Property II: Outline
I. Control of Land through “Private” and “Public” Means
a. Private Land Use Arrangements: A Comparative Study of Servitudes
i. Easements – an easement is an interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific, limited purpose
1. Historical Background
a. Easement Appurtenant – gives easement owner the right to make or restrict some particular use of land they do not own to whomever owns a parcel of land that the easement benefits
i. Requires
1. Dominant tenement/estate – the benefited parcel
2. Servient tenement/estate – parcel with the easement, the burdened one
b. Easement In Gross – only servient, no dominant parcel, may be alienable or unalienable
c. Affirmative Easement – granted by the servient owner to another the right to enter land or perform an act on it
d. Negative Easement – forbid one landowner from doing something on his land that might harm a neighbor
e. 5 major types of servitudes
i. A is given the right to enter B’s land (Easement)
ii. A is given the right to enter B’s land and remove something attached to the land (Profit)
iii. A is given the right to enforce a restriction on the use of B’s land (Negative Easement or Covenant)
iv. A is given the right to require B to perform some act on B’s land (Covenant)
v. A is given the right to require B to pay money for the upkeep of specified facilities (Covenant)
f. Two minor types of servitudes
i. Profit A Prendre
ii. License
g. Primary Recognized Easements
i. Right of way
ii. Right of entry for any purpose relating to the dominant estate
iii. Right to the support of land and buildings
iv. Right of light and air
v. Right to water
vi. Right to do some act that would otherwise constitute a nuisance
vii. Right to place or keep something on the servient estate
h. Easements within the SOF because they are an interest in land. Must have a written instrument signed by the part
le and thus an easement where the licensee makes improvements known to the owner of the land and thus relies on the license
c. Easement Implied from Prior Existing Use
i. Apparent and continuous reasonably necessary use of a portion of a tract of land existing when the tract is divided
ii. Three elements
1. Severance of title held in common ownership
2. Existing, apparent, and continuous use when severance occurs
3. Reasonable necessity for use at the time of the severance
iii. Van Sandt v. Royster
1. At the time a tract is divided into two or more parcels, a use of one parcel of it must exist from which it can be inferred that an easement permitting its continuation was intended – “quasi easement”
Held that an implied sewer easement has been reserved to house 2 because the sewer is apparent
