INTRODUCTION

EASEMENT

A. An easement is a non-possessory right in the holder of an easement to make some use of

land. In other words, an easement is a “lesser” interest in the fee estate that allows the party
benefiting from the easement to make some use of the property, such as using it for access,
installation of utility lines, etc.

B. Dominant vs. Servient: 1. The “holder” of an easement right, or the party that is
benefiting from the easement, is referred to as the “dominant tenant”. Likewise, the property
benefiting from an easement is referred to as the “dominant estate” or “dominant tenement”.
2. The party “burdened” by the easement is referred to as the “servient tenant”. Likewise, the
property burdened by the easement is the “servient estate” or “servient tenement”.

C. Exclusive vs. non-exclusive easements 1. Because an easement right is non-possessory, it

generally does not allow the party benefited by the easement to exclude others or to stop them
from also enjoying the property. In other words, easements are generally nonexclusive. 2.
However, easements can be specifically granted as exclusive easements, allowing the holder
of the easement right the ability to exclude others.1

Indian Easement Act, 1882

4. “Easement” defined.- An easement is a right which the owner or occupier of certain land
possesses, as such, for the beneficial enjoyment of that land, to do and continue to do
something, or to prevent and continue to prevent something being done, in or upon, or in
respect of certain other land not his own. Dominant and servient heritages and owners The
land for the beneficial enjoyment of which the right exists is called the dominant heritage,
and the owner or occupier thereof the dominant owner; the land on which the liability is
imposed is called the servient heritage, and the owner or occupier thereof the servient owner.

Explanation: In the first and second clauses of this section, the expression "land" includes
also things permanently attached to the earth; the expression "beneficial enjoyment" includes
also possible convenience, remote advantage, and even a mere amenity; and the expression

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"to do something" includes removal and appropriation by the dominant owner, for the
beneficial enjoyment of the dominant heritage, or any part of the soil of the servant heritage
or anything growing or subsisting thereon.

Illustrations

(a) A, as the owner of a certain house, has a right of way thither over his neighbour B’s land
for purposes connected with the beneficial enjoyment of the house. This is an easement.

(b) A, as the owner of a certain house, has the right to go on his neighbours B’s land, and to
take water for the purposes of his household out of a spring therein. This is an easement.

(c) A, as the owner of a certain house, has the right to conduct water from B’s stream to
supply the fountains in the garden attached to the house. This is an easement.

(d) A, as the owner of a certain house and farm, has the right to graze a certain number of his
own cattle on B's field, or to take, for the purpose of being used in the house, by himself, his
family, guests, lodgers and servants, water or fish out of C's tank, or timber out of D's wood,
or to use, for the purpose of manuring his land, the leaves which have fallen from the trees
onE’s land. These are easements.

(e) A dedicates to the public the right to occupy the surface of certain land for the purpose of
passing and re-passing. This right is not an easement.

(f) A is bound to cleanse a water course running through his land and keep it free from
obstruction for the benefit of B, a lower riparian owner. This is not an easement.2
 

An easement is a legal right to occupy or use another person’s land for specific purposes. The
use of the land is limited, and the original owner retains legal title of the land. A legally
binding easement must be made in writing, the exact location stipulated in the property’s
deed. Easements most commonly grant utility companies access for the purpose of installing
and maintaining power, phone, and cable lines, as well as for water drainage purposes.

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An easement may also be granted to allow the owner of a neighboring property to install an
access driveway. In most cases, even when the land in question changes hands, the easement
remains in effect and subsequent owners are required to allow the easement owner to
continue using the land as specified. To explore this concept, consider the
following easement definition.

Noun

1. The right to use another person’s land for a designated purpose.

Origin

14th century Late-Middle English esement

What is an Easement

Easements are created when a property owner expresses language in a legal document. While
an oral agreement for creation of an easement may be made, it does not always hold up in
court. This is referred to as an “implied easement,” and often occurs when two neighbors
simply agree that a driveway or other access is necessary to one property across the other,
with no legal documentation. This can become a complicated situation in the event the
crossed property is sold to someone who does not wish to grant easement rights under an
implied easement, and is not always held up in court.

