Transcript Property I Fall 2008

Property II
Professor Donald J. Kochan
Spring 2009
Class 38
11 February 2009
Today’s Material

Introduction to Servitudes
 Easements

Pages 667-715
Hovenkamp & Kurtz
Suggested Non-Required but Recommended
Supplemental Material:
The H&K hornbook (see your Syllabus) is
extremely helpful on these (and other) topics
See http://west.thomson.com/productdetail/128860/22048674/productdetail.aspx
(The Fifth Edition is just as good if you can find it used.)
Servitides
Three Principal Types:



Easements
Real Covenants
Equitable Servitudes
Servitudes and Dominant and
Servient Estates

Definitional Terms that you must understand
Very generally:

Dominant is the person or property benefited by the use,
disuse, or other burden on another’s property

Servient is the person or property that is burdened by
giving up a stick to another – they must either do
something or refrain from doing something for the
benefit of another or must allow another to do
something on their property
Historical Background of
Easements
Medieval Period
 Communal System v. Private Property
 Agricultural basis
 Profits
From common fields and shared pastures to
fenced fields and consolidated farms
 Affirmative and Negative Easements –
Understand the difference


Easements Generally

This provides some useful information as a
supplemental introduction:
http://legaldictionary.thefreedictionary.com/easement
Restatement (Third) of Property:
Servitudes
Ҥ 1.2 Easement And Profit Defined
(1) An easement creates a nonpossessory right to enter and use land
in the possession of another and obligates the possessor not to
interfere with the uses authorized by the easement.
(2) A profit à prendre is an easement that confers the right to enter
and remove timber, minerals, oil, gas, game, or other substances
from land in the possession of another. It is referred to as a “profit”
in this Restatement.
(3) The burden of an easement or profit is always appurtenant. The
benefit may be either appurtenant or in gross.
(4) As used in this Restatement, the term “ easement” includes an
irrevocable license to enter and use land in the possession of
another and excludes a negative easement. A negative easement is
included in the term “restrictive covenant”
From Westlaw and Black’s Law
Dictionary Definitions

“Easement (eez-m<<schwa>>nt). 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 (such as to
cross it for access to a public road). • The land benefiting from an
easement is called the dominant estate; the land burdened by an
easement is called the servient estate. Unlike a lease or license, an
easement may last forever, but it does not give the holder the right
to possess, take from, improve, or sell the land. The primary
recognized easements are (1) a right-of-way, (2) a right of entry for
any purpose relating to the dominant estate, (3) a right to the
support of land and buildings, (4) a right of light and air, (5) a right
to water, (6) a right to do some act that would otherwise amount to
a nuisance, and (7) a right to place or keep something on the
servient estate. See SERVITUDE (1). Cf. PROFIT A PRENDRE. -- Also
termed private right-of-way. [Cases: Easements 1. C.J.S.
Easements §§ 2-8, 13-14, 21-22, 24, 53-55, 57-58, 89.]”
From Westlaw and Black’s Law
Dictionary Definitions

“private easement. An easement whose
enjoyment is restricted to one specific person or
a few specific people. [Cases: Easements 52.
C.J.S. Easements §§ 164-167.]”

“public easement. An easement for the
benefit of an entire community, such as the right
to travel down a street or a sidewalk.”
From Westlaw and Black’s Law
Dictionary Definitions


“affirmative easement. An easement that forces the servient-estate owner to
permit certain actions by the easement holder, such as discharging water onto the
servient estate. -- Also termed positive easement. Cf. negative easement.
’Positive easements give rights of entry upon the land of another, not amounting to
profits, to enable something to be done on that land. Some are commonplace,
examples being rights of way across the land of another and rights to discharge
water on to the land of another. Others are more rare, such as the right to occupy a
pew in a church, the right to use a kitchen situated on the land of another for the
purpose of washing and drying clothes, and the right to use a toilet situated on the
land of another.’ Peter Butt, Land Law 305 (2d ed. 1988).”
“negative easement. An easement that prohibits the servient-estate owner from
doing something, such as building an obstruction. Cf. affirmative easement. [Cases:
Covenants 20; Easements 13. C.J.S. Easements § 59.]
’Negative easements ... confer no right of entry, but consist essentially of the right to
prevent something being done; examples are the right to the flow of air through
defined aperture, the right to receive light for a building, the right to the support of a
building, and (possibly) the right to require a neighbouring landowner to repair
fences.’ Peter Butt, Land Law 305 (2d ed. 1988).”
From Westlaw and Black’s Law
Dictionary Definitions
“reciprocal negative easement. An easement
created when a landowner sells part of the land
and restricts the buyer's use of that part, and, in
turn, that same restriction is placed on the part
kept by the landowner. • Such an easement usu.
arises when the original landowner creates a
common scheme of development for smaller
tracts that are carved out of the original tract.
[Cases: Covenants 20; Easements 13. C.J.S.
Easements § 59.]”
Appurtenant v. In Gross

Appurtenant = attached to and runs with the
land; transferee receives the benefit and the
burdened property owner remains burdened
despite the change in ownership
In Gross = attached to a person and may be
alienable but presumed not; a personal benefit;
does not necessarily run with the land and
usually does not; the “I trust you but not
necessarily your successor” situation


Realize that each is very fact specific
Appurtenant v. In Gross (cont.)

