Was there an easement AT TIME OF SEVERANCE?
A title in an easement by prescription is sufficient against all (in rem).
(see policy arguments on page 991)
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.
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.
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).
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).
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?
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.