Common Law reserve an easement for a stranger to the title – Can’t Circumvent Common Law Rule Deed property to church, have church reserve easement Reserve easement in gross then assign to church Grant easement to church, then transfer land Holding: Common law rule gone, rules intent of grantor RTP §2.6(2) Easement can be created in favor of 3rd parties – NOTE: Majority still uses common law rule License Permission to do something that is otherwise trespass revocable – – Easement by Estoppel/Irrevocable License H gave predecessor license to cut road on land Holbrook v. Taylor – T’s H’s Elements Servient owner consents to dominant use owner’s Servient owners knows/should know dominant owner will materially his position believing that permissive use would not be revoked change owner substantially changes his position by investment in either the dominant or servient estate Subsequent purchaser is bound through inquiry notice RTP §2.10 Investment in improvements in either estate may result in estoppel – §4.1 cmt. g expectations creating the servitude define its scope. Reasonable – Easement by Necessity Elements Common owner severed property Necessity existed at the time of the severance (severance caused necessity) Othen v. Rosier Easement is for egress/ingress to parcel strictly necessary Not for nor for convenience reasonable necessity Only lasts as long as necessary Policy An owner that buys a landlocked parcel would never do so knowingly – Strict Necessity NY/TX use strict, majority use necessity reasonable – No strict necessity when public road was available on Schwab v. Timmons – foot down a steep cliff Easement when access to land exists but is inadequate, Weaver v. Cummins – difficult, or costly (TX) Hill owned parcells, sells, O using road on land which Othen v. Rosier – R’s R renders useless by flooding it Court indicates that Hill owned land to north/south so necessity exist at didn’t severance Easement from Prior Use Elements
Common Law – Can’t reserve an easement for a stranger to the title Circumvent Common Law Rule Deed property to church, have church reserve easement Reserve easement in gross then assign to church Grant easement to church, then transfer land Holding: Common law rule gone, intent of grantor rules RTP §2.6(2) – Easement can be created in favor of 3rd parties NOTE: Majority still uses common law rule License – Permission to do something that is otherwise trespass – revocable Easement by Estoppel/Irrevocable License Holbrook v. Taylor – H gave T’s predecessor license to cut road on H’s land Elements Servient owner consents to dominant owner’s use Servient owners knows/should know dominant owner will materially change his position believing that permissive use would not be revoked owner substantially changes his position by investment in either the dominant or servient estate Subsequent purchaser is bound through inquiry notice RTP §2.10 – Investment in improvements in either estate may result in estoppel §4.1 cmt. g – Reasonable expectations creating the servitude define its scope. Easement by Necessity Elements Common owner severed property Necessity existed at the time of the severance (severance caused necessity) Othen v. Rosier Easement is strictly necessary for egress/ingress to parcel Not for convenience nor for reasonable necessity Only lasts as long as necessary Policy – An owner that buys a landlocked parcel would never do so knowingly Strict Necessity – NY/TX use strict, majority use reasonable necessity Schwab v. Timmons – No strict necessity when public road was available on foot down a steep cliff Weaver v. Cummins – Easement when access to land exists but is inadequate, difficult, or costly Othen v. Rosier (TX) – Hill owned parcells, sells, O using road on R’s land which R renders useless by flooding it Court indicates that Hill owned land to north/south so necessity didn’t exist at severance Easement from Prior Use Elements
Property_Outline_Sterk_Spring_2012.docx