Chapter 10 - § 10.1 • EASEMENTS

• Jurisdiction: Colorado

§ 10.1 • EASEMENTS

§ 10.1.1—Definitions and Types of Easements

An easement is a right authorizing one to do or maintain something on the land of another which, although a benefit to the land of the former, may be a burden on the land of the latter.¹ More generally, an easement "is a right that burdens a parcel of land (the servient estate) and benefits another parcel (the dominant estate)."² It is a privilege existing distinct from the ownership of the land itself, although it is an interest in land.³

Because the interest is itself non-possessory, the holder of an easement does not have the degree of control over the burdened property that is enjoyed by the owner of the servient estate.⁴ A person cannot create an easement in his or her favor on his or her own property.⁵

Nevertheless, one who subdivides property with a common plan may create easements that arise upon the conveyance of individual parcels.⁶

An easement can take one of several forms. One is the actual or express easement that appears in a deed or contract for the sale of land. This form is easy to recognize and usually not difficult to apply if fully described. A second is the implied easement, which creates problems for both litigants and the courts. It is one not expressed by the parties in writing, but which arises out of certain facts implied from the transaction. Generally, implied easements have not been looked upon with favor by the courts. Under some circumstances and facts, however, they are recognized.⁷

A party who claims an easement must prove the existence of the easement by a preponderance of the evidence.⁸

§ 10.1.2—Easements Distinguished from Other Rights

Licenses⁹

There is a clear distinction in the legal interest conveyed by a license and that conveyed by an easement. An easement, while distinct from ownership of land itself, is an interest in land. A license, however, is merely a personal privilege to do some particular act or series of acts on land without possessing any estate or interest in the land. Also, a license is, ordinarily, revocable at the will of the licensor and is not assignable.¹⁰ Nevertheless, in Colorado, particularly in the context of irrigation ditches, the distinction between a license on the faith of which the licensee has expended money in carrying out the object of the license¹¹ and an easement by acquiescence¹² has become virtually nonexistent.

Natural Rights

There are several kinds of natural rights that are incident to the ownership of land. These rights, although sometimes referred to as "natural easements," exist independent of easements acquired by adverse possession, and the rules relative to prescriptive rights are inapplicable when determining the existence of a "natural easement."¹³

The owner of higher land possesses a natural easement on land downstream for drainage of surface water flowing in its natural course.¹⁴ The upstream property owner may alter natural drainage conditions as long as the water is not sent down in a manner or quantity to do more harm to the downstream land than formerly;¹⁵ the discharge of water is a continuing trespass if water is sent down in a manner or quantity so as to do more harm than formerly.¹⁶

The owner of land which in its natural state drains toward a ditch may have an easement to discharge storm drainage into that ditch.¹⁷

A person may not divert surface water contrary to a valid order of the state engineer or a division engineer issued pursuant to C.R.S. § 37-92-502.¹⁸

Profits¹⁹

In Alexander Dawson, Inc. v. Fling,²⁰ the Colorado Supreme Court held that a deed granting an easement right to boat and swim on a lake did not grant the right to fish. The court said:

Profits a prendre involve a greater interest than easements; "rights which are said to be prendre are distinguished again into rights coupled with profits, which are called profits a prendre, or rights without any profits, which are called easements." . . . [Rights to boat and swim] were merely easement rights; and a construction of the deed which would grant them the right to fish . . . would invest them with a greater right, a profit a prendre, a right to which they were not entitled. A right to profits a prendre must be expressly granted; the burden of an easement may not be increased by investing the holder of such easement with a profit a prendre either by implication or otherwise.²¹

Nevertheless, in Lobato v. Taylor²² the Colorado Supreme Court held that "a profit is a type of easement."

