Implied Easements

1
Implied Easements Easements by Necessity
Property
Prof. David Glazier Feb 27, 2007
2
Todays Class

• Sources of Easements
• Easement by Prescription
• Implied Easement Example
• Easement by Necessity
• - Othen v. Rosier
• Public Trust Doctrine
• - Matthews v. Bay Head Improvement Assoc.

3
Holbrook v. Taylor (Ky. 1976)

• How can easements be created?
• - Express written grant
• -- Easement deed
• -- Property deed reserving easement
• -- Property deed excepting easement
• - Implication
• - Necessity
• - Prescription
• - Estoppel

4
Easement by Prescription

• All states require
• use of property belonging to another that is
• open and notorious
• continuous/uninterrupted
• lasting for statutory period
• must be without actual permission
• Some states require owner acquiesce to use
• - did not bring a trespass action, or
• - knew or should have known of use

5
Prescription v. Adverse Possession

• Whats the difference?
• How do you decide which one applies?

6
Implied Easement Creation

• The Setting Van Sandt v. Royster (Kan. 1938)

Easement an interest in land owned by another
that entitles its holder to a specific limited
use/enjoyment - quasi-easement
7
Implied Easement Creation
Division of property can create implied easement
- English courts require strict necessity for
reservation - American majority require only
inferred intent Part of property benefited
becomes dominant estate Part of property burdened
now servient estate Impact of subsequent bona
fide purchaser? - here court found plumbing
gave inquiry notice - treatment of hidden
easements varies by state
8
What if?

• Subsequent purchaser buys all three lots?

9
Othen v. Rosier (Tex. 1950)
FISH CREEK RD

Hill owns 2493 acres
B E L T L I N E R D
60 acres sold in 1897
16 acres sold 1899
DUNCANVILLE RD
10
Easement by Necessity

1. Unity of ownership of estates
2. Roadway is necessity, not convenience
3. Necessity existed at time of severance

11
Matthews v. Bay Head Improvement Assn (N.J. 1984)
12
Matthews v. Bay Head Improvement Assn (N.J. 1984)
2007 Bay Head Improvement Assn Website Please
be aware that Bay Head is a small, quiet
community with no changing rooms or public
restrooms. While no food or beverage is allowed
on the beach, sandwiches and subs can be
purchased at the local grocery store or
restaurant two blocks from the beach.
5 for a one-day pass to use this beach!!
13
Cf Point Pleasant
14
Upcoming Reading
For Thur, 3/01 Read Miller v. Lutheran
Conference, n1-2, pp. 709-16 Read Presault v.
United States and n2-3 pp. 725-3607
15
Questions?