ALWAYS analyze scope – the dominant, however the transfer, can
never expand the scope of the originally agreed easement
regardless of whether it runs with the land or not; thus, the first
steps are:
Determine if it is appurtenant or in gross
 Define the Scope of Use
 Define the scope of the dominant’s rights to assign or otherwise
transfer
 Determine if it runs with the land
 Determine if a subsequent purchaser can take the benefit of the
easement
 Determine if the use is consistent with original intent and agreement
 Determine whether any new uses add a new or unintended burden on
the servient estate – because of user or type of use

From Westlaw and Black’s Law
Dictionary Definitions
“easement appurtenant. An easement created to
benefit another tract of land, the use of easement being
incident to the ownership of that other tract. -- Also
termed appurtenant easement; appendant easement;
pure easement; easement proper. Cf. easement in gross.
[Cases: Easements 3. C.J.S. Easements §§ 4, 10-11,
20.]”
“easement in gross. An easement benefiting a particular
person and not a particular piece of land. • The
beneficiary need not, and usu. does not, own any land
adjoining the servient estate. Cf. easement appurtenant.
[Cases: Easements 3. C.J.S. Easements §§ 4, 10-11,
20.]”
Creation of Easements

Express

Implied



Estoppel
Prescription
But ALWAYS focus on SCOPE regardless of the
method of creation
Right-of-Way Examples for Easements
DG>
>
>
>
>
>
____________________>___________________________________________________
\ >
\
>>>>>>>\>>>>>>>>>>>>>>>>>>>>>\>>>>>>>>>>>>
DG or DA
\
S
\
B
\
\
\
\
\
\
\
\
<<<<<<<\<<<<<<<<<<<<<<<<<<<<<\<<<<<<<<<<<<
R
\
\
_________________________________________________________________________
Consider all Permutations on Diagram
DG = Dominant in gross
DA = Dominant appurtenant
S = Servient
B = Beach
R = Road
From Westlaw and Black’s Law
Dictionary Definitions
“access easement. An easement allowing
one or more persons to travel across
another's land to get to a nearby location,
such as a road. • The access easement is
a common type of easement by necessity.
-- Also termed easement of access;
easement of way; easement of passage.”
Willard v.
First Church of Christ, Scientist
Church/Parking Lot case
Reservation in a property to for “a stranger to the title”
case
“our primary objective in construing a conveyance is to
try to give intent to the grantor. . . .”
 What burdens follow with a sale?
 Ambiguity issues
 Reliance issues
 Easements created in favor of
a Third Party Issues
 Extinguishment Issues
 Note 1 and Note 4 following the case are important



Licenses Distinguished
What is a license?
Understand Nature of the Interest
 “A license is oral or written permission given by the
occupant of land allowing the licensee to do some act
that otherwise would be a trespass.” D&K
 Plumber, dinner or barbecue guest, theater, housesitter
examples, etc.
 Primary Issue of Distinction Relates to Revocability – A
license is generally revocable while an easement is not
 Involves a CONTRACT right to go upon or use another’s
land, rather than a PROPERTY right
 Property Remedies v. Contract Remedies for the Licensee
and Licensor

Holbrook v. Taylor


Coal haul road/right-of-way case
Estoppel issues – when, if ever, does a license
turn into an easement? What is the distinction?


Reliance Issues
Prescription distinguished
Shepard v. Purvine


Arm’s Length Issues
Necessity for a formalization of an
easement agreement to avoid the
revocability of a mere license
Henry v. Dalton

Intent issues – what arrangement was intended?
Statute of Frauds as an important method for
determining whether or not property should be bound


Revocable or Irrevocable Rights


Nature of the Grant of Use
See Notes re Restatement regarding estoppel following
cases
Van Sandt v. Royster

Underground Lateral Sewage Drain Case


One issue is whether it is appurtenant
Implied grants and implied reservations – when
and how do they rise to enforceable easements?

Notice how the court focuses on intent of the
parties
Implied and “Quasi” Easements

From the text:
“Easements are implied in two basic situations. In the first situation the
easement is implied on the basis of an apparent and continuous (or
permanent) use of a portion of the tract existing when the tract is divided.
The existing use is often described as a ‘quasi-easement.’ The easement is
implied to protect the probable expectations of the grantor and grantee that
the existing use will continue past the transfer. . . . In the second situation
the easement is implied when the court finds the claimed easement is
necessary to the enjoyment of the claimant’s land and that the necessity
arose when the claimed dominant parcel was severed from the claimed
servient parcel. This kind of implied easement is known as an easement by
necessity . . .”

