Easements

Parts I through VI concerned ownership: the acquisition of possessory estates, their duration, their futurity, and their division among persons who hold the same estate in the same land. Part VII concerns the opposite arrangement. A servitude is a burden upon one person's land for the benefit of another person or another person's land, and its defining characteristic is that the holder of the benefit owns no estate in the burdened parcel, has no right to possess it, and cannot exclude the owner from it. The easement is the foundational servitude and by a considerable margin the most common: no meaningful quantity of American land is developed, served with utilities, reached by a driveway, drained, or conserved without one. This chapter states what an easement is, how it is created, how far it extends, who may use and transfer it, and how it ends.

1. An easement is a nonpossessory interest in the land of another. It confers a right of use, not a right of possession. The servient owner retains possession and may make any use of the burdened land that does not unreasonably interfere with the easement. Restatement (Third) of Property: Servitudes § 1.2 (2000).
2. The easement is an interest in land; the license is not. An easement is within the Statute of Frauds, survives the death of its holder and the transfer of the land, and is enforceable against successors. A license is revocable permission, personal to the licensee, and creates no property interest — except where estoppel intervenes.
3. Appurtenant easements attach to land; easements in gross attach to a person. An appurtenant easement benefits a dominant estate and passes automatically with it whether or not mentioned in the deed. An easement in gross benefits its holder without reference to any dominant parcel.
4. The law presumes appurtenance. Where the instrument is ambiguous and the benefit is capable of attaching to an identifiable parcel, the easement is construed as appurtenant. Restatement (Third) § 4.5. The presumption favors marketability and avoids orphaned benefits.
5. Negative easements were confined at common law to four categories. Light, air, subjacent or lateral support, and the flow of an artificial stream. English law refused to expand the list, and the resulting gap was filled in equity by the restrictive covenant. The Restatement (Third) abandons the closed list and treats negative servitudes as ordinary servitudes.
6. Express creation requires a writing satisfying the Statute of Frauds. Grant and reservation are the two express modes; the reservation retains a benefit in the grantor, and at common law an easement could not be reserved in favor of a stranger to the deed — a rule now widely rejected. See Willard v. First Church of Christ, Scientist, 498 P.2d 987 (Cal. 1972).
7. Implication from prior use requires unity of ownership, apparent and continuous use, and reasonable necessity. The quasi-easement must have existed at severance and must have been apparent to a reasonable inspection. Van Sandt v. Royster, 83 P.2d 698 (Kan. 1938).
8. Easements by necessity require severance and strict necessity, not mere convenience. The necessity must arise at the moment of severance and must ordinarily be absolute — landlocked, without a legal right of access. The easement endures only so long as the necessity does.
9. Prescription mirrors adverse possession without exclusivity. Use that is open and notorious, adverse or under claim of right, and continuous for the statutory period ripens into an easement; the claimant need not exclude the owner, since the use is by definition shared.
10. Scope is fixed by the manner of creation and by the reasonable development of the dominant estate. Normal evolution in the use of the dominant land is within the scope; a change in kind, or an extension of the benefit to land not part of the dominant estate, is a surcharge and is enjoinable. Brown v. Voss, 715 P.2d 514 (Wash. 1986).
11. The servient owner may relocate an easement under the Restatement, but not at common law. Restatement (Third) § 4.8(3) permits unilateral relocation at the servient owner's expense where the change does not lessen the utility, increase the burden, or frustrate the purpose of the easement. M.P.M. Builders, LLC v. Dwyer, 809 N.E.2d 1053 (Mass. 2004), adopts it; Lewis v. Young, 705 N.E.2d 649 (N.Y. 1998), reaches a similar result; other states adhere to the fixed-location rule.
12. Appurtenant benefits are freely transferable; easements in gross are transferable if commercial. The older rule made all easements in gross inalienable; the modern rule and the Restatement make commercial easements in gross — utility, pipeline, railroad, conservation — freely transferable, and personal easements in gross transferable only if the parties so intended.
13. Apportionment of an easement in gross is limited by the one-stock rule. An exclusive easement in gross may be divided; a nonexclusive one may be apportioned only consistently with the parties' intent, and the divided holders must use it as one stock. Miller v. Lutheran Conference & Camp Ass'n, 200 A. 646 (Pa. 1938).
14. Termination requires more than nonuse. An easement ends by release, merger, expiration of its stated term, abandonment (nonuse plus intent manifested by conduct), prescription by the servient owner, estoppel, condemnation, destruction of the servient structure, or cessation of the necessity that created it. Mere nonuse, however prolonged, does not extinguish an easement.
15. Recording protects the easement against subsequent purchasers; notice supplies the deficiency. An unrecorded easement is vulnerable under the recording acts, but a purchaser with actual, constructive, or inquiry notice — a visible driveway, a utility pole line, a worn path — takes subject to it.