For the creation of an easement to be legally binding, the document must be filed with the
county Recorder. Defining the exact location, nature, and purpose of an easement in a deed or
other legal document creates an “express easement.”

Types of Easement

There are several types of easement, each of which grants the holder specific use of the
property. The type of easement depends on the type of property involved, the relationship of
the parties, and the specific use for which the easement is granted.

Utility Easement

A utility easement is perhaps the most common type and it involves giving easement rights to
a utility company or the local municipality (city, county, or state) in general. These easements
are typically described in the property deed and include a map defining the area to which the

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utility or municipality is entitled. In the case of a utility easement, the property owner can use
the property however they choose, as long as they do not interfere with the utility company or
municipality’s use.

Private Easement

Private easements occur when a property owner sells an easement to an individual. This may
be for a number of reasons, including giving a neighbor driveway access, or sharing a sewer
line or well with a neighbor. Before granting a private easement, or purchasing a property
that has this type of easement, it is vital that the property owner or potential buyer review the
documents carefully, as a private easement often limits what the property owner can do on or
around the defined area. For example, a property owner who has granted a solar access
easement to his neighbor may not be allowed to plant trees or construct buildings, either of
which would block sunlight, next to the easement

Easement by Necessity

Situations often arise when one property owner must cross another’s land for a crucial
purpose, such as accessing their land and home. A landowner cannot be denied access to his
home or property, and this is generally taken into account in the deeds when the land is
originally divided. Although necessity creates a right to an easement, it is imperative to
ensure the exact location of an easement by necessity is recorded on the deed.

Prescriptive Easement

A prescriptive easement occurs when someone acquires easement over another’s land for a
specific purpose. This differs from easement by necessity as the person acquiring the
easement only uses the property for a set amount of time. Each state has specific statues that
determine the length of time a person can use a prescriptive easement, and whether the person
holding the easement is required to pay a portion of the property taxes on the land being used.
A landowner may simply grant permission for the other individual to use the property on a
limited basis, but if access is denied, the individual must file a claim of easement by
prescription, allowing the court to make a ruling.

Public Easement

A public easement grants a certain defined area of land for public use. An example would be
the granting of public access of a portion of the landowner’s property for a park or touring.

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Easement by Prior Use

An easement by prior use is based on a notion that, on occasion, landowners intend to form
an easement, but forget to include it within the deed. In this case, five elements are needed to
establish an easement by prior use:

1. Common ownership of both properties at any one time

2. A severance of the properties

3. Use of easement before and after the severance

4. Notice of the easement

5. The easement is for necessary and beneficial use

For example, Bob owns two separate lots, one of which provides access to a public street, the
other sits behind it. Bob’s driveway starts on the second lot and runs through the first lot to
the public street. He sells the street-adjacent lot and forgets to specify the driveway area as an
easement in the deed. Most likely, the court will determine Bob is entitled to an easement by
prior use, as it is necessary for him to access his property from the street.

Easement Rights

An easement holder is entitled to do whatever is reasonably necessary to fully utilize the

property for the purpose for which the easement was created. His rights under an easement do
not allow, however, the imposition of an unreasonable burden for the property owner. The
property owner may also use the land as long as such use does not interfere with the purpose
of the easement.

Reasonable use of an easement may change over time as the property evolves and technology
improves. If the court finds that use of an easement is not reasonable, and that the property
owner is unduly burdened by the use, it can restrict the easement holder’s easement rights, or
award the property owner damages. Conversely, if the court finds that the property owner is
interfering with an easement, it may order the property owner to stop the action or remove
any obstruction.

The following rights are recognized as easements, even if there are no official documents or
agreements:

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  Aviation Easement – the right to use the airspace over a property, flying above a
certain altitude, where needed for spraying of property or other agricultural purposes.

 Storm Drain Easement – the right to install a storm drain to carry rainwater to a
river, wetland, or other body of water.

 Sidewalk Easement – the right of the public to use sidewalks in front of a public
area.

 Beach Access Easement – the right for neighboring residents to access a public
beach, even if the access crosses private property.

 Dead End Easement – the requirement for a landowner to grant the public access to
the next public way, even if such access crosses on his property.

