Easement in United States

Easement Definition

A right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not inconsistent with a general property in the owner. 2 Washb. Real Prop. 25. A privilege, without profit, which the owner of one adjacent tenement hath of another, existing in respect of their several tenements, by which that owner against whose tenement the privilege exists is obliged to suffer or not to do something on or in regard to his own land for the advantage of him in whose land the privilege exists. Termes de la Ley; Bell, Diet. (Ed. 1838). Easements, Servitude; 1 Serg. & R. (Pa.) 298; 3 Barn. & C. 339; 5 Barn. & C. 221; 3 Bing. 118; 2 McCord (S. C.) 451; 3 McCord (S. C.) 131, 194; 14 Mass, 49; 3 Pick. (Mass.) 408; 47 Md. 801. In the civil law, the land against which the privilege exists is called the servient tenement; its proprietor, the servient owner; he in whose favor it exists, the dominant owner; his land, the dominant tenement. And, as these rights are usually not personal, and do not change with the persons who may own the respective estates, it is very common to personify the estates as themselves owning or enjoying the easement. 4 Sandf. Ch. (N. Y.) 72; 3 Paige, Ch. (N. Y.) 254; 16 Pick. (Mass.) 522. Easements have these essential qualities. There must be two tenements owned by several proprietors, the dominant, to which the privilege is attached; the servient, upon which it is imposed. White & T. Lead. Cas. 108; 17 Mass. 443. Easements, strictly considered, exist only in favor of, and are imposed only on, corporeal property. 2 Washb. Real Prop. 25. They confer no right to any profits arising from the servient tenement. 4 Sandf. Ch. (N. Y.) 72; 4 Pick. (Mass.) 145; 5 Adol. & E. 758; 30 Eng. Law & Eq. 189; 3 Nev. & P. 257. They are incorporeal. By the common law, they may be temporary; by the civil law, the cause must be perpetual. They impose no duty on the servient owner, except not to change his tenement to the prejudice or destruction of the privilege. Gale, Easem. (3d Ed.) 1-18; Washb. Easem. Index. Easements are either (1) positive or (2) negative, the former authorizing the commission of acts on the servient estate, and the latter merely forbidding the servient owner from doing some act to the detriment of the dominant owner, as to build to the obstruction of his light. They are also (3) appurtenant, or (4) in gross, the former running with the land, and the latter attached to a person.
(5) Quasi easements. There are rights mentioned in the books as quasi easements. (1) Where there has been an easement proper, with a dominant and servient tenement, and the ownership of such tenements has been unified. (2) Where the owner of land has constructed a way or drain over one portion of it for the benefit of another portion, and there has never been a separate ownership of a dominant and servient tenement. This class is again subdivided into those which are called ‘continuous,’ as a drain or sewer, which are used continuously without the intervention of man, and those which are called ‘noncontinuous,’ as a right of way, which can only be used by the intervention of man, repeated at intervals when user is desired. Goddard, Easem. 84; 68 N. Y. 66. Easements are as various as the exigencies of domestic convenience, or the purposes to which buildings and land may be applied. The following attach to land as incidents or appurtenances, viz.: The right of pasture on other land; of fishing in other waters; of taking game on other land; of way over other land; of taking wood, minerals, or other produce of the soil from other land; of receiving air, light, or heat from or over other land; of receiving or discharging water over, or having support to buildings from, other land (3 EL, Bl. & El. 655) ; of going on other land to clear a mill stream, or repair its banks, or draw water from a spring there, or to do some other act not involving ownership; of carrying on an offensive trade (2 Bing. N. C. 134; 5 Mete. [Mass.] 8) ; of burying in a church, or a particular vault (Washb. Easem.; Civ. Code N. Y. pp. 149, 150; 8 H. L. Cas. 362; 3 Barn. & A. 735; 11 Q. B. 666) . An easement is distinguished from a license in that it carries an interest, and from a profit a prendre (q. v.) in that it is a privilege without profit.

