The Scope of Easements

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The Scope of an Easement

The scope of an easement very much depends on the manner in which the easement was created. Therefore, the discussion of the scopes of easements must be analyzed on the basis of the method by which the easement was created.

The Scope of Easements Created by Express Grant or Reservation

Typically, the scope of an easement will be restricted to what the parties had in mind when the easement was created. The holder of the easement (or the owner of the dominant tenement in the case of an easement appurtenant) may not engage in any use of the servient tenement that is beyond the scope of the usage allowed by the terms that created the easement. However, if circumstances change in a manner that was unforeseeable to the parties at the time of the creation of the easement, then the scope of the easement could change along with it, as long as it is reasonable to assume that the parties would have had the usage in mind had they anticipated the changed circumstances. For example:

In 1880, in a rural county in Arkansas, Jeter granted Chandler an easement, allowing Chandler to cross over Jeter’s property with his animals to get his produce to Black Oak, a nearby town. Decades later, automobiles began proliferating throughout the area so that produce was now carried by automobiles and not on the backs of animals. Although the easement only allowed Chandler to cross Jeter’s land with animals, a court would probably allow the scope of the easement to be expanded to include crossing the land via automobile. In this case, although the scope of the easement did not allow the passage of automobiles across the servient tenement, the unforeseeable change in circumstances would probably be enough to expand the scope of the easement.

It should be noted that the scope of the easement not only limits the nature of the usage by the easement holder, it also limits the quantity of usage allowable to whatever quantity of usage was anticipated at the time of the easement’s creation. An easement that calls for a single person or a single family who live on the dominant tenement to be allowed to cross a path on the property would not necessarily be wide enough in scope to allow 100 people to cross that same property, even if those 100 people all ended up living on the dominant tenement. For example:

Dominic owns a large parcel of land that is cut off from Main Street by Sandra’s land. He and Sandra strike a deal in which Sandra gives Dominic an easement to cross over her property within the path outlined in red.

One day, Dominic decides to move away. Instead of selling his whole property to one buyer, he subdivides the property into four subdivisions and sells each subdivision to a different buyer. Although Dominic was allowed to walk over Sandra’s property, it is doubtful that the easement would be wide enough in scope to allow all of the buyers of the subdivisions to walk over Sandra’s property. This is true in spite of the fact that all the new buyers live on the property that consisted of the dominant tenement and even though they will only be walking within the space that Dominic had the right to walk (within the red path). Since the original easement called for only a single person (or family) crossing over Sandra’s property, it would be unfair to her to automatically allow four families to cross over the same path simply because the dominant tenement was subdivided. In all likelihood, this widening of the scope of the easement would cause a court to rule that the easement is extinguished.

The same is true, of course, if the dominant tenement itself is enlarged. The easement will be extinguished if the enlarging of the dominant estate adds to the burden on the servient estate. In other words, barring an unforeseen change in circumstances, the scope of the usage of the easement cannot be expanded beyond the scope or usage that the original parties had in mind when the easement was created.

The Scope of Easements Created by Implication

With regard to an easement created by implication, there is no language of creation to look to when determining the scope of the easement because the easement was not created with express language. Therefore, actual intent of the parties is not a viable way to determine the scope of an easement acquired by implication.

For an easement acquired by implication based on “prior use,” the scope of the easement is equivalent to the extent of the prior use. If the easement by implication was created based on necessity, the scope of the easement is strictly limited to the scope of the necessity. For example:

Blanche sells a parcel of her land that is completely cut off from all roadways to Phil. Phil acquires an easement by implication to cross over Blanche’s property to get to the road, because of the necessity of him having such an easement. However, Phil’s easement is limited to what is absolutely necessary. For example, Blanche could set aside a certain path that is just wide enough for Phil to access the road and tell him to confine his usage to that path. Of course, that path might have to be wide enough and convenient enough to drive a car through if the circumstances indicate that Phil would need to drive a car from his property to the road and back.

The Scope of Easements Created by Prescription

The intent of the parties is especially irrelevant in determining the scope of an easement by prescription because, one of the parties, the owner of the servient tenement, clearly did not want the easement to come into existence at all. The scope of the prescriptive easement will generally be only as wide as the purpose or purposes for which the holder of the easement undertook the actions that led to the creation of the easement. The scope cannot be expanded to accommodate a future change in circumstances. Since the owner of the servient tenement did not know that the easement was being created, the scope of the easement will be interpreted as being very narrow. It will be limited strictly to the actual extent of the usage during the period that the easement was created. 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. Mike thus acquires an easement by prescription that allows him to walk across John’s property. The scope of the easement, however, will be limited to allowing Mike to walk across that very same path in the same manner. If Mike wants to start riding his bike across the path instead, this would probably be disallowed as it would be an expansion of the scope of the easement that was gained by prescription.

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