What IS an Easement?
An easement is “a right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not inconsistent with the general property in the owner.” It is an interest in land owned and possessed by another, permitting its limited use or enjoyment without actual occupancy. The use involved is almost invariably an incidental or indirect utilization of the land, such as installation of power lines or pipes as conduits of gas, water, or electricity, or ingress and egress to and from other land for pedestrians or vehicles, rather than productive uses of the land such as cultivation, mining, manufacturing, commerce, or residence.
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[accordion-item title=’How is an Easement Different Than Simply “Owning Property”?’]
An easement is a non-possessory interest. Rights which are more than a mere easement and include the rents and profits of the land, are known as “profits a prendre,” the most common example being hunting and fishing privileges. Where the so-called “easement” is not connected with occupancy of another tract of land, it would seem not to be a true easement at all, but may fall into the category of an easement in gross or may be a mere license. An easement is classified as an incorporeal interest because it carries with it no control over the land itself. [/accordion-item]
[accordion-item title=”Servient Tenements v. Dominant Tenements”]
An easement generally involves two different pieces of land: one that serves and one that benefits. The land used by or “serving” the grantee of the easement is known as the servient tenement; the land served by or benefiting from the easement is known as the dominant tenement.[/accordion-item]
[accordion-item title=”How Do Easements Originate?”]
Easements may originate in one of several modes, such as express grant, prescription, implication, and condemnation. Thus, where a deed, after describing a tract of land, further conveys a right of ingress and egress over adjoining lands of the grantor, it creates an express easement. If the deed describes land as bounded by an alley, an easement in the alley is created by implication although not expressly set forth. If a landowner repeatedly crosses adjoining land going to and from his property over a required period of years, he may acquire a prescriptive easement over the adjoining land. If some public authority or utility company needs to run a road, transmission line, or pipe over private property, it may ac- quire an easement by condemnation proceedings which involve compensation for the rights taken.[/accordion-item]
[accordion-item title=”What is a Prescriptive Easement?”]
Prescriptive easements – as opposed to express or written easements – may be acquired by use for a period of either seven years or twenty years, depending on the type of use. A private way, such as a path, driveway, etc. is acquired by seven years’ use: “Whenever a private way has been in constant and uninterrupted use for seven or more years and no legal steps have been taken to abolish it, it shall not be lawful for anyone to interfere with that private way.”
Prescriptive easements that are not private ways, such as party walls, a flowage easements, a utility lines, or public roads, must be used for twenty years before they are “acquired”: “Possession of real property in conformance with the requirements of Code Section 44-5-161 for a period of 20 years shall confer good title by prescription to the property against everyone except the state and those persons laboring under the disabilities stated in Code Section 44-5-170.”
One cannot acquire prescriptive easements against the following:
• state or political subdivisions
• minors during their minority
• prisoners during their confinement
• mentally ill or intellectually disabled persons during the periods of their ill-
ness or disability
• unrepresented estates during their first five years
• remaindermen during the life estate
• as a grantor against his grantee.
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[accordion-item title=’How are Easements Terminated?’]
“An easement may be lost by abandonment or forfeited by nonuse if the abandonment or nonuse continues for a term sufficient to raise the presumption of release or abandonment.” Where an easement of way has been acquired by grant, it may be extinguished by evidence of nonuse, coupled with clear, unequivocal, and decisive evidence of the intent to abandon the easement.[/accordion-item]
[accordion-item title=’Obstructions of Easements’]
“In the event the owner or owners of land over which a private way may pass or any other person obstructs, closes up, or otherwise renders the private way unfit for use, the party or parties injured by the obstructions or other interference may petition the judge of the probate court in the county where the private way has been in use to remove the obstructions; and, upon the petition being filed, the judge shall issue a rule nisi directed to the party or parties complained against calling upon the offending parties to show cause why the obstructions should not be removed and the free use of said private way reestablished. The rule shall be served by the sheriff or his deputy at least three days before the day set for the hearing; and when the day arrives the judge shall proceed to hear evidence as to the obstructions or other interference. If it appears that the private way has been in continuous, uninterrupted use for seven years or more and no steps were taken to prevent the enjoyment of the same, the judge shall grant an order directing the party or parties so obstructing or otherwise interfering with the right of way to remove the obstructions or other interference within 48 hours; and, if the party or parties fail to remove the obstructions, the judge shall issue a warrant command- ing the sheriff to remove the obstructions immediately.”[/accordion-item]
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