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Legal Issue for Attorneys

A right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not inconsistent with a general property in the owner. 2 Washb. Real Prop. 25. A privilege, without profit, which the owner of one adjacent tenement hath of another, existing in respect of their several tenements, by which that owner against whose tenement the privilege exists is obliged to suffer or not to do something on or in regard to his own land for the advantage of him in whose land the privilege exists. Termes de la Ley; Bell, Diet. (Ed. 1838). Easements, Servitude; 1 Serg. & R. (Pa.) 298; 3 Barn. & C. 339; 5 Barn. & C. 221; 3 Bing. 118; 2 McCord (S. C.) 451; 3 McCord (S. C.) 131, 194; 14 Mass, 49; 3 Pick. (Mass.) 408; 47 Md. 801. In the civil law, the land against which the privilege exists is called the servient tenement; its proprietor, the servient owner; he in whose favor it exists, the dominant owner; his land, the dominant tenement. And, as these rights are usually not personal, and do not change with the persons who may own the respective estates, it is very common to personify the estates as themselves owning or enjoying the easement. 4 Sandf. Ch. (N. Y.) 72; 3 Paige, Ch. (N. Y.) 254; 16 Pick. (Mass.) 522. Easements have these essential qualities. There must be two tenements owned by several proprietors, the dominant, to which the privilege is attached; the servient, upon which it is imposed. White & T. Lead. Cas. 108; 17 Mass. 443. Easements, strictly considered, exist only in favor of, and are imposed only on, corporeal property. 2 Washb. Real Prop. 25. They confer no right to any profits arising from the servient tenement. 4 Sandf. Ch. (N. Y.) 72; 4 Pick. (Mass.) 145; 5 Adol. & E. 758; 30 Eng. Law & Eq. 189; 3 Nev. & P. 257. They are incorporeal. By the common law, they may be temporary; by the civil law, the cause must be perpetual. They impose no duty on the servient owner, except not to change his tenement to the prejudice or destruction of the privilege. Gale, Easem. (3d Ed.) 1-18; Washb. Easem. Index. Easements are either (1) positive or (2) negative, the former authorizing the commission of acts on the servient estate, and the latter merely forbidding the servient owner from doing some act to the detriment of the dominant owner, as to build to the obstruction of his light. They are also (3) appurtenant, or (4) in gross, the former running with the land, and the latter attached to a person.
(5) Quasi easements. There are rights mentioned in the books as quasi easements. (1) Where there has been an easement proper, with a dominant and servient tenement, and the ownership of such tenements has been unified. (2) Where the owner of land has constructed a way or drain over one portion of it for the benefit of another portion, and there has never been a separate ownership of a dominant and servient tenement. This class is again subdivided into those which are called ‘continuous,’ as a drain or sewer, which are used continuously without the intervention of man, and those which are called ‘noncontinuous,’ as a right of way, which can only be used by the intervention of man, repeated at intervals when user is desired. Goddard, Easem. 84; 68 N. Y. 66. Easements are as various as the exigencies of domestic convenience, or the purposes to which buildings and land may be applied. The following attach to land as incidents or appurtenances, viz.: The right of pasture on other land; of fishing in other waters; of taking game on other land; of way over other land; of taking wood, minerals, or other produce of the soil from other land; of receiving air, light, or heat from or over other land; of receiving or discharging water over, or having support to buildings from, other land (3 EL, Bl. & El. 655) ; of going on other land to clear a mill stream, or repair its banks, or draw water from a spring there, or to do some other act not involving ownership; of carrying on an offensive trade (2 Bing. N. C. 134; 5 Mete. [Mass.] 8) ; of burying in a church, or a particular vault (Washb. Easem.; Civ. Code N. Y. pp. 149, 150; 8 H. L. Cas. 362; 3 Barn. & A. 735; 11 Q. B. 666) . An easement is distinguished from a license in that it carries an interest, and from a profit a prendre (q. v.) in that it is a privilege without profit.

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This definition of Easement Is based on the The Cyclopedic Law Dictionary . This definition needs to be proofread..

Practical Information

Note: Some of this information was last updated in 1982

A right or privilege by one owner of land to use the land of another for a specific purpose. For example, A owns adjoining lots. He constructs a driveway on the common boundary line between the lots and sells one lot to B. B has an implied easement to use the driveway. An easement may be created by express grant, reservation, or agreement, or as a right acquired by lapse of time. 1. Easement Appurtenant. An easement that requires a dominant estate to which the benefit of the easement attaches. An easement appurtenant passes with the dominant estate to all subsequent grantees and is inheritable.

2. Easement in Gross. A personal interest in or the right to use another’s land. It is not appurtenant to a dominant estate and is therefore not inheritable, but “dies” with the person who acquired it.

3. Easement of Necessity. An easement necessary for the continued use of the land when a larger tract of land has been subdivided. Every owner has the right to be able to get to his or her land. If without the easement either the grantee (in U.S. law) or grantor (in U.S. law) cannot make use of his or her property, the existence of an easement of necessity is implied by law.

(Revised by Ann De Vries)

What is Easement?

For a meaning of it, read Easement in the Legal Dictionary here. Browse and search more U.S. and international free legal definitions and legal terms related to Easement.

Servient Estate Owner’s Wrongful Obstruction of Right-of-Way Easement

This section examines the Servient Estate Owner’s Wrongful Obstruction of Right-of-Way Easement subject in its related phase of trial. In some cases, other key elements related to trials, such as personal injury, business, and criminal litigation, are also addressed.

Cause of Action for Servient Estate Owner’s Unreasonable Interference With Easement of Way by Placement of Obstruction on Easement: an Overview

This section examines this type of action. This subject identifies the various elements of the Cause of Action for Servient Estate Owner’s Unreasonable Interference With Easement of Way by Placement of Obstruction on Easement, offering a practical approach to the litigation issues of this cause of action. See also the entry about legal risks.

Resources

Conservation Easement and Tax Law

There are more details about Conservation Easement in thetax compilation of the legal Encyclopedia.

Easement

Easement in United States

Easement Definition

Easement in Foreign Legal Encyclopedias

Browse the American Encyclopedia of Law for Easement

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Legal Issue for Attorneys

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Practical Information

What is Easement?

Servient Estate Owner’s Wrongful Obstruction of Right-of-Way Easement

Cause of Action for Servient Estate Owner’s Unreasonable Interference With Easement of Way by Placement of Obstruction on Easement: an Overview

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Further Reading (Articles)

Conservation Easement and Tax Law

Easement by Prescription in the context of Real Estate

Resurces

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Subsurface Easement in the context of Real Estate

Resurces

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