Property II
Dernbach
Spring 2013
I. Private Land Use Controls: The Law of Servitudes
a. Easements (an interest in real property)
i. Right to use real property of another for a specific purpose
1. Right of way
2. Ability to cross
3. Non possessory right
ii. Profits a prendre
1. Rights to take off the land things that were though of a part of the land
2. Timber, minerals, game, fish
3. Profits were for the common wealth
iii. Types
1. Affirmative
a. Each easement, granted by a servient owner, gave a neighbor the right to enter or perform an act on the servient land
2. Negative
a. Easements forbidding one landowner from doing something on his land that might harm a neighbor
3. Easement Appurtenant (majority favors)
a. An Easement whose use is connected to another property
i. Have to cross 1 property (Servient Estate) to get to another property (dominant estate)
1. Dominant estate because they are benefitted by easement
2. Servient estate because they must give Dominant access to cross the land
ii. Most of the time about a right of way
b. Give the right to whomever owns a parcel of land that the easement benefits
c. Benefits the easement owner in the use of land belonging to that owner
d. Requires
i. Dominant tenement (or estate) AND
ii. Servient tenement
e. Attaches to and benefits the dominant tenement; usually transferrable but can be made non-transferrable
4. Easement in gross
a. When his or her right to use the easement is not connected to the ownership of any piece of property
b. Gives a right to some person without regard to ownership of land
c. Benefits the owner personally rather than in connection with use of land which that person owns
d. Don’t have a dominant estate
i. Pathway that crosses 2 properties to get to a public beach
5. Express written easement
a. Conveyance of easement
i. Give the right to others to cross
b. Reservation of easement
i. Keep an easement so you can cross the property
c. Expresses intent of parties
d. Can be recorded
e. Less confusion
f. Evidence of agreement if dispute arises
iv. Willard v. First Church of Christ, Scientist (p. 768)
1. McGuigan owned 2 parcels of land, building on one and empty lot on other; allowed church across the street to use empty lot for parking
2. McGuigan sold lot with building to Peterson; Peterson sold this lot to P who also wanted the empty lot.
3. Peterson purchased empty lot from McGuigan after McGuigan put an easement on the property for church to continue to park on it
4. MàPàW (easement put on before Peterson took property)
a. Reservation because it’s a new easement reserving the easement for the church
b. Peterson couldn’t convey the easement because he can’t convey what he doesn’t own
c. Peterson’s deed to Willard should have contained an exception for the easement (old easement)
5. Deed that transferred the lot to P did not list easement
6. Issue – Can a grantor reserve an interest in that property to another party?
7. Common Law Rule – One cannot reserve an interest in property to a 3rd party in the same transaction as you grant property to a 2nd party
a. Create and easement at the same time you convey property
b. Cannot convey property to A and create and convey an easement to B in the same transaction (can reserve easement for self)
8. Modern Rule (minority rule)
a. Can reserve an easement in a 3rd party in the same transaction as you grant property to a 2nd party
b. A reservation allows a grantor’s whole interest in the property to pass to the grantee, but revests a newly created interest in the grantor
i. Reserving an easement for herself (new easement is a reservation)
ii. An Existing easement during a conveyance is an exception (old easement is an exception)
c. Restatement 3rd – an easement can be created in favor of a third party
d. An exception is different than a reservation
i. Prevents some part of the grantor’s interest from passing to the grantee
ii. Cannot vest an interest in a third party and the excepted interest remains in the grantor
e. Try to give effect to the intent of the grantor
i. Conflicts with Common law rule
1. Frustrates the grantor’s intent
2. Produces an inequitable result because original grantee likely paid less for the property
ii. In this case P didn’t even read the deed and no title insurance policy was issued
iii. P cannot claim he was prejudiced by lack of use for an extended period of time
f. Balance equitable and policy considerations
i. Injustice resulting from refusing to give effect to the grantor’s intent against injustice resulting by failing to give effect to reliance on the old rule and the policy against disturbing settled titles
9. Reservation
a. Provision in a deed creating some new servitude which did not exist before as an independent interest
b. O à A reserving a 20 ft wide easement of way; the easement did not exist as an independent interest prior to the conveyance to O
10. Exception
a. Provision in a deed that excludes from the grant some preexisting servitude on the land
b. A à B; except for the easement previously reserved by O
11. Regrant theory
a. An easement “reserved” by the grantor was not a reservation at all (which would be void), but a regrant of an easement by the grantee to the grantor
b. O à A and her heirs, reserving an easement in O
i. Treated as if 2 deeds
ii. Deed grants A a fee simple
iii. Then A is treated as granting an easement back to O
12. How to avoid this litigation
a. Convey property to Peterson with a reservation
b. Convey to Peterson, reserve easement in self, then conveying that easement to church
c. Convey the easement to the church first, t
extent of necessity of the easement or the profit to the claimant
vi. Whether reciprocal benefits result to the conveyor and the conveyee
vii. The manner in which the land was used prior to its conveyance
viii. The extent to which the manner of prior use was or might have been known to the parites
– must have been known to the parties at the time of the conveyance OR
– been within the possibility of their knowledge at the time (reasonably prudent investigation)
5. Implied easement by prior existing use
a. Severance of title held in common ownership
i. One person owns and splits the title somehow
ii. Bailey owned the entire property and split it up by selling the lots off
b. Existing, apparent, and continuous use when severance occurs
i. Has to be in existence at the time of the severance
ii. The sewer line was in when the lots were sold
c. Reasonable necessity for use at time of severance
i. Need sewage for sanitary conditions
6. How are implied easements by necessity different than implied easements prior existing use
a. The first element is the same for both (just 2 different ways of saying the same thing)
b. 2nd element – prior existing use is the use is going on all along by necessity it is possible that the road didn’t exist at the time of the severance
c. The 3rd element necessity is a strict standard and prior existing use is a reasonable standard
b. Othen v. Rosier (p. 786)
i. Othen and Rosier owned land contiguous to each other. Othen’s land was landlocked but he used a lane through Rosier’s property. The road washed out and Rosier built a levy to control the water and blocked the road. Othen sued claiming he had an easement by prescription and by necessity.
ii. ISSUE – when is an easement by necessity created?
iii. RULES
1. Where a vendor retains a tract of land that is surrounded partly by the tract conveyed and partly by the lands of a stranger, there is an implied reservation of a right of way by necessity over the land conveyed where the grantor has no other way out.
2. For an easement by implied reservation one must show
a. Unity of ownership of alleged dominant and servient estates
i. Hill owned the entire plot before selling off the pieces to O and R; O was the dominant in that he needed to use a piece of R’s land who is the servient to get to the main road.
