{"id":234,"date":"2014-09-17T00:42:03","date_gmt":"2014-09-17T00:42:03","guid":{"rendered":"https:\/\/courses.candelalearning.com\/buslegalenv\/?post_type=chapter&#038;p=234"},"modified":"2015-04-15T21:07:00","modified_gmt":"2015-04-15T21:07:00","slug":"28-3-easements-rights-in-the-lands-of-others","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/chapter\/28-3-easements-rights-in-the-lands-of-others\/","title":{"raw":"Easements: Rights in the Lands of Others","rendered":"Easements: Rights in the Lands of Others"},"content":{"raw":"<div class=\"bcc-box bcc-highlight\">\r\n<h3>Learning Objectives<\/h3>\r\nBy the end of this section, you will be able to:\r\n<ul id=\"mayer_1.0-ch52_s02_l01\" class=\"im_orderedlist\">\r\n\t<li>Explain the difference between an easement and a license.<\/li>\r\n\t<li>Describe the ways in which easements can be created.<\/li>\r\n<\/ul>\r\n<\/div>\r\n<div id=\"mayer_1.0-ch33_s03_s01\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Definition<\/h2>\r\nAn <span class=\"im_margin_term\"><span class=\"im_glossterm\">easement<\/span><\/span> is an interest in land created by agreement that permits one person to make use of another\u2019s estate. This interest can extend to a profit, the taking of something from the other\u2019s land. Though the common law once distinguished between an easement and profit, today the distinction has faded, and profits are treated as a type of easement. An easement must be distinguished from a mere <span class=\"im_margin_term\"><span class=\"im_glossterm\">license<\/span><\/span>, which is permission, revocable at the will of the owner, to make use of the owner\u2019s land. An easement is an estate; a license is personal to the grantee and is not assignable.\r\n\r\nThe two main types of easements are affirmative and negative. An affirmative easement gives a landowner the right to use the land of another (e.g., crossing it or using water from it), while a <span class=\"im_margin_term\"><span class=\"im_glossterm\">negative easement<\/span><\/span>, by contrast, prohibits the landowner from using his land in ways that would affect the holder of the easement. For example, the builder of a solar home would want to obtain negative easements from neighbors barring them from building structures on their land that would block sunlight from falling on the solar home. With the growth of solar energy, some states have begun to provide stronger protection by enacting laws that regulate one\u2019s ability to interfere with the enjoyment of sunlight. These laws range from a relatively weak statute in Colorado, which sets forth rules for obtaining easements, to the much stronger statute in California, which says in effect that the owner of a solar device has a vested right to continue to receive the sunlight.\r\n\r\nAnother important distinction is made between easements appurtenant and easements in gross. An <span class=\"im_margin_term\"><span class=\"im_glossterm\">easement appurtenant<\/span><\/span> benefits the owner of adjacent land. The easement is thus appurtenant to the holder\u2019s land. The benefited land is called the <span class=\"im_margin_term\"><span class=\"im_glossterm\">dominant tenement<\/span><\/span>, and the burdened land\u2014that is, the land subject to the easement\u2014is called the <span class=\"im_margin_term\"><span class=\"im_glossterm\">servient tenement<\/span><\/span> (see Figure 28.3 \"Easement Appurtenant\"). An easement in gross is granted independent of the easement holder\u2019s ownership or possession of land. It is simply an independent right\u2014for example, the right granted to a local delivery service to drive its trucks across a private roadway to gain access to homes at the other end.\r\n<div id=\"mayer_1.0-ch33_s03_s01_f01\" class=\"im_figure im_large im_editable im_block\">\r\n\r\n<span class=\"im_title-prefix\">Figure 28.3<\/span> Easement Appurtenant\r\n\r\n<a href=\"https:\/\/textimgs.s3.amazonaws.com\/buslegalenv\/section_31\/ab81c228c3aa5e54446874705487d71e.jpg\" target=\"_blank\"><img src=\"https:\/\/textimgs.s3.amazonaws.com\/buslegalenv\/images\/sm_ab81c228c3aa5e54446874705487d71e.jpg#fixme\" alt=\"\" \/><\/a>\r\n\r\n<\/div>\r\nUnless it is explicitly limited to the grantee, an easement appurtenant \u201cruns with the land.\u201d That is, when the dominant tenement is sold or otherwise conveyed, the new owner automatically owns the easement. A commercial easement in gross may be transferred\u2014for instance, easements to construct pipelines, telegraph and telephone lines, and railroad rights of way. However, most noncommercial easements in gross are not transferable, being deemed personal to the original owner of the easement. Rochelle sells her friend Mrs. Nanette\u2014who does not own land adjacent to Rochelle\u2014an easement across her country farm to operate skimobiles during the winter. The easement is personal to Mrs. Nanette; she could not sell the easement to anyone else.