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Property II
Villanova University School of Law
Taggart, Walter John

n (18) Express Easements: Classification and Manner of Creation
§ Restatement Second Definition of Easements
· An easement is an interest in land in the possession of another which
o Entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists
o Entitles him to protection as against third persons from interference in such use or enjoyment
o Is not subject to the will of the possessor of any land possessed by the owner of the interest; and
o Is capable of creation by conveyance
§ Servient estate: the land subject to the easement (burdened by the easement)
§ Dominant estate: the land benefited by the easement
o Affirmative and negative easements
§ Affirmative: holder has a right to do things which, were it not for the easement, she would not be permitted to do
§ Negative: holder 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 (RESTRICTIVE COVENANT)
· In early times, negative easements were limited to (1) easements protecting the flow of light or air in a defined channel, (2) lateral or subjacent support of a building on the land of the easement holder, and (3) easements protecting the flow of an artificial stream to the land of the holder of the easement
o Appurtenant or in gross
§ Appurtenant
· Easement attaches to and benefits a particular parcel of land (dominant estate)
· When the dominant estate is transferred, any easement appurtenant to it automatically passes with it
· An appurtenant easement cannot be conveyed without simultaneously transferring the dominant estate
· Drafting (Expressly designate what kind of easement you want)
o If the granting instrument does not describe the type of easement, courts will determine the nature of the easement from the surrounding circumstances
§ 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. Three reasons for this presumption
· 1. Since most easements are intended to be appurtenant, it’s reasonable to assume that the questioned easement was also so intended, at least in the absence of contrary evidence
· 2. Since an appurtenant easement passes automatically with a grant of the dominant estate, a finding of appurtenancy tends to protect the grantee of that estate from the consequences of an inadvertent failure to include a separate grant of an easement with a grant of the fee
· 3. Any detriment to the servient estate is usually offset by a benefit to the dominant estate. This offset would not exist if the easement were in gross
§ In Gross
· Do not attach to and benefit a particular parcel of land
· May be personal to the easement holder
o Creation of express easements
§ Sometimes created by operation of law, without the benefit of any written document or other express agreement (IMPLIED EASEMENT)
§ In most cases, easements are created by a written instrument
· Usually the writing takes the form of either a “grant” or an easement to the grantee, or a “reservation” of an easement in favor of the grantor who conveys a fee or other interest to another
§ Easements created by grant or reservation must comply with the usual formalities for the creation or transfer of an interest in real property
· Ordinarily must be in writing and signed by the grantor of the easement or of the estate from which the reservation is carved
§ In creating an interest in real property, it is essential that the drafter clearly specify whether an easement or some other interest, such as a fee or leasehold, is being created.
· Since similar formalities are required to grant an express easement and a fee, it is often unclear which was created. In construing the grant, the court attempts to give effect to the intention of the parties by carefully examining the words of the grant in light of the circumstances existing when the grant was made.
o Northwest Realty v. Jacobs (343)
§ In determining whether an easement was transferred or a fee, the court should consider
· amount of consideration
· particularity of the deed description
o not necessary that the exact physical location of an easement be properly described in a deed of an easement (any convenient location in view of the intent of the parties will suffice)
o in contrast, the grant of a fee simple absolutely requires such description
· limitation on use of the property
· purpose of the parties
o See Greaves v. McGee
· wording of the deed
o “right of way”: classic easement language
· who paid the taxes

· Unless it can be shown that the parties intended otherwise, the holder of an easement or profit is entitled to use the servient estate in a manner that is reasonably necessary for the convenient enjoyment of the servitude
· Determining intent of the parties
o The language used by the grantor in the granting instrument in the light of the surrounding circumstances
§ Whether the easement is granted or reserved (easements that are reserved are interpreted more restrictively since ambiguities in a deed are generally construed against the grantor)
§ The amount of consideration, if any, that the original beneficiary of the easement gave for the easement (the giving of substantial consideration suggests an interpretation that favors the beneficiary of the easement). Similarly, if the amount of consideration approximates what would have been paid for a fee (as opposed to an easement) this is a factor that may suggest that the parties intended to convey a fee, rather than an easement
§ The prior use of the land on which the easement is now located. If the land was used in a certain way before the easement was created, this may suggest that a continuation of that use was contemplated by the parties.
§ The subsequent conduct of the parties. If immediately after the creation of the easement a certain use was tolerated or accepted, this implies that such a use was contemplated by the parties when the easement was created
· When the instrument creating the easement fails to fix its length, width, and location, but merely establishes a right-of-way over a particular area, strip, or parcel of ground, the easement is generally construed to extend over only so much of that area as is reasonably necessary to effect the easement’s purpose. The ease-ment does not necessarily encompass the entire area mentioned in the instrument.
§ (3) reasonable and convenient use of the easement