Property 2 Outline
Spring 2011
Professor Evans
I. Easements
A. General Elements of Easements
1. Non-possessory
a. Only the right to use
2. Right
a. Interest in the land
3. Possessed by another
a. Burdens the land owned by another
b. Can’t be own land
4. Exceptions still apply
a. Part performance or estoppel
B. Classifications of Easements
1. Easements Appurtenant: benefits easement holder because the dominant owner owns the benefited land. It is not personal and doesn’t run with the land.
a. Affirmative (majority): the right to enter or perform an act on the servient land, granted by a servient owner
b. Negative: easements forbidding one landowner from doing something on his land; prevent someone on servient land from doing something
2. Easements in gross: a personal right – the person with the easement does not need to own the land (ex. Hunting, fishing, utility company having the right to provide power)
a. Affirmative
b. Negative
C. Types of Easements
1. Express Easements
a. A is given the right to enter upon B’s land
i. Arises between a landowner and easement holder through an express agreement
ii. Statute of Frauds applies
b. Policy
i. Property owners to act as they wish, to come to agreements
ii. Efficient use of land, use and enjoyment of land
iii. Owner of an easement can rely on the government to protect their rights
2. Implied Easements
a. Prior Existing Use
i. Severance of Title – When large parcel owned by one person and that person severs the parcel to different people
ii. Some existing, apparent, and continuous use (person that owned large parcel, had a use that once benefited them).
iii. Reasonable necessity (distinguish between this and necessity by looking at the prior existing use – if there is prior existing use, it can be reasonable necessity but if there is no prior existing use, then there must be strict necessity).
A.) Reasonable – convenient or beneficial to the use and enjoyment of the land at the time of the severance (not strictly necessary)
iv. Case Example: Van Sandt v. Royster: V claimed he never granted an easement for a sewer drain, which connected his house to two others and flooded his basement with excrement. Court said that there was an easement implied by prior existing use.
A.) Rule: the implication of an easement will depend on the circumstances under which the conveyance of land was made, including the extent to which the manner of prior use was or might have been known by the parties. i.e. actual, constructive or inquiry notice (reasonable investigation)
b. Necessity
i. Severance of Title
ii. Strict Necessity – must exist at the time of the severance
A.) If the owner has any legal means, no matter how expensive, how inconvenient, how impractical, there is no strict necessity
B.) Exception: minority view uses reasonable certainty
iii. Only endures as long as the necessity exists
A.) Policy: courts will use strict necessity because servient landowners carry a huge burden when another party has an easement on their land.
iv. Case: Othen v. Rosier – Othen used a roadway on Rosier’s property to access the public highway, but Rosier later build a levee which made the road impassable for Othen.
c. Prescriptive Easements
***Like adverse possession, but with use
i. Open and notorious – sufficiently visible and apparent that a diligent owner who was present on the land at the time would be able to or reasonably be able to discover it
A.) No actual knowledge of use is necessary
ii. Adverse and Under Claim of Right – without permission of the servient owner
A.) Objective test: subjective intent is irrelevant; claimant is using the land as a reasonable owner would use without the owner’s permission.
B.) Subjective test: must have good faith; claimant, in good faith, believes that he is using without permission
iii. Continuous and Uninterrupted for the Statutory Period
A.
s pass automatically to assignees of the land to which they are appurtenant, if the parties so intent and the burdened party has notice of the easement.
b. Easements in gross
i. Common law: easement in gross was not assignable
ii. Case law: easement in gross is not assignable unless it is for commercial purpose (as opposed to recreational purposes)
iii. Modern: Easement in gross is assignable regardless of the distinction between commercial and recreational purposes.
iv. Case: Miller v. Lutheran Conference & Camp Association: Rufus Miller’s executors licensed the Association to use the lake without referring to Frank Miller, who owned ¾ of the interests in such rights. Frank and Rufus acquired fishing and boating rights by an express easement, and bathing rights by a prescriptive easement.
A.) Rule: One Stock Rule: when two or more people own an easement in gross, the easement must be used as “one stock” – any actions involving the easement must be made in common consent of all owners. (Doctrine of Mount Joy)
4. Scope of Easements
a. An easement cannot be extended from one parcel to another after granting the easement to the easement to the original parcel.
i. Case: Brown v. Voss – Voss blocked off a private road easement for parcel B after Brown started building a house that would sit on parcels B and C.
ii. Rule: if an easement benefits its owner in the use of a particular parcel of land, any extension of the easement to other parcels is a misuse of the easement.
A.) This rule has switched from a bright line rule to discretionary by the court allowing the easement and granting damages of $1.
