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3.  Creation in stranger to deed:  At common law, it was not possible for an owner of land to convey that land to one person, and to establish by the same deed an easement in a third person. As the rule was sometimes stated, an easement could not be created in a“stranger to the deed.” Burby, p. 71.

a.  Modern view:  Most modern courts have now abandoned this rule, and permit an easement to be created by a deed in a person who is neither the grantor nor grantee. Similarly, Rest. 3d (Servitudes), §2.6(2), permits the grantor to create an easement in a third party who is not the grantee.

b.  Limited exception by other courts:  Even among courts who pay lip service to the common-law “no easement in a stranger to the deed” rule, an exception is often made for a use made upon the property prior to the conveyance. See 2 A.L.P. 254-55, n. 2.

Example:  O sells two lots (Lots 19 and 20) to A. Lot 19 has a building on it; Lot 20 is vacant, and is used by O’s church as a parking lot. O’s deed of Lot 20 to A is expressly made “subject to an easement for automobile parking during church hours for the benefit of the church….” A records the deed to Lot 20, and then sells both lots to B. The deed received by B does not contain an easement. Several months later, B finds out about the easement clause in the first deed, and brings an action to quiet title against the church (i.e., to gain a declaration that the church has no valid easement.) He relies on the common-law rule that an easement may not be created in a stranger.

Held, for the church. The common-law rule against easements in a “stranger to the deed” is a product of feudal notions that have no relevance today. It not only frustrates the grantor’s intent, but is also inequitable because the grantee has presumably paid a reduced price for title to the encumbered property. Here, for instance, O testified that she discounted the price she charged A by one-third because of the easement. Nor has B relied upon the common-law rule, since he did not even read the deed to A until several months after buying the property. Therefore, the easement is valid. Willard v. First Church of Christ, Scientist, Pacifica, 498 P.2d 987 (Cal. 1972).

C.  Creation by implication:  The situation discussed just previously was that in which the owner of land expressly creates an easement. It may happen, however, that two parties are situated in such a way that an easement could be created, but no express language to that effect is used. If certain requirements are met, the court may nonetheless find that an easement has been created by implication.

1.  Exception to Statute of Frauds:  Since an easement may normally be created only by compliance with the Statute of Frauds (supra, p. 205), creation of an easement by implication is in effect an exception to the Statute of Frauds. For this reason, the requirements for creation of an easement by implication are designed to ensure that there is strong circumstantial evidence that the parties did in fact intend to create or reserve the easement.

2.  Summary of requirements:  For an easement by implication to exist, these three requirements must all be met:

[1]  Land is being“severed” from its common owner. That is, it’s being divided up so that the owner of a parcel is either selling part and retaining part, or is subdividing the property and selling pieces to different grantees. (See p. 207 for more about this.)

[2]  The use for which the implied easement is claimed existed prior to the severance referred to in [1], and was apparent and continuous prior to that severance. (See p. 208.)

[3]  The easement is at least reasonably necessary to the enjoyment of what is claimed to be the dominant tenement. (See p. 209.)

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