient estate (keeps the benefit for himself)
o Remember Statute of Frauds implications. If not in writing and does not fall under an alternate theory, it is more than likely a license.
Ø Implied – Easement that the court recognizes because they believe the parties intended to create it, but forgot to do it; recognizing an interest, even though it wasn’t in the writing
o Prior Use
o Necessity
o Prescription
o Dedication
o Public Trust

Creation – Express Easements
Ø Express – must comply with Statute of Frauds(SOF)
· Grant
o “I grant an easement for the use of . . .”
o Must adequately describe the servient estate, parties, use, etc.
· Reservation
o “I sell you this property, but reserve an easement . . .”
o At CL, cannot reserve for 3rd parties, but modern courts may look towards intent
Creation- Implied easements
Ø Prior use
· Prior to land being divided, it was being used in a way that should continue
· Permanent easement
· Elements
o Unity of title
§ Severance from a common owner when use was in existence
o Regular use
§ The more frequent the use, the more likely that the parties intended the use to continue (evidence of intent to continue using it)
o Apparent
§ Must have been apparent to servient owner (not necessarily visible) that dominant owner was using the easement
o Intent to create easement
o Necessity
§ No other reasonable mode of enjoying the dominant estate
§ Enough that one would expect the use to continue

Creation – Implied Easements
Ø Necessity
· Generally
o Look at situation at time of severance to determine whether or not there is an easement
o Look at when the necessity arises to determine where easement is
o In general, if you can get to the land, you don’t have an easement by necessity
o Servient owner can designate a reasonable place for easement
§ If servient owner doesn’t designate a place for it, dominant owner may reasonably place it
o Generally an appurtenant easement
o If you had a revocable license to get off the land elsewhere, the easement is still there
· Elements
1. Unity of title
2. Severance
3. Reasonable necessity (higher standard than easement by prior use

Ø Easement by Prescription
· Elements needed (C.H.O.A.N.E.)
o Continuous use of owner’s land for 20 years
o Use is Hostile to the Owner’s right
o Use is Adverse
§ Courts will presume acquiescence without express consent
§ Expressed consent is not adverse
§ Landowner’s consent for use will defeat a prescriptive easement
o Use was Open and Notorious with knowledge of landowner
o Use was Exclusive and separate of other’s claims to right
Ø Dedicationrequires:
· Intent to dedicate the property expressed in a positive and unmistakable manner and
o Intent may be implied from allowing lengthy public use of the land.
o Dedication may not be implied from permissive, sporadic and recreational use of the property.
o The evidence must show that the owner clearly, convincingly, or unequivocally intended to dedicate the property.
· Express or implied public acceptance
o Acceptance may be implied by use or;
o By a showing that taxes are not being assessed on the property.
· NOTE: In cases where Ct finds dedication, county has usually done a lot of road maintenance
Ø Public Trust – The land covered by tidal waters belongs to the sovereign for the common use of all the people.

Alternate Theory
Ø Irrevocable License (Equitable Estoppel)
· Elements
o Servient estate originally grants a license
§ Can be revoked at will
o Dominant estate
§ Makes a significant investment in reliance on the license, or
§ Relies on the promise of a license and incurs a detriment
o Servient estate is estopped from revoking the license
§ License can not be revoked until the reason it is revocable is removed
§ Irrevocable license may again become revocable when the value of the license has been realized
Assignability of Easements
Ø Appurtenant
· Easement is attached to both dominate estate (as a benefit/right) and servient estate (as a burden)
o Must touch and concern the land
· Transferability
o Runs with the land at conveyancing
o Attached to ownership of the land: goes hand in hand with the title
· S.C. Rule: In order for easement to be appurtenant, it must have a terminus on the land
Ø In Gross
· Easement benefits an individual or business rather than the land
· Transferability
o Benefit does not run with land at conveyancing
o Burden will run at conveyancing
· *Important* Personal and Non-Commercial In Gross Easements are not assignable/transferable unless there is express authorization in the document creating the easement.
· In Gross for Commercial Use
o Easement is Transferable because it concerns the land
o Exception to In Gross rule

Willard v. First Church of Christ, Scientist
Ø When Peterson bought a lot from McGuigan, the deed reserved an easement on the lot for the use of the Church. Peterson then sold the lot to the Willards without the easement.
Ø Rule of Law:
• Contrary to the ancient common-law rule, modernly, a grantor, in deeding property to one person, may effectively reserve and vest an interest in the same property in a third party.
• Court’s primary objective in construing a conveyance is to try to give effect to the intent of the grantor.
• Peterson could not sell something to Willard that he did not own therefore, Willard is not off the hook regarding the easement owned by the Church.
• The Court must balance the injustice which would result from refusing to give effect to the grantor’s intent against injustice, if any, which might result b

ce with investment-backed expectations since the lot sat empty for 30-40 years.
Ø Important: The State holds presumptive title to land below the high water mark.”

Query v. Burgess
Ø When property is bounded by a tidal navigable waterway the boundary line is the high water mark, in the absence of more specific language showing that it was intended to go below high watermark, and the portion between high and low watermark remains in the State in trust for the benefit of the public.
· The State may, however, grant private individuals an ownership interest in tidelands.
· To establish ownership of tidelands or marshlands, a claimant must show
1. the claimant’s predecessors in title possessed a valid grant, and
2. the grant’s language was sufficient to convey title to land below the high water mark.
Ø A deed or grant by [the State] is construed strictly in favor of the State and general public and against the grantee.”
Ø Query concedes the Folly River is a tidal navigable waterway.
Ø If you can establish a claim of title from the king or lord, or to the original owner, and can demonstrate that the conveyance intended to convey to the particular point, it will be enforced
Miller v. Lutheran Conference & Camp Association
Ø Rule of Law:
· an easement in gross may arise by prescription and is assignable if the parties to its creation so intend
Ø An easement in gross
· May arise by prescription.
o Creator cannot intend it to be assignable if it is created by prescription
· Is assignable if its creator intends it to be
o If commercial in nature, presumption is that it is assignable
· Is divisible if it is used or exercised by its entirety.
o “One Stock” Rule in order for division to be valid and continue, parties have to exercise their rights together. Each party has veto rights over the other party’s use
Windham v. Riddle
Ø Holding: Because we hold the easement was in gross and thus the Riddles had no right to use the easement, we find the master erred by not enjoining the Riddles from using the easement.
Ø Windham v. Riddle (2009)
· SC elements of appurtenant easement: (must have all)
1) inhere in the land
2) concern the premises
3) have 1 terminus on the land of the party claiming it
4) necessary to the enjoyment
· it is not an appurtenant easement because there is no terminus on the land claiming it…the reference in the conveyance of 1992 was for Cov, there is no dominant estate
· Ct reaffirms SC continues to follow the rule of conveying an easement in a stranger—footnote 1
Gressette v. sce&g
Ø Facts: Appellants (Landowners) commenced this class action against respondent (SCE & G) for trespass, unjust enrichment, an injunction, and declaratory judgment. Landowners claim SCE & G’s conveyance of excess capacity on its fiber optic cables was an improper use of the electric easements granted by Landowners to SCE & G.
Ø Holding: While this language indicates assignability, the language limiting the use of the easement to communications necessary to SCE & G’s business appears to restrict that assignability. This ambiguity requires construction of the written easements themselves.