Easement Defined

1
Easement Defined

• Non-possessory interests in realty
• Negative Easements Solar or wind
• MO Statute 422.012 No solar easements by
  prescription (must be expressly granted)
• Affirmative Easements Roads, utilities above
  and below ground, paths
• Location How wide?
• Scope For what purposes? Fenced off?
• Duration Either a stated time period or forever
  (in perpetuity)

2
Creating An Easement

• Express Grant
• Express Reservation
• Implied Grant
• Implied Reservation
• Prescription
• Private Condemnation (Chapter 228.342)
• Maximum width of 40 feet
• Must pay fair market value
• Road location decided by the jury

3
Doctrine of Prescriptive Rights

• This is a court-made doctrine (common law)
• Similar to the doctrine of adverse possession
• Allows a trespasser to acquire rights in land
• But the rights in land is not complete title,
  but rather an easement to use the land
• Trespasser must be able to prove in a quiet
  title lawsuit FOUR of the five elements of
  adverse possession
• Which element of adverse possession is NOT
  required to get an easement across anothers land
  by prescription?
• Dont have to prove exclusive use (dont have
  to be the only person using the land, i.e., dont
  have to exclude the true owner)

4
Terminating An Easement

• Express Release Via A Quitclaim Deed
• Expiration of Stated Duration
• Abandonment
• Prescription
• Conveyance to Bona Fide Purchaser (BFP)
• Someone who gives value and is without notice
  that someone other than the seller has rights

5
Proffit v. Plymesser (Ohio, 2001)

• Which of the following is NOT one of the
  arguments made by Plymesser (whose land was
  subject to the road easement)?
• 1) Unfair to allow Proffitt to buy more land to
  access (more than 100 additional acres) than the
  original 70 acres the easement was granted for
• 2) That Plymesser had the right of co-possession
  to the road easement land and should be allowed
  to graze his cattle on the easement (so would
  need gates to keep his cattle fenced in)
• 3) Prior Ohio court decisions allowed putting
  gates across road easements
• 4) That Proffitt should not be allowed to widen
  the road easement to accommodate modern (wider)
  machinery as the original easement grant was at a
  time when only a narrow farm path was needed
• 5)  The written easement did not state it was in
  perpetuity (forever)