Heller Property Handout, Week 11

TYPES OF EASEMENTS (1) (2) (3) (4) (5) (6) Easement by express grant Easement by reservation Easement by estoppel Easement by prior existing use Easement by necessity Easement by prescription

Easement by reservation---A grantor conveys land but reserves from that grant some new servitude which did not exist before as an independent interest. At common law, a grantor could not reserve an easement for a third party. The modern trend, however, allows reservation in third parties depending on: (1) intent and (2) notice. (Willard). Distinguish versus easement by exception, which deals with preexisting servitudes (not terribly significant to understand this---it is a messy area of law and largely inconsequential because of equitable servitudes). Easement by estoppel---A licensor grants a license1 on which the licensee reasonably relies to make substantial improvements to property and equity requires making the license irrevocable. ! Holbrook v. Taylor: With Hs knowledge and no objection, T used Hs road in constructing his home. H later blocked road with steel cable and wants to charge Taylor $500 for easement to get to his $25k house. Court grants easement by estoppel. ! Duration of easement by estoppel? Old rule: long enough to recuperate initial investment. Modern rule: indefinite duration unless otherwise intended by the parties. ! However, not all states recognize easements by estoppel. ! Other option: Dalton / NY rule. o Licenses are freely revocable even if relied upon to make improvements. Encourages ex ante bargaining and gives security/certainty to titles (easement by estoppel is created by law, not in title, so its not discoverable). Easement by prior existing use---When a property has been divided by a common owner and, prior to division, one portion has been used in an easement-like fashion for the benefit of another part of the property. Van Sandt v. Royster: Sewer pipes run from one house out to the sewer on the main avenue. Original owner sells two lots closer to the main avenue. Requirements: (1) use at the time of conveyance; (2) reasonable necessity (in most states, strict necessity in minority); (3) notice (prior use must be apparent and continuous); and (4) use is limited to reasonable expectations at time when property was sold. o In Van Sandt, the sewer is apparent because you are on notice when it comes to utilites. For reasonable necessity factors on p.783 (conveyor vs. conveyee, extent to which prior use was known, etc.). Remember that the policy animating implied reservations is protecting the probable expectations of the grantor and the grantee. Easement by necessity---Only when the claimed easement is necessary to the enjoyment of the claimants land and the necessity arose when the claimed dominant parcel was severed from the claimed servient parcel. Othen v. Rosier: H sold large parcel in pieces over time. Parcel acquired by O was landlocked, so he habitually used roadway crossing Rs land to reach public road. R built levee and made roadway impassable. o Key question: which sale cut you off? Here, O had an easement by necessity, just not over Rs land. Requirements: (1) strict necessity at severance (minority grants when access is merely difficult, inadequate, or costly); (2) common ownership; (3) lasts only as long as necessary; and (3) implied only over land locking parcel. Easement by prescription---A sufficient period of adverse use can ripen into an easement by prescription. (A.P. v. fiction of the lost grant) Requirements: (1) adverse & under claim of right (cannot be with permission of the owner and usually need notice to owner of the users claim of right to use); (2) open and notorious (discoverable by reasonable inspection); (3) continuous and uninterrupted (tacking allowed); and (4) exclusive (individual, not common---remember, can be shared with the owner). o Continuous: majority of states require that the owner actually interrupt. Some states allow a mere letter or sign to interrupt adverse use. (Thus, Columbia closes the gates once a year) Note that this only applies to affirmative easements. However, these can be either appurtenant or in gross.

A license is permission given by the occupant of land allowing the licensee to do something that would otherwise be a trespass (think of someone coming to your house for dinner, going to a concert, etc.). Can be implied or explicit. Licenses are freely revocable, except: (1) profit prendre (tied to an interest) or (2) by estoppel. -1-

