Wednesday, August 16, 2017

Easements on Agricultural Land – Classification and Legal Issues


Easements are common in agriculture.  An easement does not give the holder of the easement a right of possession, but a right to use or to take something from someone else's land.  To the holder of the easement, the easement is a right or interest in land, but to the owner of the real estate subject to the easement, the easement is an encumbrance upon that person's estate.  Easements may take several forms and are common in agricultural settings.  Sometimes, the terminology used to describe an easement can be confusing. 

In today’s post, I take a look at the various types of easements that are common in agriculture and some of the common issues that they present.

Easements in Gross and Appurtenant Easements

An easement may be either an easement in gross or an appurtenant easement. An easement “in gross” serves the holder only personally instead of in connection with such person's ownership or use of any specific parcel of land.  An easement in gross is a non-assignable personal right that terminates upon the death, liquidation or bankruptcy of its holder. 

An easement that is “appurtenant” is one whose benefits serve a particular parcel of land.  An appurtenant easement becomes a right in that particular parcel of land and passes with title to that land upon a subsequent conveyance.  Examples of appurtenant easements include walkways, driveways and utility lines that cross a particular parcel and lead to an adjoining or nearby tract. 

Determining whether an easement is one in gross or is appurtenant depends upon the circumstances of each particular situation. Courts generally prefer appurtenant easements. The particular classification matters when the question is whether the easement in question is assignable or whether it passes with the title to the land to which it may be appurtenant.

Affirmative and Negative Easements

An easement is either an affirmative easement or a negative easement.  Most easements are affirmative and entitle the holder to do certain things upon the land subject to the easement.  A negative easement gives its holder a right to require the owner of the land subject to the easement to do or not to do specified things with respect to that land.  Thus, negative easements are synonymous with covenantal land restrictions and are similar to certain “natural rights” that are incidents of land ownership.  These include riparian rights, lateral and subjacent support rights, and the right to be free from nuisances.  However, most American courts reject the English “ancient lights” doctrine and refuse to recognize a negative easement for light, air and view.  See, e.g., Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. 114 So.2d 357 (Fla. App. 1959).  However, if a property owner's interference with a neighboring owner's light, air or view is done maliciously, the court may enjoin such activity as a nuisance.  See, e.g., Coty v. Ramsey Associates, Inc., 149 Vt. 451, 546 A.2d 196 (1988).

Profits and licenses.  A concept related to an easement is that of a profit.  For example, O, owner of Blackacre, could grant to A a right to enter Blackacre to cut and remove timber.  A is said to have a profit in Blackacre - a right of severance which will result in A's acquiring possession to the severed thing. Easement and profit rights generally include the right to improve the burdened land, perhaps only to a gravel road, but perhaps to erect and maintain more substantial structures, such as bridges, pipelines, and even buildings that facilitate use of the easement or profit.  Sometimes a question arises as to whether a point is reached at which structures become so substantial that the rights become those of occupation and possession instead of just use.  In answering this question, courts look at the circumstances as a whole instead of the labels the parties use.  In general, the existence of permanent, substantial structures is viewed as an estate rather than an easement or profit.

A license is a term that covers a wide range of permissive land uses which, unless permitted, would be trespasses.  For example, a hunter who is on the premises with permission is a licensee.  The distinction between a license and an easement or profit is that a license can be terminated at any time by the person who created the license.  For example, permission to hunt may be denied.  Conversely, easements and profits exist for a fixed period of time or perpetually and are rights in land.  A license is only a privilege.  Likewise, easements and profits are interests in land while licenses are not, and licenses may be granted orally, but because easements and profits are interests in land, they are subject to the statute of frauds and must be in writing.

Implied Easements

An easement may also be implied from prior use or necessity, or arise by prescription.  An implied easement may arise from prior use if there has been a conveyance of a physical part of the grantor's land (hence, the grantor retains part, usually adjoining the part conveyed), and before the conveyance there was a usage on the land that, had the two parts then been severed, could have been the subject of an easement appurtenant to one and servient upon the other, and this usage is, more or less, “necessary” to the use of the part to which it would be appurtenant, and “apparent.”  An easement implied from necessity involves a conveyance of a physical part only of the grantor's land, and after severance of the tract into two parcels, it is “necessary” to pass over one of them to reach any public street or road from the other.  No pre-existing use needs to be present.  Instead, the severance creates a land-locked parcel unless its owner is given implied access over the other parcel.

Prescriptive Easements (Adverse Possession) 

Acquiring an easement by prescription is analogous to acquiring property by adverse possession.  If an individual possesses someone else's land in an open and notorious fashion with an intent to take it away from them, such person (known as an adverse possessor) becomes the true property owner after the statutory time period (anywhere from 10 to 21 years) has expired.  For an easement by prescription to arise, the use of the land subject to the easement must be open and notorious, adverse, under a claim of right, continuous and uninterrupted for the statutory period.

For example, assume that A owns Blackacre, and that B owns adjacent Whiteacre.  A drives across a portion of Whiteacre to reach A's garage on Blackacre.  A does this five days a week for 22 years.  B then puts up a barbed wire fence in A's path.  If A can show an adverse use of Whiteacre and that A's use was continuous for the full statutory period, and that A's use was visible and notorious or was made with B's acquiescence, A will have a prescriptive easement over Whiteacre.  However, acquiescence does not mean permission.  If A receives permission from B to cross Whiteacre, the prescriptive period never begins to run and no prescriptive easement will arise.  See, e.g., Rafanelli v. Dale, 924 P.2d 242 (Mont. 1996)

Adverse possession (prescriptive easement) statutes vary by jurisdiction in terms of the requirements a person claiming title by adverse possession must satisfy and the length of time property must be adversely possessed.  Once title is successfully obtained by adverse possession, the party obtaining title can bring a court action to quiet title.  A quiet title action ensures that the land records properly reflect the true owner of the property.

Termination of Easements

An easement may be terminated in several ways. 

Merger.  Merger, also referred to as unity of ownership, terminates an existing easement.  For example, assume that A owns Blackacre and B owns adjoining Whiteacre.  B grants A an easement across Whiteacre so that A can acquire access to Blackacre.  Two years later, A buys Whiteacre in fee simple.  Because A now owns both tracts of real estate, the easement is terminated. 

Release.  An easement may also be terminated by a release.  If the easement was for a duration of more than one year, the release must be in writing to be effective and comply with all of the formalities of a deed.

Abandonment.  An easement may also be terminated by abandonment.  Mere intent to abandon is not effective to terminate the easement.  Instead, abandonment can only occur if the holder of the easement demonstrates by physical action an intent to permanently abandon the easement.  Mere words are insufficient to cause an abandonment of the easement.  For example, assume that an easement holder builds a barn in such a manner that access to the easement is blocked.  This action would be sufficient to constitute abandonment of the easement.

Estoppel.  An easement may also be terminated by estoppel where there is reasonable reliance by the owner of the servient tenement who changes position based on assertions or conduct of the easement holder.  For example, assume that A tells B that A is releasing the easement over B's property.  As a result, A doesn't use the easement for a long time.  B then builds a machine shed over A's easement.  In this situation, the easement would be terminated by estoppel and A could not reassert the existence of the easement after the machine shed has been built.

Prescription.  An easement may also be terminated by prescription where the owner of the servient tenement possesses and enjoys the servient tenement in a way that would indicate to the public that no easement right existed.


Easements are common in agriculture and can arise in numerous ways.  An understanding of what they are, how they can arise, how they can be terminated, and the associated legal issues can be useful.

Real Property | Permalink


Post a comment