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

 Servitudes
I.        Overview
A.      4 types
Servitude Types
2 MAJOR CLASSES
2 MINOR CLASSES
EASEMENT[1] –    subject to Statute of Frauds
–    Binding for term of grant.
COVENANT
LICENSE
PROFIT
Appurtenant à benefits the land (without regard to who owns it). 
q Judicially preferred to in gross if ambiguous
Real covenants à run with land at law
Non-possessory interest in property that
1)   may be created orally
2)   is revocable at will, unless:
a)       coupled with an interest[2] b)       Estoppel (by virtue of equities of situation, see Holbrook).
Right to use property by removing product attached thereto
In Gross à benefits a person or class of persons
Equitable servitudes à run with land in equity.
 
Easements
B.      Property affected by Easement Appurtenant:
1.       Servient Tenement – Property subject to the Easement (person who possesses = servient tenant)
2.       Dominant Tenement – Property benefitted by the easement (person who possesses = dominant tenant)
Kitchen v. Kitchen SCMI 2002 h197 License (written or oral) typically revocable; exceptions: 1) coupled w/ interest 2) licensor is estopped; irrevocable license by estoppel failed under MI SoF
 
C.      Easement: interest in property held by someone other than person who possesses. 
 
D.      3 ways to Create Easements.
 
1.       Creating Express Easements – 2 ways
Grantor retains servient tenement
Grantor conveys servient tenement
Deed of easement to holder of dominant tenement or holder of easement in gross.
 – (grant without sale??)
(i.e., grantor is giving someone else an easement on grantor’s retained property??)
1)       Reservation
q Grantor creates new easement in grantor’s favor when conveying servient tenement
q I.e., grantor sells land, but keeps easement for himself or his property.
q Under common law, can only reserve for yourself. 
2)       Exception
q Grantor carves out from grant (pre) existing easement when conveying servient tenement.
q I.e., sell subject to a pre-existing servitude
II.      Willard v. First Church of Christ (SCCal 1972) pg. 785
A.      Facts: Old lady first deeds lots to Petersen subject to an easement that the church could park on the lot as long as it was a church. Petersen then deeded land to Willard without any mention of the easement. Willard found out and then brought lawsuit to quiet title. 
B.      Issues: is the easement valid?
1.       At common law, reservations in favor of 3rd party is no good.
2.       Supreme court abandons rule (bails out malpractice of lawyer):
a.       intent of grantor should be honored
b.       feudal origins of rule are outdated
c.        economics – she charged less b/c property was burdened by easement. But, how do we really know this is true. 
3.       Supposing common law rule still in force, how could she have done what she wanted?
a.       First, grant easement to church, then deed property to peterson with exception
b.       First, convey property to peterson, with reservation to herself. Then, convey easement she retained to church.
c.        Deed property to church, then they deed to peterson with reservation for themselves.
d.       Deed lot 20 to Peterson, Peterson deed easement to church
C.      The first deed has an easement appurtenant in fee simple, determinable
1.       see language pg. 790 – if church moved, would they still have right? No, therefore easement appurtenant. 
2.       Also, easement lasts while use for church purposes… “so long” … therefore determinable.
 
2.       Creating Easement by Implication (IMPLYING INTENT)
a.       prior use – 4 elements
 
CREATING AN IMPLIED EASEMENT BY PRIOR USE [elements] 1. severance of commonly owned parcels
2. use prior (to severance) that would constitute easement if parcels were not commonly owned[3] 3. prior use was apparent. 
q I.e., visible or ascertainable by reasonable inspection
q Actual or constructive knowledge
4. Easement is necessary to dominant tenement.
Majority
Minority
Reasonable necessity[4] Strict necessity
 
III.   Van Sandt v. Royster  pg. 796
A.      Facts: See page 206 of Handout. Sewage line running over 2 properties to get to street.
B.      Issue: Easement by prior use? – court says yes. Court uses reasonable necessity and rejects strict necessity requirement.
1.       severance? Yes
2.       prior use? Yes
3.       apparent? – underground, but court says constructive notice since your sewage can’t just disappear into thin air.
4.       Nece

sement by necessity, Easement by prescription, (easement by prior use? Didn’t argue).
3.       Easement by necessity
a.       there is severance. They are landlocked, but, is easement over 16.31 necessary? – No. Also not necessary across 100 because there are other options. So, while necessity exists today, there was no necessity at time of severance. So, court is using strict necessity, which is not met here.
b.       I.e., court looking for evidence that this was the only way out. 
4.       Easement by prior use? Didn’t argue, but could he have?
a.       No, problem with element 3. No north fence till 1906, so location of prior use probably didn’t exist until after, therefore not apparent. Other elements probably met.
5.       Easement by prescription
a.       no AP since his use was permissive… how do we know it was permissive: the gate. This makes it look permissive. Not exclusive use.
q Note: usually hard to tell permissive vs. acquiescence. Look for a letter giving permission – this defeats prescription. But, if no letter, how to prove? Usually who wins depends on where court places the burden. In this case, court placed it on Othens (one trying to claim there is an easement).
q See “lost grant” below.
b.       Also, court says not open and notorious since the road could move around. Pretty weak argument.
c.        Finally, Hill can’t be adverse to himself, so his use doesn’t count.
[1] can run for same length as possessory interest. E.g., if forever è Easement in fee simple.
[2] That is incidental to licensee’s ownership of chattel on licensor’s property.
[3] Because you can’t have an easement to oneself
[4] Basically, the easement is “beneficial” to dominant tenant.
[5] Note: Easement by necessity disappears at moment necessity disappears.
[6] Strict necessity means that this is absolutely no other way.