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Public prescriptive easements: Some jurisdictions permit the public at large to acquire prescriptive easements in private lands, so long as all the elements are satisfied. Also get this same result through the public trust doctrine (serves as a way around takings because the judiciary cant take unless they change law---a rule that, of course, does not make any conceptual sense). Factors to consider: (1) Amount and duration of public intrusion (2) What rights does owner retain (3) Diminution in value of owner's property Beach Access Raleigh Avenue Beach Assn. v. Atlantis Beach Club ! Follows line of cases extending beach access to public: o Neptune City v. Borough of Avon-by-the-SeaPublic rights in tidal waters extended to publicly-owned dry sand. Court invalidated a municipal ordinance requiring non-residents to pay a fee to access the town beach. o Matthews v. Bay Head Improvement AssociationPublics right to swim and bathe below high tide mark implies some right to privately-owned (by a quasi-public organization) dry sand. Without access through the dry sand, the right to the wet sand is meaningless. o Raleigh Avenue Beach Assn. v. Atlantis Beach ClubRight to dry sand is not limited to passage. Court implies access to privately owned dry sand ancillary to ocean for reasonable enjoyment (rest and relaxation). ! This is a good area to review in terms of socially contingent nature of property law (consider how the beach was discussed in Pierson v. Post, where a hunt occurred upon a certain wild and uninhabited, unpossessed and waste land, called the beach . . . .) ADDITIONAL RULES Scope of easements General rule: determined by the intent of the parties and limited by the burden on the servient estate. Express or implied---Use is limited to uses reasonably foreseeable to the parties, meeting their evolving needs (reasonableness standard from Preseault v. US cabined by idea that burden on servient tenement should not increase) Easement by necessity---Limited to the extent of necessity. Easement by prescription---Cannot be extended. Use by Dominant Tenement If the dominant parcel is subdivided, each parcel has the right to use an easement appurtenant. However, as above, the servient estate cannot be burdened to a greater extent than contemplated at the time of creation of the easement. An easement, once created, simply cannot be used to the benefit of land that is not the dominant estate. o Brown v. Voss: Owner of dominant tenement cannot extend use of an easement to non-dominant land. The court uses a liability rule (nominal damages in this case), rather than the traditional property rule (injunction). o Heller strongly prefers the injunction remedy, as it is a clear bright line rule and encourages parties to engage in private ordering. o Note: a minority of states allow reasonable additional uses where there is no increased burden. Use by Servient Tenement Servient owner can generally use or alter the servient parcel in ways that do not unreasonably interfere with the easement. Some states (but not all) allow the servient owner to alter the location and size of the easement to decrease the harm to the servient owner in ways that do not harm the dominant owner. Assignability and divisibility of easements Easement appurtenant: freely transferable. Easements in gross: non-commercial easements in gross are not transferable unless the parties intended. Commercial easements, however, are transferable (in part because parties intent is clear as in Miller v. Lutheran Conference). Divisibility of easements in gross? ! One stock rule (Miller): requires that all owners of easement in gross agree to its use (anticommons problem). ! Modern Rule: easements in gross may be divided unless doing so is contrary to the intent of the parties or if division unreasonably increases the burden on the servient estate (possible commons problem) Termination (1) Expiration: easement may expire by the express terms of the grant. (2) Merger: If easement holder acquires title to the servient estate, easement is extinguished. -2-

Heller Property Handout, Week 11

(3) Acts of Easement Holder: a. Written release or oral release & abandonment. b. Abandonment: acts showing conclusive and unequivocal manifestation either of present intent to relinquish the easement or of a purpose inconsistent with future existence (Presault---ripping up train tracks). Nonuse or misuse does not end an easement. c. Alteration of dominant estate such that easement may no longer be used. d. Condemnation: government taking through eminent domain. (4) Cessation of purpose: Necessity ends for an easement by necessity. (5) Acts of the servient estate holder: a. Destruction of the servient tenement without fault. b. Termination by prescription. NEGATIVE EASEMENTS Negative Easements Traditional closed set, established in the common law courts, see p. 842 o As easements, these rights were enforceable against successor owners o Traditional policy objections, p. 843 Modern American negative easements o (1) Conservation easement: Generally, sold to a public body or nonprofit land trust for the development value of the land, which generates a tax deduction ! Perpetual in duration; transferable; may be in gross ! Policy concerns: May promote sprawl; not adaptable to changed circumstances o Other modern easements: (2) view; (3) solar; (4) facade preservation;

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