Easement

• Author: Jeffrey Lehman, Shirelle Phelps

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A right of use over the property of another. Traditionally the permitted kinds of uses were limited, the most important being rights of way and rights concerning flowing waters. The easement was normally for the benefit of adjoining lands, no matter who the owner was (an easement appurtenant), rather than for the benefit of a specific individual (easement in gross).

Easements frequently arise among owners of adjoining parcels of land. Common examples of easements include the right of a property owner who has no street front to use a particular segment of a neighbor's land to gain access to the road, as well as the right of a MUNICIPAL

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CORPORATION to run a sewer line across a strip of an owner's land, which is frequently called a right of way.

Easements can be conveyed from one individual to another by will, deed, or contract, which must comply with the STATUTE OF FRAUDS and can be inherited pursuant to the laws of DESCENT AND DISTRIBUTION.

An easement is a nonpossessory interest in another's land that entitles the holder only to the right to use such land in the specified manner. It is distinguishable from a profit a prendre that is the right to enter another's land and remove the soil itself or a product thereof, such as crops or timber.

An easement appurtenant attaches to the land permanently and benefits its owner. In order for it to exist, there must be two pieces of land owned by different individuals. One piece, the dominant estate or tenement, is the land that is benefited by the easement. The other piece, known as the servient estate or tenement, is the land that has the burden of the easement. An easement appurtenant is a COVENANT running with the land since it is incapable of a separate and independent existence from the land to which it is annexed. A common example would be where one landowner?A?is the owner of land that is separated from a road by land owned by B. If B sells A a right of way across his or her land, it is a right that is appurtenant to A's land and can only be used in connection thereof.

An easement in gross is not appurtenant to any estate in land. It arises when a servient piece of land exists without a dominant piece being affected. This type of easement is ordinarily personal to the holder and does not run with the land. For example, if A has a number of trees on his or her property and B contracts with A to enter A's land to remove timber, B has both an easement in gross and a profit...