Fee

The particularity of the description of the affected lands is a significant factor in determining whether a document creates a fee interest or an easement. Lack of clarity in the land description may indicate the conveyance of an easement rather than a full possessory interest. A document purporting to convey a fee interest must at least provide a means of identifying the property conveyed.²³

In the absence of additional descriptive language, "right of way," when used to describe an ownership interest in real property, is traditionally construed to be an easement.²⁴ Conversely, a deed granting "a strip of land," rather than a right of way over the strip of land, has been held to convey a fee simple rather than an easement or a determinable fee.²⁵ A deed granting "the following described lands and premises" conveys a fee, not an easement;²⁶ but a deed conveying a "strip of ground" and further describing the grant as being a right of way has been held to grant an easement.²⁷ A decree which apparently condemned "for a right of way for said Ditch a strip of land" was held to condemn an easement only.²⁸

§ 10.1.3—Easements Appurtenant and in Gross

An easement can be appurtenant or in gross.²⁹ Whether an easement is appurtenant or in gross depends upon the intention of the parties as ascertained by reading the words of the grant or reservation in light of the attendant circumstances.³⁰ If the language of a conveyance is unclear as to the nature of the easement, the default presumption is that an easement appurtenant has been created.³¹

An easement appurtenant is an incorporeal right attached to and belonging with some other parcel of land.³² An easement is said to be appurtenant to property when the benefit or burden of the easement runs with an interest in property.³³ The property burdened by the easement is the servient estate and the property benefited by the easement is the dominant estate.³⁴ Owners of the property are entitled to the benefit, or subject to the burden, of the easement due to their relation to the property. When their property interest terminates, so does their connection to the easement.³⁵ An easement appurtenant cannot exist apart from the dominant tenement³⁶ and cannot be converted into a personal easement.³⁷ When an easement is created by grant or reservation in a deed, the determination of whether the easement is appurtenant to a certain parcel of property or personal to a certain individual depends upon the intention of the parties as ascertained by reading the words of the deed in light of the attendant circumstances.³⁸ For example, the use of the term "ingress and egress" without limitation suggests that the easement is designed to serve a specific piece of property.³⁹ An easement appurtenant need not necessarily be upon land adjacent to the dominant tenement.⁴⁰

An easement in gross is not appurtenant to any estate in land and does not belong to any person by virtue of his or her ownership of an estate in land, but instead is a mere personal interest in, or right to use, land of another.⁴¹ Unlike an easement appurtenant, an easement in gross does not run with the land and creates no dominant or servient estate.⁴² An easement in gross is assignable.⁴³ (But query as to whether an easement in gross can exist without a servient estate.)

§ 10.1.4—Particular Kinds of Easements

Statutory Easements

Statutory rights of way are provided for tunnel companies,⁴⁴ pipeline companies,⁴⁵ electric power companies,⁴⁶ and tramway companies.⁴⁷ Such companies must be foreign or domestic corporations, and are deemed common carriers.⁴⁸ A company desiring to avail itself of the benefits of the statute must file with the clerk and recorder a map or survey of the proposed route or line.⁴⁹

Statutory rights of way are also provided for electric light power, gas, or pipeline companies across state⁵⁰ and private⁵¹ lands and for statutory rights of way for telecommunications providers across state lands.⁵²

A ditch, reservoir, or pipeline company formed under the provisions of law has the right-of-way over the line named in the articles of incorporation, and also has the right to run water from the stream, channel, or water source, whether natural or artificial, named in the articles⁵³ through its ditch or pipeline, and store the same in any reservoir of the company when not needed for immediate use. The line proposed may not interfere with any other ditch, pipeline, or reservoir having prior rights, except the right to cross by pipe or flume, nor may the water of any stream, channel, or other water course, whether natural or artificial, be diverted from its original channel or source to the detriment of any person having priority of right thereto.⁵⁴

There is a statutory right of way over any claim, road, ditch, or other structure for bringing water into a mine.⁵⁵ Other statutory rights of way are provided for the purpose of hauling quartz from a mining claim;⁵⁶ for the purpose of constructing, maintaining, and operating flumes, ditches, pipelines, trams, tramways, or pack trails over patented and unpatented mining claims;⁵⁷ and for the purpose of following a mineral-bearing vein or lode into the property of another.⁵⁸

Under section 4 of the Multiple Surface Use Act of 1955⁵⁹ the United States has reserved to itself, its permittees and licensees, the right to use so much of the surface of unpatented mining claims as may be necessary for access to adjacent land.

For the statutory creation of...