Should we protect the continuation of existing uses?

Intentions and expectations of the parties key
From Westlaw and Black’s Law
Dictionary Definitions



“easement by estoppel. A court-ordered easement created from a
voluntary servitude after a person, mistakenly believing the
servitude to be permanent, acted in reasonable reliance on the
mistaken belief. [Cases: Estoppel 82. C.J.S. Estoppel § 90.]”
“equitable easement. 1. An implied easement created by equity
when adjacent lands have been created out of a larger tract. • Such
an easement is usu. created to allow implied privileges to continue.
[Cases: Easements 16. C.J.S. Easements §§ 3, 61-65, 68-71, 74, 7981, 88.] 2. See restrictive covenant (1) under COVENANT (4).”
“implied easement. An easement created by law after an owner
of two parcels of land uses one parcel to benefit the other to such a
degree that, upon the sale of the benefited parcel, the purchaser
could reasonably expect the use to be included in the sale. -- Also
termed easement by implication; way of necessity. [Cases:
Easements 15-19. C.J.S. Easements §§ 3, 13, 61-88, 90-109, 149.]”
Othen v. Rosier



Roadway Easement Case
By Necessity and By Prescription Issues
Implication of Easement at Sale/Notice of Encumbrance

Consent/Reliance Issues



Fencing
Intent Issues
Doctrine of Strict Necessity – mere convenience is insufficient
Easements by Necessity

Means the creation of an easement mandated by law and not by private
negotiation – When is it appropriate because it places a burden on another?

Strict Necessity v. Convenience Distinction




Define whether necessity exists
See Notes regarding issue of duration
Landlocked property issues (“I can’t get in, I can’t get out!”), including
knowledge upon acquisition and whether price was discounted (buyer
beware and unjust enrichment issues)
See the Note regarding Leo Sheep Co. – Why does the existence of the
power of eminent domain make a difference? (in considering that, also go
back to the NGA 7(h) example from Class 30 (mining v. natural gas
example))
From Westlaw and Black’s Law
Dictionary Definitions
“easement by necessity. An easement
created by operation of law because the
easement is indispensable to the
reasonable use of nearby property, such
as an easement connecting a parcel of
land to a road. -- Also termed easement of
necessity; necessary way. [Cases:
Easements 18. C.J.S. Easements §§ 63,
69, 75-77, 91-97, 99-101, 103-109.]”
Easements by Necessity (cont.)
Supplemental Case Study:
Tolksdorf v. Griffith, 464 Mich. 1, 626 N.W.2d 163
(Mich. 2001) (Private Roads Act in Michigan
found unconstitutional) (recognize relationship
with takings law and the “public use” clause)
For Non-Required Supplemental Reading, see:
http://coa.courts.mi.gov/DOCUMENTS/OPINIONS/FINAL/SCT/20010515_S1
15032(52)_tolksdorf.PDF
Michigan Supreme Court
Easements by Prescription
Similarities and overlaps with adverse possession –
“in many ways is similar to adverse possession but in some ways
distinctly different” D&K


Lost Grant Legal Fiction – What is a “Legal Fiction”?


Acquiescence, Permission, and Adversity Issues
Factual Evidence of Interruption and the Legal Effect


Permissive v. Adverse Use
Public Prescriptive Easements: The Beach Access Examples

Highly Fact-Specific
From Westlaw and Black’s Law
Dictionary Definitions
“prescriptive easement. An
easement created from an open,
adverse, and continuous use over a
statutory period. -- Also termed
easement by prescription; adverse
easement. See ADVERSE
POSSESSION. [Cases: Easements 511. C.J.S. Easements §§ 13-51.]”
Matthews v.
Bay Head Improvement Ass’n

Public Trust Doctrine – sovereignty over tidal waters
(and the ebb and flow) vested in the State in trust for
the people


Public’s right of use over beachfront property
Extension of the Public Trust Doctrine to public use of
dry-sand areas

Public Access Across Private Land to Public Waters
Assignability of Easements
“The benefits and burdens of appurtenant
easements pass automatically to assignees
of the land to which they are appurtenant,
if the parties so intend and the burdened
party has notice of the easement. Where
the benefit is in gross, however, the benfit
may not be assignable.”
D&K
Miller v. Lutheran
Conference & Camp Ass’n



Scope – Boating & Fishing Rights; but Bathing?
Explicit issues; Unilateral Expansion of Scope and Burden
on Servient Tenement
expressio unius est exclusio alterius – the expression of
one is the exclusion of another; key interpretive phrase
for deeds and statutes that you MUST know

Yet, how does prescription play a role?

“One Stock” Rule
Public Utility Easements


Often exist as encumbrances
on private property
Power Lines, Pipelines, Sewers, etc.


Many individuals are unaware
My childhood tree anecdote
Concluding Remarks


Continue to examine easements in the
next class
Later, be able to distinguish them from
other types of servitudes