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch33_s03_s02\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Creation<\/h2>\r\nEasements may be created by express agreement, either in deeds or in wills. The owner of the dominant tenement may buy the easement from the owner of the servient tenement or may reserve the easement for himself when selling part of his land. But courts will sometimes allow implied easements under certain circumstances. For instance, if the deed refers to an easement that bounds the premises\u2014without describing it in any detail\u2014a court could conclude that an easement was intended to pass with the sale of the property.\r\n\r\nAn easement can also be implied from prior use. Suppose a seller of land has two lots, with a driveway connecting both lots to the street. The only way to gain access to the street from the back lot is to use the driveway, and the seller has always done so. If the seller now sells the back lot, the buyer can establish an easement in the driveway through the front lot if the prior use was (1) apparent at the time of sale, (2) continuous, and (3) reasonably necessary for the enjoyment of the back lot. The rule of implied easements through prior use operates only when the ownership of the dominant and servient tenements was originally in the same person.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch33_s03_s03\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Use of the Easement<\/h2>\r\nThe servient owner may use the easement\u2014remember, it is on or under or above his land\u2014as long as his use does not interfere with the rights of the easement owner. Suppose you have an easement to walk along a path in the woods owned by your neighbor and to swim in a private lake that adjoins the woods. At the time you purchased the easement, your neighbor did not use the lake. Now he proposes to swim in it himself, and you protest. You would not have a sound case, because his swimming in the lake would not interfere with your right to do so. But if he proposed to clear the woods and build a mill on it, obliterating the path you took to the lake and polluting the lake with chemical discharges, then you could obtain an injunction to bar him from interfering with your easement.\r\n\r\nThe owner of the dominant tenement is not restricted to using his land as he was at the time he became the owner of the easement. The courts will permit him to develop the land in some \u201cnormal\u201d manner. For example, an easement on a private roadway for the benefit of a large estate up in the hills would not be lost if the large estate were ultimately subdivided and many new owners wished to use the roadway; the easement applies to the entire portion of the original dominant tenement, not merely to the part that abuts the easement itself. However, the owner of an easement appurtenant to one tract of land cannot use the easement on another tract of land, even if the two tracts are adjacent.\r\n<div id=\"mayer_1.0-ch33_s03_s03_n01\" class=\"im_key_takeaways im_editable im_block textbox\">\r\n<h3 class=\"im_title\">Key Takeaway<\/h3>\r\nAn easement appurtenant runs with the land and benefits the dominant tenement, burdening the servient tenement. An easement, generally, has a specific location or description within or over the servient tenement. Easements can be created by deed, by will, or by implication.\r\n\r\n<\/div>\r\n<div class=\"bcc-box bcc-info\">\r\n<h3>Exercises<\/h3>\r\n<section id=\"self-check-questions\">\r\n<ol>\r\n\t<li>Beth Delaney owns property next to Kerry Plemmons. The deed to Delaney\u2019s property notes that she has access to a well on the Plemmons property \u201cto obtain water for household use.\u201d The well has been dry for many generations and has not been used by anyone on the Plemmons property or the Delaney property for as many generations. The well predated Plemmons\u2019s ownership of the property; as the servient tenement, the Plemmons property was burdened by this easement dating back to 1898. Plemmons hires a company to dig a very deep well near one of his outbuildings to provide water for his horses. The location is one hundred yards from the old well. Does the Delaney property have any easement to use water from the new well?<\/li>\r\n<\/ol>\r\n<\/section><\/div>\r\n<div id=\"mayer_1.0-ch52_s02_s06_n02\" class=\"im_exercises im_editable im_block\"><\/div>\r\n<\/div>","rendered":"<div class=\"bcc-box bcc-highlight\">\n<h3>Learning Objectives<\/h3>\n<p>By the end of this section, you will be able to:<\/p>\n<ul id=\"mayer_1.0-ch52_s02_l01\" class=\"im_orderedlist\">\n<li>Explain the difference between an easement and a license.<\/li>\n<li>Describe the ways in which easements can be created.<\/li>\n<\/ul>\n<\/div>\n<div id=\"mayer_1.0-ch33_s03_s01\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Definition<\/h2>\n<p>An <span class=\"im_margin_term\"><span class=\"im_glossterm\">easement<\/span><\/span> is an interest in land created by agreement that permits one person to make use of another\u2019s estate. This interest can extend to a profit, the taking of something from the other\u2019s land. Though the common law once distinguished between an easement and profit, today the distinction has faded, and profits are treated as a type of easement. An easement must be distinguished from a mere <span class=\"im_margin_term\"><span class=\"im_glossterm\">license<\/span><\/span>, which is permission, revocable at the will of the owner, to make use of the owner\u2019s land. An easement is an estate; a license is personal to the grantee and is not assignable.