§7.2 - Characteristics of Easements

• Jurisdiction: Washington

§7.2 CHARACTERISTICS OF EASEMENTS

This section discusses what the term "easement" encompasses,and the various types of easements.

(1) Interest in land

An easement is a privilege to use the land of another. State ex rel. Shorett v. Blue Ridge Club, 22 Wn.2d 487, 156 P.2d 667 (1945). It is an interest in land, but not an estate in land. Bakke v. Columbia Valley Lumber Co., 49 Wn.2d 165, 298 P.2d 849 (1956). One cannot have an easement in one's own property, because an easement is merely a use interest, not an ownership interest, in land. Coast Storage Co. v. Schwartz, 55 Wn.2d 848, 351 P.2d 520 (1960). The right to use one's own land arises out of the ownership of the land, not an easement. An easement is an incorporeal right or interest in another's property. Perrin v. Derbyshire Scenic Acres Water Corp., 63 Wn.2d 716, 388 P.2d 949 (1964).

One particular area of problems lies with railroad rights-of-way acquired through private grant rather than by condemnation. These interests might be either limited fees or easements. For a discussion of the important consequences that can turn on the difference, see Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Lines Ass'n, 156 Wn.2d 253, 126 P.3d 16 (2006).

(2) Affirmative and negative easements

An affirmative easement gives the easement owner the right or privilege to use another's land in a particular manner that, without the easement, would not be possiblefor example, a right-of-way across another's land. A negative easement, on the other hand, gives the easement owner the right to restrict the other landowner's exercise of the general and natural rights of the property on which the easement lies, 28A C.J.S. Easements §13; 25 AM. JUR. 2D Easements §7.7for example, an easement of light and air that restricts a landowner from building above a certain height. By statute, Washington allows parties to create, by written agreement, solar easements, which are express easements appurtenant designed to assure that solar energy systems have adequate access to direct sunlight. See Ch. 64.04 RCW. Open space requirements contained in restrictive covenants have been held to be negative easements protected by this statute. City of Olympia v. Palzer, 107 Wn.2d 225, 728 P.2d 135 (1986).

(3) Easements appurtenant and in gross

An easement appurtenant is attached to one estate (the dominant estate) and allows the owner of that estate to make use of or affect the use of an estate that belongs to...