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


Servitudes: Non-possessory interests in property
– Classes of Servitudes
o Easement
o Covenant
o Profit
o Licenses
– Restatement 3d
o § 3.1 Validity of a Servitude; General Rule
§ a servitude… is valid unless it is illegal or unconstitutional or violates public policy
§ Servitudes that are invalid because they violate public policy include but are not limited to:
· a servitude that is arbitrary, spiteful or capricious
· a servitude that unreasonably burdens a fundamental constitutional right
· a servitude that imposes an unreasonable restraint on alienation
· a servitude that imposes an unreasonable restraint on trade or competition
· a servitude that is unconscionable
o §5.2 Persons to whom an appurtenant Benefit or Burden runs
§ Except as otherwise provided by the terms…
o §2.4


– a legally enforceable right of someone other than the person possessing the property to use the property
– Types
o Easement Appurtenant – easement to benefit another property
§ if the easement is not labeled this is the default
o Easement in Gross – intended to benefit a specific person or class of persons
– Duration
o any period of time
§ in fee simple
§ for life (life estate)
§ for term of years
– 3 ways to create
o expressly
§ written out in a deed in easement
§ issues
· when the owner gets rid of the property and grants the easement at the same time
o reservation – a provision in a deed that carves out an easement interest
§ this is okay at common law to reserve the easement for yourself, but not for a third party
o exception – recognizing that the property is subject to an existing easement
o implied
§ Prior Use (4 requirements)
· deed must convey part but not all of the grantor’s property (severance)
· before he conveyed part of the lot there was a prior use of that part to benefit the other part of the lot
· the prior use must be apparent at the time the severance occurs – visible or readily discoverable
· creating an easement must be necessary to the benefited estate
o some courts say it must be strictly necessary so that the owner of the dominant tenant cannot make use of his property w/o easement
o most courts only require reasonable necessity so that the easement would be beneficial to the dominant tenant (MI)
§ Necessity (3 requirements)
· severance of properties that were part of a common title
· creating the easement must be a necessity
o most courts use strict necessity (MI)
o some courts use reasonable necessity
· the necessity existed at the time of severance and still exists
o prescription
§ 5 requirements
· actual use
· exclusive use
o does not mean landowner does not use it, it just means that this user is using it despite the landowners use and the landowners uses does not interfere with it
· open and notorious
· under claim of right
o no permission (this is the hardest issue to overcome)
o silence is not permission it is acquiescence
o it is hard to draw a line between permission and acquiescence so the solution is the Fiction of the Lost Grant (MI)
§ Assume that somewhere back in time there was a grant of easement that has been lost
§ If no F of the LG then burden on P to prove there is no permission
· Continuous for a statutory period (15 years in MI)

Property Affected by Easement Appurtenant
– Servient Tenement
o property subject to the easement
– Dominant Tenement
o property benefited by the easement

Kitchen v. Kitchen
– if a license is for longer than 1 year the Statute of Frauds requires that it be granted in writing

Willard v. First Church of Christ, Scientist
– Church Parking lot case
– this is defaulted as an easement appurtenant because the grant is ambiguous
– Easement in Fee simple determinable because it cuts off when not used for specified purpose
– Rule at Common Law
o you cannot reserve a newly created easement for a third party when you are deeding a property
– How else could she have granted the easement
o give a deed of easement, subsequently sell property with an exception for the easement
o reserve the easement for herself and then transfer it to the church

Van Sandt v. Royster
– sewer running through three lots
– Test
o were the lots a division of a common property
o was there prior use
o was the prior use apparent
o was it necessary to the owners of the other parcels
§ court here uses reasonable necessity standard
– when looking at prior easements the court tries to determine what was in the minds of the parties at the time of the grant
– the court answers yes to all of the test questi

the subdivision will create an undue burden (significantly more traffic)
o easement denied to development company

Transfers of Easements

Transfers of Easements
– Burden
o If the owner of a servient estate transfers the estate to another party the burden transfers with the estate
o If the owner of the servient estate subdivides it the burden attaches to each parcel unless related by geography only to certain parcel(s).
– Benefit
o Easement Appurtenant
§ Dominant Estate Transferred
· benefit transfers with dominant estate
§ Dominant Estate Subdivided
· benefit attaches to each parcel unless it would create an undue burden on the servient estate
o Easement in Gross
§ Common Law
· not transferable
§ Modern Law
· transferable unless contrary to intent of parties and divisible unless contrary to intent of parties or unreasonably increases burden
– cases finding undue burden are rare because courts assume that parties can foresee economic development

Miller Lutheran Conference & Camp Assoc. [824] – Facts
o Two brothers create man made lake, bathing rights granted by brother who did not have them to grant (Frank to Kathrine) and also granted by holder of the rights (Rufus to Luthrans) to two separate parties
– Easements
o Easements in Gross
§ prescriptive easement – bathing rights (Rufus/Katherine)
§ express easement – fishing and boating rights (Frank)
– Common Law Rule Rejected
o easements in gross are not transferable
§ because this was a commercial easement in gross the rule does not apply
§ the original grant shows the easement was intended to be assignable
– One holder of a joint easement cannot act unilaterally to subdivide the easement.
o One Stock Rule: everyone must consent – think of the problem of externalities (one party gets all the benefit and the other gets all the detriment)