1. Chapter 4 Nonpossessory Interests in Real Estate

2. Types of Easements Details Discussed on Next Slides
Easements in gross
Affirmative easement
Easements by express grant
Easements by necessity
Conservation easements
Easements appurtenant
Negative easement
Easements by express reservation
Easements by implication
Scenic easements 2

3. Easements Appurtenant
Benefit Tied to Particular Land. The right of an owner of a parcel of land to benefit from the use of another’s land.
Dominant/Servient Estates.
Questions
What happens when land is sold?
Can dominant estate sell easement separate from the land?
Can dominant estate split land and give two new owners access?
Can servient landowner cancel the easement?
Who has to maintain the easement?
Neighbor – Servient
Estate
Johnson
Dominant Estate
Easement Appurtenant

4. Easements in Gross
Not Tied to Another Particular Piece of Land (don’t need two properties). The easement is tied to a person or corporation instead.
Commercial/Personal. If it’s an easement for a person, it’s considered a personal easement and cannot be sold or transferred and will terminate when the holder dies. If they can tie it to an estate, then it will survive… Commercial easement can be transferred to a new entity for the same purpose (sewer is not same as electric, but cable might be same as telephone).
Examples.
Shortcut Easements
Billboards
Utility Easements

5. Easement Terminology Affirmative. Right of access.
Negative. Stops landowner from doing something.
Right to light (solar access as we discussed)
Scenic
Conservation

6. Conservation Easements (negative easement)
Restricted Land Use. Landowners voluntarily agree to limit the use and development of their property in order to permanently preserve the open space, habitat, water quality, and natural resources. The restrictions are put in the deed.
Tax Benefits. Will pay lower property taxes generally based on reduced utility of the land.
Paid for Easement. The state of MN provided $750,000 to buy easements for Avon Hill.

7. Easement Creation Express Grant and Express Reservation
Express Grant. An easement created by an owner expressly granting in a deed or other instrument a specific right to another to use the property.
Express Reservation. An easement created when an owner of property conveys title to another be deed while specifically reserving an easement in his or her favor.

8. Dianne v. Wingate #4 84 So.3rd 427 FL App 2012
ROAD
Adrian and Charline Wingate
Freddie and Peggy Wingate (now Dianne)
Easement

9. Easement Creation Easements by Implication
Unity of Ownership. Unity of ownership at one time
Prior Use. Quasi easement in existence during unified ownership.
Apparent. Use was apparent.
Just. To not allow easement would impose unreasonable expense
Example. Man splits his 10 acre lot into two five acre parcels and sells each parcel to different buyers. No mention of an easement.
Dirt Road – 30 Minutes to get to highway

10. Easement Creation Easements by Necessity
Necessary. To not allow easement would render the dominant estate unusable.

11. HP Limited v. Kenai River Airpark 270 P3rd 719 (Alaska 2010), p
HP Limited v. Kenai River Airpark 270 P3rd 719 (Alaska 2010), p. 76 (x) Easement by Prescription
Developed 160 Acres of Riverfront.
Lot 30. Twice as big to accommodate an easement for the benefit of all Holiday Park property owners. Express easement in deeds limited to boat launching.
Started Selling in year prescription easement time required. Only the former partner meets the 10 year requirement. He avoided contact.
Partnership Collapsed. Partners split remaining lots with Hausam getting lot 30.
Boat Launch Only. Hausam wanted to sell Lot 30 to Holiday Park owners and reminded them in 2001 easement for boat launching only.
New Owners in
Easement by Prescription for Recreational Use.
Lot 29
Lot 30
Twice as big
Kenai River
30’ path
Lot 31

12. Easement Creation Easements by Prescription
Use Required. Use for the required prescriptive period
Must be Adverse. Use must be adverse (not permissive use)
Open and Notorious. Use must be open and notorious
Continuous and Exclusive. Use must be continuous and exclusive (can use prior parties use to add years to your use).

13. Consider 4.2 Hughes v. Fisher
Bald Mountain, Idaho
Consider 4.2 Hughes v. Fisher
Fisher owned property near Bald Mountain and he used and gave others permission to use a path on his property to reach Bald Mountain Fisher lived there and from Fisher told his tenants to give permission.
Some asked for permission and many did not.
In 2000, Fisher wanted to develop the property with the path on it.
Hughs sued to keep the path open.
Express or implied permission

14. Stopping a Prescriptive Easement
Put up a fence/gate with a lock
Put up warning signs
Notify law enforcement officials
Obtain a court injunction
Give permission? (Be sure to document!)

