Property Law Outline: Easements: Final Exam Outline

I created and used this outline on my Property law exam, receiving an A in the course (5th highest grade). When the issue of Covenants came up, I worked through this outline quickly and wrote as much as I could applying the rules to the facts outlined on the exam.

Did an O own MULTIPLE PARCELS and then split them up?
Was there an easement AT TIME OF SEVERANCE?

Quasi Easement The use by the owner of two adjoining parcels of land of one of the parcels to benefit the other. A quasi easement may become an easement upon the transfer of one or both of the parcels.

Prior use? Must be used at the time of the severance.

Easement by Prescription - Adverse use.
A title in an easement by prescription is sufficient against all (in rem).
(see policy arguments on page 991)

For an easement by prescription one has to show adverse use. (Adverse possession factors) Open and notorious, hostile and exclusive (don’t have to show exclusive or deprived O of possession), uninterrupted, and under a claim of right made in good faith for the statutory period.

There must be a definite and certain line of travel for the statutory period.

Slight deviations will not defeat the easement.

Substantial changes which break the continuity of the course of travel will destroy the claim to prescriptive rights.

Notice? What would have an expert have discovered? i.e. pipes under land.

Was there PERMISSION given?

Hostile? Once given permission, permission continues. Have to show use isn’t/wasn’t permissive. (express or implied permission?)

Implied may not be applied.

Did party REFUSE to grant an easement? no permission can be said to have been given or contemplated.

Was an ENCROACHING STRUCTURE willfully erected w/ knowledge of the claimed easement?

If an encroaching structure was willfully erected with the knowledge of the claimed easement, as in Warsaw v. Chicago Ceilings, Inc., a mandatory injunction plus costs (even if the costs are great) may be issued by the court.

An easement may be obtained without incurring any liability to the underlying property owner.

Was an easement ABANDONED?

One can abandon an easement, but not a fee simple. In Preseault, it was held that where there is a grant in an interest in property in fee simple, it can be intended and held as actually being an easement.

Easement by Necessity

Is there a LANDLOCKED portion of land?

In Schwab v. Timmons, it was stated that an easement by necessity arises where an owner severs a landlocked portion of his property by conveying such a parcel to another. The party must show common ownership of the parcels prior to severance of the landlocked parcel, and the owner of the new landlocked parcel cannot access a public roadway from their own property.

In Schwab v. Timmons, the court was worried that if created by necessity, the Easement would be hidden under the recording act, as there was no prior use.

Remedy = private eminent domain.

FMV w/ road, FMV w/o road, damage to property. Must give proportional share to other parties according to the increase in value.

Is there a financial issue? Court will not want to create an easement by necessity.

Was the problem caused by the person asking for the easement?

If a problem is caused by the person asking for the easement by necessity, the court will probably not grant them the easement.

Baseball Publishing Co. v. Bruton (972) Easement in Gross | License | Lease
In Baseball Publishing, the writing that gave the plaintiff the exclusive right and privilege to maintain advertising on a wall but left the wall in possession of the owner with right to use it for all purposes not forbidden by contract with all the responsibilities of ownership and control was not a lease, but an easement in gross.

A license merely excuses acts done by one on land in possession of another that without the license would be a trespass. It conveys no interest in land, and may either be contracted for or given orally.

Willard v. First Church of Christ - Easement Appurtenant
The primary objective in construing a conveyance is to try to give effect to the intent of the grantor.
Schwab v. Timmons (979) Landlocked Parcels
Easement by Implication arises when there has been a separation of title, with use before the separation took place which continued so long and was so obvious/manifest as to show that it was meant to be permanent, and it must appear that the easement is necessary to the beneficial enjoyment of the land granted for or retained.
Easement by Necessity arises where an owner servers a landlocked portion of his property by conveying such a parcel to another.

Party must show: common ownership of the two parcels prior to severance of the landlocked parcel, and the owner of the now landlocked parcel cannot access a public roadway from his own property.

Geographical Barriers are not recognized as a circumstance warranting easement by necessity.

Van Sandt - Easement by Prescription | Adverse Use
The Van Sandt case held that for an easement by prescription, one has to show adverse use, using the factors in adverse possession.

• 1. Intent at severance.
• 2. Reasonably necessary at least (argue more than just necessary).
• 3. Terms (express/implied)
• 4. Consideration
• 5. Prior Use - Quasi Easement: Was the easement used at or prior to severance?*
• 6. Knowledge (must be at the time of severance).
• 7. Claimant = conveyor or conveyee (was it put expressly into the deed? If not, court less likely to find).
• 8. Made against a simultaneous conveyee (when easement created).
• 9. Reciprocal benefits to conveyor/conveyee (at time of severance).

Warsaw v. Chicago Metallic Ceilings, Inc. (986) Prescriptive Easement.
Party claiming a prescriptive easement must show use of the property which has been open, notorious, continuous and adverse for a an uninterrupted period (SoL).

Must be a definite and certain line of travel for the statutory period.

Slight deviations will not defeat the easement.

Substantial changes which break the continuity of the course of travel will destroy the claim to prescriptive rights.

Continuous use of an easement over a long period of time without the land owners interference is presumptive evidence of its existence.
Hostile - did the party refuse to grant an easement? (no permission given or contemplated).
Was an encroaching structure willfully erected with knowledge of claimed easement?

Mandatory injunction + costs (even if great) may be issued by the court.

Title by prescription is sufficient against all (in rem).

Penn Bowling Center v. Hot Shoppes - Misuse of an easement - parcel other than dominate estate.
Overburdening the easement - using the easement in conjunction with any land not part of the dominate estate.