§7.9 - Easements Distinguished from Licenses

• Jurisdiction: Washington

§7.9 EASEMENTS DISTINGUISHED FROM LICENSES

Licenses differ from easements in a number of significant aspects, discussed below.

(1) Characteristics of licenses

A license is an authorization to carry out an act or series of acts on another's property without a possessory estate in that property. Bakke v. Columbia Valley Lumber Co., 49 Wn.2d 165, 298 P.2d 849 (1956); Conaway v. Time Oil Co., 34 Wn.2d 884, 210 P.2d 1012 (1949). It is a privilege granted by some authority to do an act that, without the license, would be unlawful. State v. Lake City Bowlers' Club, 26 Wn.2d 292, 173 P.2d 783 (1946). Unlike an easement, which constitutes an interest in the land itself, a license, because of its nonpossessory nature, does not exclude the landowner from full possession of the estate. Conaway, 34 Wn.2d 884. A license, unlike an easement, is not inheritable or assignable. Bakke, 49 Wn.2d 165. Finally, a license is revocable at the will of an estate owner; an easement is usually a permanent interest in an estate. See §7.7(1)(a).

(2) Creation of licenses

The essential element in the creation of a license is the permission or consent of the licensor to the act or series of acts. Conaway, 34 Wn.2d 884. Unlike an easement, which must generally be created by deed or prescription, a license may be created by an oral or parol agreement. Id. Consideration need not be given for the license, and the absence or presence of this factor may be used to help distinguish between licenses and easements. Washburn v. Esser, 9 Wn.App. 169, 511 P.2d 1387 (1973).

A license may also arise by implication through the words and acts of two parties. Conaway, 34 Wn.2d 884. In most cases in which a license is implied, the owner of the land, with full knowledge of the facts, permits another to repeatedly carry out acts on his or her land. Reed Logging Co. v. Marenakos, 31 Wn.2d 321, 196 P.2d 737 (1948). The failure of the owner to object is interpreted as the permission required to create a license. Id.

A license may also be created by the failure to meet one or more of the requirements for creation of an easement. Powell discusses the applicability of this rule at some length. POWELL ON REAL PROPERTY §4:34:26 (Michael Allan Wolf ed., 2000 and Supp. 2007). No Washington case has been found upholding or rejecting this theory, although it was presented and argued in Bakke v. Columbia Valley Lumber Co., 49 Wn.2d 165, 298 P.2d 849 (1956). The argument was rejected in Bakke...