Easements

Easement cannot be extended to newly acquired land

/ Easements, Servitudes

Applying a longstanding rule of law, the New Hampshire Supreme Court held that an easement owner cannot use an easement to access new lands acquired by the dominant estate owner that are contiguous to the lands benefited by the easement. Ryan v. Ryan, 2024 WL 4579312, 2024 N.H. LEXIS 233 (N.H. 2024). In the absence of language to the contrary an easement allows access to the lands to which the easement attaches at the time the easement is granted. New lands added to the dominant estate are not allowed to benefit from the easement under a rule that conclusively presumes that doing so would exceed the scope of the original easement. The court noted, “The purpose undergirding the rule is that the owner of the easement appurtenant may not materially increase the burden of the easement upon the servient estate or impose a new or additional burden.”

No easement for light and air unless expressly created

/ Easements, Nuisance

In a reaffirmation of a longstanding rule, the North Dakota Supreme Court held that there is no easement for light and air unless it is expressly created between the landowners. It is not a nuisance to block a neighbor’s view by building on your own land. Owners do “not have a right to sunlight and open space on adjacent properties.” Berger v. Sellers, 996 N.W.329, 2023 ND 171 (N.D. 2023).

Irrigation spray can ripen into a prescriptive easement

/ Adverse Possession, Easements, Trespass

In a somewhat surprising case, the Idaho Supreme Court has held that an irrigation system that oversprays to cover land and which intrudes onto neighboring property can  ripen into a prescriptive easement if the water sprays intrude on the neighbor’s land for the statutory period. Chester v. Wild Idaho Adventures RV Park, LLC, 519 P.3d 1152 (Idaho 2022).

Do prescriptive easements have to be “exclusive”?

/ Adverse Possession, Easements, Servitudes

Exclusivity makes sense for adverse possession because the very meaning of “possession” is that the adverse possessor acts like the owner and that includes the right to exclude the record owner. With easements, it makes far less sense since easements are limited uses of another’s land and the land owner can still use the land over which the easement sits as long as the owner does not interfere with the uses encompassed by the easement. To deny a prescriptive easement over a road because the record owner also uses the road doesn’t make much sense. Excluding the record owner would turn the case into one of possession rather use and that would make prescriptive easements impossible if the record owner continued using the land even if the owner did not exclude or interfere with the use of the easement by the prescriptive easement claimant. Despite that traditional approach, the Texas …

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Is land use presumptively permissive or nonpermissive in the case of prescriptive easements?

/ Adverse Possession, Easements, Servitudes

The general common law of trespass in most states presumes that entry to land of another is nonpermissive. That presumption can be overcome by expressions of permission or by social conventions, such as opening up a shop or knocking on someone’s front door to lobby them to support a political candidate. Some states have an exception for undeveloped forest land where nonowners can hunt unless the landowner has posted “no hunting” signs. This presumption that entry is nonpermissive is a staple of adverse possession law. Occupation of the property of another is presumed to be nonpermissive unless facts can be shown otherwise. The same has historically been true for prescriptive easements. Use of another’s land without permission is presumptively a trespass. However, in recent years, some courts have balked at granting prescriptive easements for uses other than travel over a right of way. They have not wanted neighborly gestures to …

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Easements implied from prior use recognized in California

/ Easements

The California Supreme Court accepted the doctrine of easements implied from prior use in Romero v. Shih, 541 P.3d 1112 (Cal. 2024), and it also clarified the meaning of the “exclusivity” requirement that some states use for prescriptive easements. Here an owner of two lots built a driveway that intruded on one of the lots. He sold the lot that suffered the encroachment with the buyer having knowledge of the encroachment. They intended to move the border but never got around to it. When the properties changed hands, the question arose whether the encroachment was a continuing trespass. The court held that the doctrine of easements implied from prior use applied, in this case, an easement reserved by the grantor rather than one given to the grantee (an easement by grant). In such cases, the parties’ mistake in setting the borders results in an effective reformation of the deeds to …

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Prescriptive easements do not actually require “exclusive” use no matter what courts say

/ Adverse Possession, Easements, Servitudes

Many courts say that prescriptive easements can only be acquired if the use is “exclusive” among other elements. This is a mechanical holdover from the requirements for adverse possession where courts simply keep the same requirements and substitute “use” for “possession.” But it make no sense for an easement to be “exclusive” since the dominant estate owner retains whatever rights of use are not inconsistent with the easement. It is simply not how easements work for them to be exclusive of the land owner. If the landowner cannot use the easement in any way then the owner has lost title to the property. Of course, one can write an express easement to limit the freedoms of the land owner, but in general, the way easements work is to grant a limited use to another while the land owner retains all rights not inconsistent with that use. In effect, an easement …

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Vermont Supreme Court denies reserved easements implied from prior use unless they are strictly necessary

/ Easements, Real Estate Transactions, Servitudes

While owners can generally get an easement by necessity to obtain access to landlocked land over remaining lands of the grantor, most states also recognize easements implied from visible, continuous prior use before the parcels were separated if the access is helpful (“reasonably necessary”) to the dominant estate. The prior use doctrine rests on the right to reform a deed because of mutual mistake. Such easements can arise by grant (giving an easement to the grantee/buyer) or reserved by the grantor/seller. However, the Vermont Supreme Court has held in the case of Greenfield v. Luce, 2022 WL 16848175, 2022 Vt. Unpub. LEXIS 97 (Vt. Nov. 10, 2022) that it will find an easement to be reserved unless it is necessary to access a landlocked estate. Most states have a stricter test for easements by reservation because they “derogate from the grant” and the buyer should not be surprised to find that …

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Scope of easement to operate a neighboring golf course determines whether intrusion of dozens of golf balls a year to victims’ property constitutes a trespass

/ Condominiums and Homeowners Associations, Easements, Servitudes, Trespass

A couple that bought a home next to a golf course sued the golf course for trespass because of all the golf balls that landed on their property. Although the golf course attempted to take remedial measures to stop golf balls from landing on the couple’s property, roughly 90 balls would land on the property each year, a dozen of which struck the house. The couple won in the trial court which awarded them $100,000 in compensatory damages for property damage and $3.4 million in emotional distress damages. The trial court also issued an injunction preventing play on the 15th hole under the golf club implemented additional remedial measures, such as reconfiguring the hole or installing netting. The Supreme Judicial Court of the Commonwealth of Massachusetts reversed and remanded the case to the trial court for more proceedings. Tenczar v. Indian Pond Country Club, Inc., 2022 WL 17813649, — N.E.3d — (Mass. 2022). …

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No prescriptive easements for light and air

/ Easements, Nuisance, Servitudes

Re-affirming a longstanding common law rule, a Maryland court has held that land use that interferes with a neighbor’s desire for unobstructed light and air neither constitutes a nuisance nor can the neighbor acquire such rights by prescription. Gestamp Wind N. Am., Inc. v. All. Coal, LLC, 2021 WL 3612747 (Md. Ct. Spec. App. 2021). A neighbor whose wind turbines were losing effectiveness because the neighbor was piling coal remains on its property could not get a remedy for the change in wind to run those turbines since the neighbor had a right to use its property without regard to any interference with the neighbor’s light and air.

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