 Conservation Easement – the right of a land trust to limit development, usually done
for the purpose of protecting the environment.

Transferring an Easement

When considering a real estate transaction, easements must be taken into consideration,

including the feasibility of transferring an easement. Some types of easements are transferred
when a property changes hands, others are not. For example, an “appurtenant easement”
remains part of the property, while “easements in gross” are considered rights of personal
enjoyment granted by the original property owner. These types of easements may include
access for camping, hunting, and fishing, among other activities. If the property in question
changes hands, it is up to the new owner whether to continue to grant the easement.

Putting it simply, the difference between an appurtenant easement and an easement in gross is
that the appurtenant easement is for the benefit of the land, while an easement in gross only
benefits the individual to whom it is granted.

Duration of an Easement

In general, if the legal easement does not specify the length of time the easement will be in
effect, the courts can assume it was created to last indefinitely. However, if the easement
holder intends to use the land permanently, the duration of an easement should be specifically
stated in the recorded deed containing the easement. In the case of an easement that specifies

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a termination date, the easement holder must stop use of the land on or before that date, or
seek permission to extend the duration of the easement from the property owner.

Trespass Upon an Easement

Blocking a party who has an easement is considered “trespassing upon an easement,” an

action for which the easement owner has a right to file a lawsuit. For example, placing a
fence across a public path that sits on an easement may be considered trespassing upon an
easement, even if the fence was placed by the property owner. In this case, the easement
holder can take the property owner to court, which may then order the fence be removed.

Terminating an Easement

The act of terminating an easement requires the approval of the court. For a property owner
to terminate an easement, at least one of the following facts must be proven in court:

 Both parties have agreed to the termination

 The easement has reached its expiration date

 The easement holder discontinued use the of property

 The need for the easement no longer exists

 The easement holder is creating a hostile use of the property

 The owner of an easement has died

If the property holder seeking to terminate an easement is unable to prove one or more of the
required facts, the court may order him to continue allowing the easement holder to use the
land in question until these facts can be proven.

Related Legal Terms and Issues

 Deed – a legal document drawn up and signed in regards to the ownership of real
property.

 Obstruction – something or someone that prevents access or progress in some

manner.

 Reasonable Use – using land or water in a manner that is legal and just.

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  Severance – an action that ends a relationship or a connection.3

