An easement is the right to use someone else's land for a stated purpose. It is not ownership and it is not possession. The classic example is a right of way across a neighbor's property to reach a road. The land burdened by the easement is the servient estate. Where the benefit attaches to a neighboring parcel, that parcel is the dominant estate, and the easement travels with it when it is sold.
Rule
- Appurtenant or in gross. An appurtenant easement benefits a parcel of land and passes with it. An easement in gross benefits a person or company, such as a utility line.
- Express. Created by grant or reservation in a signed writing, so the statute of frauds applies.
- Implied by prior use. Arises on severance of commonly owned land where a use was apparent, continuous, and reasonably necessary to enjoy the parcel.
- By necessity. Arises on severance where a parcel is left with no access at all, and it lasts only while the necessity does.
- By prescription. Earned by open, continuous, adverse use for the statutory period, on the model of adverse possession but without exclusivity.
- By estoppel. A license becomes irrevocable where the holder has invested substantially in reasonable reliance on it.
- Termination. By release, merger of the two estates, abandonment shown by conduct, the end of a necessity, or prescription by the servient owner.
Leading cases
- Willard v. First Church of Christ, Scientist: a grantor may reserve an easement in favor of a third party, rejecting the older common law bar on doing so.
- Holbrook v. Taylor: a license became irrevocable where the user had spent significant money improving a road in reliance on the owner's permission.
- Van Sandt v. Royster: an easement by implication arose from a prior use that was apparent and reasonably necessary, even though the pipe involved was underground.
- Othen v. Rosier: an easement by necessity requires that the necessity existed at the time the common ownership was severed, not merely that access is now inconvenient.
Where students go wrong
The first mistake is confusing an easement with a license. A license is revocable permission and creates no interest in land. An easement is a property interest that binds successors.
The second is skipping scope. Even a valid easement can be misused, and expanding it to serve land it was never meant to serve is a common way holders lose.
The third is treating necessity and prior use as the same doctrine. Necessity requires that the parcel be landlocked. Prior use requires only reasonable necessity plus an existing apparent use at severance.
FAQ
What is the difference between an easement and a covenant?
An easement is a right to use land. A real covenant or equitable servitude is a promise about how land will be used, and the requirements for binding successors differ.
Does an easement survive a sale of the property?
An appurtenant easement does, and it passes automatically with the dominant parcel. Whether the buyer of the servient parcel is bound usually turns on notice and the recording act.
Can an easement be lost by non-use?
Non-use alone is not enough. Abandonment requires conduct showing a clear intention never to use the easement again.
Related terms
Working through this in your own casebook takes longer than reading it here. Syllume starts from your syllabus and turns each assigned case into a brief you can study from.