<\/p>\n<p>The two main types of easements are affirmative and negative. An affirmative easement gives a landowner the right to use the land of another (e.g., crossing it or using water from it), while a <span class=\"im_margin_term\"><span class=\"im_glossterm\">negative easement<\/span><\/span>, by contrast, prohibits the landowner from using his land in ways that would affect the holder of the easement. For example, the builder of a solar home would want to obtain negative easements from neighbors barring them from building structures on their land that would block sunlight from falling on the solar home. With the growth of solar energy, some states have begun to provide stronger protection by enacting laws that regulate one\u2019s ability to interfere with the enjoyment of sunlight. These laws range from a relatively weak statute in Colorado, which sets forth rules for obtaining easements, to the much stronger statute in California, which says in effect that the owner of a solar device has a vested right to continue to receive the sunlight.<\/p>\n<p>Another important distinction is made between easements appurtenant and easements in gross. An <span class=\"im_margin_term\"><span class=\"im_glossterm\">easement appurtenant<\/span><\/span> benefits the owner of adjacent land. The easement is thus appurtenant to the holder\u2019s land. The benefited land is called the <span class=\"im_margin_term\"><span class=\"im_glossterm\">dominant tenement<\/span><\/span>, and the burdened land\u2014that is, the land subject to the easement\u2014is called the <span class=\"im_margin_term\"><span class=\"im_glossterm\">servient tenement<\/span><\/span> (see Figure 28.3 &#8220;Easement Appurtenant&#8221;). An easement in gross is granted independent of the easement holder\u2019s ownership or possession of land. It is simply an independent right\u2014for example, the right granted to a local delivery service to drive its trucks across a private roadway to gain access to homes at the other end.<\/p>\n<div id=\"mayer_1.0-ch33_s03_s01_f01\" class=\"im_figure im_large im_editable im_block\">\n<p><span class=\"im_title-prefix\">Figure 28.3<\/span> Easement Appurtenant<\/p>\n<p><a href=\"https:\/\/textimgs.s3.amazonaws.com\/buslegalenv\/section_31\/ab81c228c3aa5e54446874705487d71e.jpg\" target=\"_blank\"><img decoding=\"async\" src=\"https:\/\/textimgs.s3.amazonaws.com\/buslegalenv\/images\/sm_ab81c228c3aa5e54446874705487d71e.jpg#fixme\" alt=\"\" \/><\/a><\/p>\n<\/div>\n<p>Unless it is explicitly limited to the grantee, an easement appurtenant \u201cruns with the land.\u201d That is, when the dominant tenement is sold or otherwise conveyed, the new owner automatically owns the easement. A commercial easement in gross may be transferred\u2014for instance, easements to construct pipelines, telegraph and telephone lines, and railroad rights of way. However, most noncommercial easements in gross are not transferable, being deemed personal to the original owner of the easement. Rochelle sells her friend Mrs. Nanette\u2014who does not own land adjacent to Rochelle\u2014an easement across her country farm to operate skimobiles during the winter. The easement is personal to Mrs. Nanette; she could not sell the easement to anyone else.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch33_s03_s02\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Creation<\/h2>\n<p>Easements may be created by express agreement, either in deeds or in wills. The owner of the dominant tenement may buy the easement from the owner of the servient tenement or may reserve the easement for himself when selling part of his land. But courts will sometimes allow implied easements under certain circumstances. For instance, if the deed refers to an easement that bounds the premises\u2014without describing it in any detail\u2014a court could conclude that an easement was intended to pass with the sale of the property.<\/p>\n<p>An easement can also be implied from prior use. Suppose a seller of land has two lots, with a driveway connecting both lots to the street. The only way to gain access to the street from the back lot is to use the driveway, and the seller has always done so. If the seller now sells the back lot, the buyer can establish an easement in the driveway through the front lot if the prior use was (1) apparent at the time of sale, (2) continuous, and (3) reasonably necessary for the enjoyment of the back lot. The rule of implied easements through prior use operates only when the ownership of the dominant and servient tenements was originally in the same person.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch33_s03_s03\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Use of the Easement<\/h2>\n<p>The servient owner may use the easement\u2014remember, it is on or under or above his land\u2014as long as his use does not interfere with the rights of the easement owner. Suppose you have an easement to walk along a path in the woods owned by your neighbor and to swim in a private lake that adjoins the woods. At the time you purchased the easement, your neighbor did not use the lake. Now he proposes to swim in it himself, and you protest. You would not have a sound case, because his swimming in the lake would not interfere with your right to do so. But if he proposed to clear the woods and build a mill on it, obliterating the path you took to the lake and polluting the lake with chemical discharges, then you could obtain an injunction to bar him from interfering with your easement.