Case Related to Easement

Easements by prescription are created by (1) actual use of another’s land in a way one might
use an easement, over a uniform route, which is (2) open and notorious (3) hostile, (4)
continuous and (5) exclusive. The Mountaineers v. Wymer, 56 Wn.2d 721, 355 P.2d 341
(1960); Gray v. McDonald, 46 Wn.2d 574, 283 P.2d 135 (1955); Northwest Cities Gas Co. v.
Western Fuel Co., 13 Wn.2d 75, 123 P.2d 771 (1942); Downie v. City of Renton, 167 Wash.
374, 9 P.2d 372 (1932), rev’g 162 Wash. 181 (1931). A useful comparison can be made
between the law of prescription and adverse possession. See Stoebuck, The Law of Adverse
Possession in Washington, 35 Wash. L. Rev. 53 (1960), but see Chaplin v. Sanders, 100
Wn.2d 853, 676 P.2d 431 (1984). Though prescription and adverse possession developed
differently, they are generally treated as parallel doctrines. See R. Cunningham, W. Stoebuck
& D. Whitman, The Law of Property § 8.7 (2d ed. 1993); Roediger v. Cullen, 26 Wn.2d 690,
175 P.2d 669 (1946); State ex rel. Shorett v. Blue Ridge Club, 22 Wn.2d 487, 156 P.2d 667
(1945); Northwest Cities Gas Co. v. Western Fuel Co., 13 Wn.2d 75, 123 P.2d 771 (1942);
and Wasmund v. Harm, 36 Wash. 170, 78 P. 777 (1904). The principle distinction between
the doctrines is that prescription involves the use of another’s land that gives rise to easement
rights, whereas adverse possession involves the possession of another’s land that gives rise to
a claim to title. Thus the term “prescription” and the phrase “adverse use” (or “user”) are
interchangeable, and the courts (although not always consistently) list the same required
elements for prescription as for adverse possession, substituting the term 3 “use” in the
former doctrine for “possession” in the latter. The 10-year statute of limitations on actions to
recover land applies to prescription as well as to adverse possession. Wasmund v. Harm, 36
Wash. 170, 78 P. 777 (1904); RCW 4.16.020(1). However, the special 7-year statute for
adverse possession, (RCW 7.28.070-color of title, good faith, payment of taxes), does not
apply to prescription. There are other differences in the way the common elements of proof
are applied in the two doctrines, which are discussed below. A. Actual Use To begin with,
prescriptive use requires proof of some actual, physical use of another’s land of a kind that
one would make of an easement, for example by walking, driving or maintaining utility lines.
The particular characteristics of the use will ultimately define the nature and scope as well as
the location of the claimant’s prescriptive easement rights. See, e.g., Northwest Cities Gas
Co. v. Western Fuel Co., 13 Wn.2d 75, 123 P.2d 771 (1942) (prescriptive roadway easement
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was only 20 feet wide based upon actual use, even though owner of servient tenement had
fenced in a 48-foot strip); Lee v. Lozier, 88 Wn. App. 176, 945 P.2d 214 (1997) (a
prescriptive easement for a boat dock may be gained by use that tends to be seasonal rather
than year round, if the usage is such as would be normal for such an easement). Usually, a
prescriptive easement will be on land appurtenant to that of the adverse user, but it is also
possible to acquire a prescriptive easement over non-adjoining land, which is a so called
easement in gross. Long v. Leonard, 191 Wash. 284, 71 P.2d 1 (1937). The Washington
Supreme Court has said that it is at least possible for the public to acquire an easement by
prescription. Gray v. McDonald, 46 Wn.2d 574, 283 P.2d 135 (1955); see also State ex rel.
Shorett v. Blue Ridge Club, 22 Wn.2d 487, 156 P.2d 667 (1945); Roediger v. Cullen, 26
Wn.2d 690, 175 P.2d 669 (1946). If so, then members of the public who do not own land
appurtenant to the easement would have easements in gross. Also, the courts have frequently
said that the usage must be over a “uniform route.” See, e.g., Gray v. McDonald, 46 Wn.2d
574, 283 P.2d 135 (1955); Roediger v. Cullen, 26 Wn.2d 690, 175 P.2d 669 (1946);
Northwest Cities Gas Co. v. Western Fuel Co., 13 Wn.2d 75, 123 P.2d 771 (1942); Wasmund
v. Harm, 36 Wash. 170, 78 P. 777 (1904). However, it appears that no court has yet denied a
prescriptive easement claim for want of proof of uniform use, which arguably leaves open the
question whether one may acquire by prescription a “recreational easement,” to roam or hike
on another’s land. See R. Cunningham, W. Stoebuck & D. Whitman, The Law of Property §
8.7 (2d ed. 1993).4

Conclusion
An easement is a right which the owner or the occupier of certain land possesses ,as such, for
the beneficial enjoyment of that land, to do and continue to do something ,or to prevent and
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continue to prevent something being done, in or upon , or in respect of certain other land not
his own. An easement is the right to use the real property of another without possessing it.
Easements are helpful for providing pathways across two or more pieces of property or
allowing an individual to fish in a privately owned pond. Traditionally the permitted kinds of
uses were limited, the most important being rights of way and rights concerning flowing
waters. The easement was normally for the benefit of adjoining lands, no matter who the
owner was, rather than for the benefit of a specific individual.

Easements frequently arise among owners of adjoining parcels of land. Common examples of
easements include the right of a property owner who has no street front to use a particular
segment of a neighbor's land to gain access to the road, as well as the right of a Municipal
Corporation to run a sewer line across a strip of an owner's land, which is frequently called a
right of way.Easements can be conveyed from one individual to another by will, deed, or
contract, which must comply with the Statute of Frauds and can be inherited pursuant to the
laws of Descent and Distribution.

Restrictive easement is a condition placed on land by its owner or by government that in

some way limits its use, usually regarding the types of structures which may be built there or
what may be done with the ground itself.5

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