15. Scope of Easement Courts look to original use and purpose
Reasonable expansion permitted
No expansion to uses not contemplated at the time of easement’s creation

16. Brown v. ConocoPhillips Pipeline Co (X) p. 80 Scope of an Easement
Pipeline Built in Used continuously.
Easement. “… to lay, maintain, operate, inspect and remove…”
Tree to be Removed. 30 year old pine oak. 60’-70’ tall.
Impact to Homeowner.
Loss of shade
Granddaughter plays under it
Only tree in backyard
She will be 90 before a new tree grows as large
Impact to pipeline
Could rupture (36” underground)
Rubs of protective coating when tree roots rub against pipeline
Harder to maintain/get access to pipeline

17. Rights of Parties Servient can’t block easement
Dominant is responsible for repairs and upkeep
Dominant can upgrade the easement (paving)
Dominant can put up fence along the easement

18. Termination of Easements
Non-Use. Non-use for prescriptive period (abandonment); there must be intent to abandon and intent can be gleaned from disrepair
No Need. In implication easements, need no longer exists
Release. The holder may release the servient estate.
Merger. If the dominant and servient lands are merged.

19. Shooting Point had a 15 easement over Wescoat’s land.
Consider 4.4 Shooting Point LLC v. Wescoat 576 SE2d 497 (Va 2003) Scope of an Easement – change of use versus just more use
Shooting Point had a 15 easement over Wescoat’s land.
For 25 years the land was agricultural and the easement barely visible.
Shooting Point wanted to develop the land which would increase the easement use to over 180 times a day. From one lot to 18 lots.
Is this an “additional and unreasonable burden on the easement?”
From one lot to 18
Start here thursday

20. Brushhoging
Consider 4.5 Creech v. Noyes 87 SW3d 880 (MO App 2002) Abandonment verus non-use
Creech and two other neighbors had an easement over Noyes land.
The easement was often washed out due to flooding on “Bob’s Creek.”
One of the neighbors created a second access point in the 1980s and the easement over the Noyes land become unused.
Noyes asked the others to contribute to a culvert to prevent washouts and they refused.
Noyes put up a gate in 1997.
In 1998, Creech tried to “brushhog the property and Noyes kicked him off for trespassing.
Was the easement abandoned?

21. Consider 4.7, p. 88 Seven Lakes Development v. Maxson
McKinley owned and developed 480 acres
He gave buyers a “privilege” to hunt and fish on his land.
McKinely sold some of the land where Maxson hunted and fished and new owners stated that Maxson could not hunt and fish.

22. Profits or Profits a Prendre Like and an easement plus right to remove
Right of Removal. These are easements with a right of removal
Not = Mineral Ownership. More than one person can hold a profit.
Examples. Have access to the land for the removal of water, minerals, rocks, soil, and timber

23. Licenses
License. Right to use another’s land that is not an interest in real property
Can be Revoked. License is a privilege that can be revoked at any time
Cannot Transfer Upon Death. License cannot be passed to another; it is a personal right
Example. New England Patriots refer to season tickets as licenses that cannot be sold or transferred without permission

24. End-of-Chapter Q: 1 John Minoque Charlotte Minoque
End-of-Chapter Q 10, p. 92: Driveway
Freeds and Sterner own adjacent lots.
Sterner has used a driveway across Freeds land since 1957 when the two lots were owned by one person.
IN 1988 Freed erected a barrier.
Does Sterner have an easement? What kind?
End-of-Chapter Q: 1
Dad owned two properties and gave one to son and the other to his daughter.
No mention of driveway that ran through son’s property but was used by daughter to access her garage. Father had used the same driveway to access the garage.
Son blocked the use.
John Minoque
Charlotte Minoque

25. End-of-Chapter Q2 , p. 87 Easement by Implication?
Granite Partners owned everything shown before conveying pieces. Conveyed B to Larry Mann. Kept A.
Gravel driveways existed when conveyed. Part on Mann’s property. No reference of driveway in the deed.
Save-a-Lot is in the shopping center and gets truck deliveries a day. Trucks would struggle to turn around in 50 feet of lot space in back and deliver in the front door is difficult.
Gravel driveways – used to access garbage at rear of shopping center. Need both so trucks do not need to turn around.
New Owner Mann
Undeveloped-
Health Club
Granite Apt
Buildings Chateau des Fluers
Apt buildings 25

26. End-of-Chapter Q3 Extent of “easement” rights
Parents visit son’s grave each year.
Cemetery was using son’s grave for another burial in the plot adjoining their son’s plot.
Parents asked for the tent to be removed. The cemetery refused and called the police.
Issue: Do parents have a right of access to the grave? Cemetery says the property right is only to the grave itself with no access.

27. Frierson v. Watson End-of-Chapter Q 10
Two story building sharing a common wall
Staircase easement
Hallway to access second floor – not placed in deed
Property owner knew of the easement but the easement was never recorded
Party Wall
Own to the boundary – easement for the rest of the wall.