<\/p>\n<p>The owner of the dominant tenement is not restricted to using his land as he was at the time he became the owner of the easement. The courts will permit him to develop the land in some \u201cnormal\u201d manner. For example, an easement on a private roadway for the benefit of a large estate up in the hills would not be lost if the large estate were ultimately subdivided and many new owners wished to use the roadway; the easement applies to the entire portion of the original dominant tenement, not merely to the part that abuts the easement itself. However, the owner of an easement appurtenant to one tract of land cannot use the easement on another tract of land, even if the two tracts are adjacent.<\/p>\n<div id=\"mayer_1.0-ch33_s03_s03_n01\" class=\"im_key_takeaways im_editable im_block textbox\">\n<h3 class=\"im_title\">Key Takeaway<\/h3>\n<p>An easement appurtenant runs with the land and benefits the dominant tenement, burdening the servient tenement. An easement, generally, has a specific location or description within or over the servient tenement. Easements can be created by deed, by will, or by implication.<\/p>\n<\/div>\n<div class=\"bcc-box bcc-info\">\n<h3>Exercises<\/h3>\n<section id=\"self-check-questions\">\n<ol>\n<li>Beth Delaney owns property next to Kerry Plemmons. The deed to Delaney\u2019s property notes that she has access to a well on the Plemmons property \u201cto obtain water for household use.\u201d The well has been dry for many generations and has not been used by anyone on the Plemmons property or the Delaney property for as many generations. The well predated Plemmons\u2019s ownership of the property; as the servient tenement, the Plemmons property was burdened by this easement dating back to 1898. Plemmons hires a company to dig a very deep well near one of his outbuildings to provide water for his horses. The location is one hundred yards from the old well. Does the Delaney property have any easement to use water from the new well?<\/li>\n<\/ol>\n<\/section>\n<\/div>\n<div id=\"mayer_1.0-ch52_s02_s06_n02\" class=\"im_exercises im_editable im_block\"><\/div>\n<\/div>\n\n\t\t\t <section class=\"citations-section\" role=\"contentinfo\">\n\t\t\t <h3>Candela Citations<\/h3>\n\t\t\t\t\t <div>\n\t\t\t\t\t\t <div id=\"citation-list-234\">\n\t\t\t\t\t\t\t <div class=\"licensing\"><div class=\"license-attribution-dropdown-subheading\">CC licensed content, Shared previously<\/div><ul class=\"citation-list\"><li>Business and the Legal Environment. <strong>Authored by<\/strong>: Anonymous. <strong>Provided by<\/strong>: Anonymous. <strong>Located at<\/strong>: <a target=\"_blank\" href=\"http:\/\/2012books.lardbucket.org\/books\/business-and-the-legal-environment\/\">http:\/\/2012books.lardbucket.org\/books\/business-and-the-legal-environment\/<\/a>. <strong>License<\/strong>: <em><a target=\"_blank\" rel=\"license\" href=\"https:\/\/creativecommons.org\/licenses\/by-nc-sa\/4.0\/\">CC BY-NC-SA: Attribution-NonCommercial-ShareAlike<\/a><\/em><\/li><\/ul><\/div>\n\t\t\t\t\t\t <\/div>\n\t\t\t\t\t <\/div>\n\t\t\t <\/section>","protected":false},"author":5,"menu_order":190,"template":"","meta":{"_candela_citation":"[{\"type\":\"cc\",\"description\":\"Business and the Legal Environment\",\"author\":\"Anonymous\",\"organization\":\"Anonymous\",\"url\":\"http:\/\/2012books.lardbucket.org\/books\/business-and-the-legal-environment\/\",\"project\":\"\",\"license\":\"cc-by-nc-sa\",\"license_terms\":\"\"}]","CANDELA_OUTCOMES_GUID":"","pb_show_title":"on","pb_short_title":"","pb_subtitle":"","pb_authors":[],"pb_section_license":""},"chapter-type":[],"contributor":[],"license":[],"class_list":["post-234","chapter","type-chapter","status-publish","hentry"],"part":753,"_links":{"self":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/234","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters"}],"about":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/types\/chapter"}],"author":[{"embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/users\/5"}],"version-history":[{"count":4,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/234\/revisions"}],"predecessor-version":[{"id":877,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/234\/revisions\/877"}],"part":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/parts\/753"}],"metadata":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/234\/metadata\/"}],"wp:attachment":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/media?parent=234"}],"wp:term":[{"taxonomy":"chapter-type","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapter-type?post=234"},{"taxonomy":"contributor","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/contributor?post=234"},{"taxonomy":"license","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/license?post=234"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}