b. Test for appurtenance: For an easement to be appurtenant, its benefit must be intimately tied to a particular piece of land (the dominant tenement). It is not enough that the beneficiary of the easement happens to have an interest in a piece of land that is made more valuable by the easement. Most of the time, in order for the easement to be appurtenant, the dominant tenement will have to be adjacent to the servient tenement.
2. Easement in gross: An easement in gross, by contrast, is one whose benefit is not tied to any particular parcel of land. The easement is thus personal to its holder.
Example: O, the owner of Blackacre, gives his friend E the right to come onto Blackacre anytime he wants and use O’s swimming pool. O grants this right purely out of his friendship for E, and without respect to E’s ownership of any nearby land. This easement is in gross, and is personal to E, even if E happens to owns a nearby parcel.
a. Benefit tied to parcel: An easement appurtenant and an easement in gross can usually be distinguished by analyzing the benefit which the easement confers. If it is a benefit which can only accrue to one who is in possession of a particular parcel (the dominant tenement), the easement must be appurtenant, rather than in gross.
Example: O owns three lots. Lot 3 is used as a filling station. O conveys Lot 2, but reserves a right of way over Lot 2 (which right of way O intends to use as a driveway to serve Lot 3). When O dies, she devises Lot 3 to her daughter, P. D eventually gains title to Lot 2. P sues for a declaration that she holds a valid easement over Lot 2.
Held, the easement is appurtenant, since the driveway could only be of use to the possessor of Lot 3. Therefore, the easement was automatically transferred when Lot 3 (the dominant estate) passed by will to P, and P has the full benefits of the easement. Mitchell v. Castellaw, 246 S.W.2d 163 (Tex. 1952).
b. Consequence of distinction: The principal consequence of the distinction between easements appurtenant and easements in gross relates to assignments and division. Whereas an easement appurtenant passes with ownership of the dominant parcel (as in Mitchell, supra), an easement in gross is sometimes not assignable at all, and is frequently not divisible for use by several persons independently of each other. These issues are discussed more fully infra, p. 223.
3. Profit: A property interest related to the easement is the profit, sometimes called the profit a prendre. The profit is the right to go onto the land of another and remove the soil or a product of it. Thus the right to mine minerals, drill for oil, or capture wild game or fish, are all traditionally called profits.
a. Functionally identical: Under American law, the rules governing profits are identical to those governing easements. Accordingly, all statements made below about easements are applicable to profits, unless the contrary is indicated. See Rest. Special Note to §450, stating that the Restatement does not use the term “profit” at all.