CHAPTER 9

EASEMENTS AND PROMISES CONCERNING LAND

Introductory note:  This chapter considers various rights which one may have in the land of another. These fall into two broad classes: (1) easements (and the related concept of licenses); and (2) promises concerning land, which include both covenants that may be enforced at law, and so-called “equitable servitudes,”  which are enforceable in equity (usually by injunction).

I. EASEMENTS GENERALLY

A. Definition of easement:  An easement is a privilege to use the land of another. Easements can be of either an affirmative or negative nature.

1.  Affirmative easements:  An affirmative easement is one which entitles its holder to do a physical act on the land of another. Most easements are of this variety.

Example:  A is the owner of Blackacre. He gives B a right of way over Blackacre, so that B can pass from his own property to a highway which adjoins Blackacre. B holds an affirmative easement, since he is permitted to make physical use of A’s property (by passing over it).

2.  Negative easement:  A negative easement is one which enables its holder to prevent the owner of land from making certain uses of that land. Such easements are comparatively rare, and do not permit the holder of the easement actually to go upon the property.

Example:  A owns Whiteacre, which is right next to the ocean. B owns Blackacre, which is separated from the ocean by Whiteacre. A gives B an easement of “light and air”, which assures B that A will not build any structure on Whiteacre which will block B’s view of the ocean. This is a negative easement, since it does not authorize B to go on A’s property, but allows B to restrain A from certain uses of A’s property. (The negative easement would probably be enforced by an injunction, but might also be enforced by a suit for damages.)

B.  Easements appurtenant vs. easements in gross:  A second important distinction is between easements that are appurtenant to a particular piece of land, and those that are “in gross.”

1.  Appurtenant easement:  An easement appurtenant is one which benefits its holders in the use of a certain piece of land.

a.  Dominant and servient tenements:  The land for whose benefit the appurtenant easement is created is called the dominant tenement. The land that is burdened, or used, by the easement is called the servient tenement.

Example:  Blackacre, owned by S, stands between Whiteacre, owned by D, and the public road. S gives D the right to pass over a defined portion of Blackacre to get from Whiteacre to the road. This right of way is an easement that is appurtenant to Whiteacre. Blackacre is the servient tenement, and Whiteacre is the dominant tenement.