1. introduction: the power of legislature to allocate wealth



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3. Creation of Easements

1) By written grant or reservation

  • owner might convey his land but reserve an easement for himself

  • an owner might convey a land in conjunction with an easement, where his current property will serve as the servient estate

  • the owner of land might grant an easement in gross where his property will serve as the servient estate to the benefit of the grantee

  • Once create easement, difficult to destroy, unlike license

  • Must be in writing to satisfy the statute of frauds


Cases

  • Cottrell v. Nurnberger (1948) – Grant of easement must be in writing to satisfy statute of frauds

  • In re Ellenborough Park (1955) – Once create easement of using park, cannot later take back to build high-rises

  • Martin v. Music (1953) –Dominant estate owner sold land and successor allowed to use easement of sewer pipe that ran over servient tenement = easement ran with land

  • Boatman v. Lasley (1873) – Easement of right of way must be appurtenant to land and cannot be in gross

  • Geffine v. Thompson (1945) – Easement of having pipe cross onto many properties allowed because appurtenant to land even if not appurtenant to any one dominant tenement  like railroads



2) Creation of easement by implication or easement by necessity

  • Created where parties have not expressly reserve easement but created by operational law.

  • No writing is required

  • Easements which are not specifically granted but customarily allowed and which are INTENDED by parties

            1. Have these easements b/c cannot always put everything in writing or may have been forgotten.

            2. Construe easements against drafter. If want to construe against grantee, requires more evidence of intent to overcome this assumption.

  • Easement by necessity:

1. requires both dominant and servient tenement to have been commonly owned

2. requires enjoyment of new property to be impossible without the easement



  • Courts balance necessity of easement with its burden on servient tenement

  • Courts are less likely to grant negative easements



Cases

  • Van Sandt v. Royster (1938) – Court could grant easement of sewer line for drafter if other parties were aware of the easement. Nelson disagrees that buyers were aware of easement

  • Estate of Waggoner v. Gleghorn (1964) – Easements of necessity are not created by necessity but by custom.

  • Maioriello v. Arlotta (1950) – Court less likely to grant easement of light, air, and view b/c not as necessary as a sewer pipe which affects more significantly the use of land  also sewer line less of a burden because it goes underground.


3) Easement by prescription

  • Acquired in much the same way that title is acquired by adverse possession, only here is based on use rather than possession

  • Elements of easements by prescription

      1. open and notorious use without attempt at concealment

      2. hostile use under claim of right

      3. continuous use for the statutory period.

      4. uninterrupted and exclusive use: mere protest not considered to interrupt use

  • No prescriptive easements for light, air and view

        • Do not allow this easement because restrict development of property (especially in cites) and other person can do nothing to stop you from enjoying light and air adversely to stop statute of limitations from running



Cases

  • Parker v. Foote (1838) – No negative easements by prescription

  • Dartnell v. Bidwell (1916) – Do not have to be using easement at every instant. All owner of servient tenement has to do to stop the statute of limitations from running is write you a letter saying stop using X as easement

  • Romans v. Nadler (1944) – Should also be continuous and hostile and under claim of right like adverse possession.

        • Infrequent trespasses by neighbors are not easement but just allowed because assume it is a neighborly thing to do



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