The Creation of Easements

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An easement can be created in one of three ways: by an express grant or reservation, by implication, and by prescription.

Creation by Express Grant or Reservation

The most straightforward method of creating an easement is by express grant. This occurs when the owner of the servient tenement actually gives the easement to the owner of the dominant tenement. As we discussed earlier, a grant is assumed to be forever unless noted otherwise in the terms of the grant.

An easement can also be created by an express reservation. That is, a party selling or transferring property can reserve for himself or for a third person, the right to use the property for a specified purpose. For example:

Archie and Jughead are neighbors. Each house has a driveway on front of it. However, Jughead’s driveway is always filled to capacity because he parks his hamburger selling trailer there, so he always parks in Archie’s driveway. Archie consents to this arrangement because he and Jughead are friends and because he has extra room in his driveway anyway. As it stands, Jughead has a license to park in Archie’s driveway, which Archie can obviously revoke if he so chooses. One day, Archie decides to sell his house to Reggie. However, Archie is worried that Reggie will not allow Jughead to continue parking in the driveway. So, Archie has a provision inserted into the deed that states that Archie reserves the right of Jughead to park in the driveway. Reggie agrees to the provision and accepts the deed. Archie has reserved an easement for Jughead in the property. Jughead has an easement (probably an easement appurtenant) that allows him to park in the driveway forever.

Creation by Implication

Even if an easement is not created expressly, it can be created by implication. That is, if the circumstances surrounding a grant of property indicate that the grantor must have intended that a party retain or obtain an easement, a court can infer an easement even though the easement was not expressed.

There are two manners in which an easement can be created by implication:

1. Prior Use: If property that is owned by a single person is split by a grant of part of that property to someone else, or by grants of pieces of the property to different grantees, and it is apparent that an easement would be required for the continuing use of the property in the manner that is has been used until now an easement may be implied. Take the following diagram:

Assume that Fred owns the entire estate (within the black box). Fred has always lived in the house (outlined in brown) on Parcel A. Every morning, he leaves his house and walks along the path outlined in red to the bus stop on Main Street, to catch the 8:00 AM bus to work. One day, Fred decides that he does not need so much land. Therefore, he splits the estate into two parcels, along the grey dotted line, into Parcel A and Parcel B and he sells Parcel B to Barney. In the deed, nothing is mentioned about Fred being allowed to walk on the path to Main Street. Nevertheless, if the court determines that it is clear that Fred wanted to keep an easement allowing him to walk across Parcel B to the bus stop, the court can infer an implied easement that is reserved by Fred.

In order for an easement to be implied because of prior use, the following elements are required:

1. The dominant tenement (Parcel A in our hypothetical) and the servient tenement (Parcel B) must have been owned by the same person.
2. The prior use (Fred’s walking along the red path) must be reasonably necessary for the use and enjoyment of the property.
3. The prior use must have been continuous, not just sporadic, and must be active at the time that the property was transferred (ie. Fred must be using the path on a consistent basis at the time of the sale).
4. The parties must have intended that the prior use should be allowed to continue after the transfer of the property.
5. It must have been apparent to any observer that the use has been taking place. This does not mean that the transferee has to actually know about the use. It merely means that an observer watching the property would have observed the usage.

Obviously, the determination as to whether these elements are met is a subjective test that varies from case to case. It is unclear whether Fred would retain an implied easement in the above case. However, at least it is possible for the elements to have been satisfied based on the circumstances. See Van Sandt v. Royster, 148 Kan. 495 (1938).

2. Necessity: An easement can be implied from “necessity” when the owner of a parcel divides the parcel in a manner that deprives one of the resulting subdivisions of access to something that is absolutely necessary for the use and enjoyment of the property, such as a public roadway. For example:

Omar owns a lakeside parcel of property, which he would like to divide and sell as subdivisions. He divides and sells the property to Alan and Beth in the following manner:

In this case, unless Alan is a fish or unless he likes to take his boat out every time he wants to get a quart of milk, Alan will not be able to reasonably enjoy the use of his property unless he receives an easement to cross over Beth’s land to access the roadways. Therefore, a court will infer an easement that is reasonably necessary to allow Alan's use and enjoyment of his property. For example, the court might infer that Alan has an easement to cross to the road via the path outlined in red.

Easement by Prescription

Acquiring an easement by prescription is the equivalent to acquiring a parcel of property by adverse possession. In other words, an easement can be acquired if a person uses property that does not belong to him or her in a manner consistent with the existence of an easement for a period longer than the jurisdiction’s statute of limitations for land ejectment actions. For example:

John owns a parcel of land. For 25 years, every day, Mike walks across the same path on John’s property to access a road beyond John’s property. John never gave Mike permission to do so. By such continuous, open and hostile use, Mike can gain an easement that allows him to permanently walk across the property by “prescription.”

The elements necessary for acquiring an easement by prescription are identical to the elements for acquiring real property by adverse possession. The easement must be used in an open and notorious manner. The use must be continuous. The use must be hostile to the ownership of the property owner and under a claim of right (i.e., without the owner’s permission). As we discussed these elements in detail in the chapter on adverse possession, it is not necessary to discuss these elements in detail again.

The one difference between the elements necessary for easement by prescription and those necessary for adverse possession is the element of exclusivity. Recall that for property to be acquired by adverse possession, the possessor must be in exclusive possession of the property for the entire statutory time period. However, in the case of an easement by prescription being acquired, an exclusivity requirement would make no sense because the use of property that constitutes an easement is inherently shared with the owner of the property. Therefore, the acquisition of an easement by prescription does not require that the use be exclusive.

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