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Property I
Wayne State University Law School
Bartell, Laura B.

I) Servitudes- rights with respect to property which do not include possession
A) Easements – legally enforceable right of someone other than the person possessing the property to use property, physical incursion.
1) Appurtenant – intended to benefit specific property; run with land
(a) Judicial preference for this type, if NOT clear
(b) Whoever owns the estate which the easement is attached to can use the easement.
(c) No other estates can use the easement, even if it would NOT increase the burden
(d) Can have multiple dominant tenements with the intent of the parties
2) In gross – intended to benefit specific person or class of persons (usually limited to just that group’s use)
3) Duration is the same as for estates; same language used
(a) forever, lifetime, term of years (same labels as estate law)
(i) easement fee simple, easement for life, easement for term of years
4) Parties to an easement
(a) Servient tenement – the one burdened by the easement
(i) property subject to easement
(ii) owner of is servient tenant
(b) Dominant tenement – the one USING the easement; getting the benefit
(i) land easement is benefiting
(ii) dominant tenant- owner of land benefited by easement
§ no dominant tenant in easement in gross
5) Ways to create an easement
(a) Expressly –
(i) Writing out a deed of easement; NOT orally
(ii) Owner of land conveys to someone else an easement on the property
(iii) Very few issues arise b/c it is clearly expressed
(iv) When owner gets rid of property and conveys an easement at the same time
§ Reservation (CL)– provision in the conveyed deed of the whole property under which you reserve an easement
1. For own benefit, OR
2. Someone else’s (third party’s) benefit (NOT allowed under CL)
3. when you create an easement at the time of transfer of ownership.
4. at CL, a reservation could create a new easement in favor of grantor, not for someone else.
§ Exception (CL) – when an easement already encumbers the land. You sell the property and take exception for the easement, saying that the land is still subject to the easement
1. take an exception to fee simple…already given rights to easement to someone else
(v) Willard v. First Church of Christ
§ lady owns 2 parcels (19& 20)
§ church across street, she allows parking on property
§ Peterson wants to sell
§ Willard wants to buy lot 20 as well
§ lady sells she will sell only if there is a clause in deed creating an easement for the church

or readily discoverable by reasonable inspection at moment the property is settled
§ Necessary to the benefited/dominant tenement. Courts differ on what this means.
1. Strictly necessary – where owner can’t make use of the property without the easement (minority) i.e. the property is landlocked and you need an easement to get to it
2. Reasonably necessary (MI; majority)
§ Van Sandt v. Royseter – drain connects to public sewer (796, 2)
1. Owner split lot into 3 and sold them; drain runs under two created lots
2. 4 requirements analysis:
a. Severance – yes, owner split and conveyed in parts
b. Prior use – drain used at time of severance
c. Apparent – working plumbing forces the implication there has to be some drainage across the property
d. Necessary – reasonable standard applied
With all the requirements met, there is an implied easement. Had the parties who bought the lots sat down and talked about it, there would have been an easement agreed upon, so the court implies one.