On completing this chapter the reader should be able to:

1. Define the easement and distinguish it from the license, the profit à prendre, the lease, the real covenant, and the equitable servitude.
2. Identify the dominant and servient estates and explain the consequences of each classification.
3. Classify an easement as appurtenant or in gross, affirmative or negative, exclusive or nonexclusive, and state why each classification matters.
4. Trace the historical development of easements from medieval English land law through Gale and Washburn to the Restatement (Third).
5. Draft and analyze express easements created by grant and by reservation, including reservations in favor of third parties.
6. Apply the elements of an easement implied from prior use and distinguish them from those of an easement by necessity.
7. Apply the elements of prescriptive easements and explain how they differ from adverse possession.
8. Recognize easements by estoppel and by dedication and state the circumstances producing each.
9. Determine the permissible scope of an easement and identify surcharge and misuse.
10. State the competing rules governing relocation of an easement and apply the Restatement standard.
11. Allocate maintenance and repair obligations between dominant and servient owners.
12. Determine the transferability, divisibility, and apportionability of appurtenant easements and easements in gross.
13. Identify each mode of termination and explain why nonuse alone is insufficient.
14. Examine title for easements and advise on recording, notice, and title insurance consequences.

The rules stated in this chapter rest upon the following primary sources. Jurisdiction-specific statutes are cited as representative; the governing law of the situs controls.

• Restatement positions. Restatement (Third) of Property: Servitudes §§ 1.1–1.6 (definitions), §§ 2.1–2.18 (creation, including §§ 2.11–2.12 (prescription), § 2.10 (estoppel), § 2.12 (necessity), § 2.15 (implication from prior use)), §§ 4.1–4.13 (interpretation, scope, relocation, and maintenance, including § 4.8 (location) and § 4.13 (repair)), §§ 5.1–5.9 (succession and apportionment), and §§ 7.1–7.15 (modification and termination) (Am. L. Inst. 2000); Restatement (First) of Property §§ 450–564 (1944) (the classical law of easements, profits, and licenses).
• Historical English authorities and statutes. Statute of Frauds, 29 Car. 2, c. 3, §§ 1–3 (1677); Prescription Act, 1832, 2 & 3 Will. 4, c. 71; Law of Property Act, 1925, 15 & 16 Geo. 5, c. 20, § 62 (general words); Quia Emptores, 18 Edw. 1, c. 1 (1290) (free alienability, ancestral to the running of servitudes).
• Representative state statutes. Cal. Civ. Code §§ 801–813 (servitudes attaching to land; easements in gross; recorded notices of consent), § 1104 (implied transfer of easements), § 811 (extinguishment); N.Y. Real Prop. Law §§ 240, 291, 335-a; Tex. Prop. Code §§ 5.021, 13.001; Fla. Stat. §§ 704.01 (implied and statutory ways of necessity), 704.06 (conservation easements); Mass. Gen. Laws ch. 187, §§ 1–5; Wash. Rev. Code § 8.24.010 (private condemnation of a way of necessity); N.C. Gen. Stat. §§ 136-96 (abandonment of public easements), 47-27 (recording of conservation and utility easements).
• Uniform legislation. Uniform Conservation Easement Act §§ 1–6 (Unif. L. Comm'n 1981, amended 2007) (validating perpetual easements in gross held by governmental bodies and charitable organizations); Uniform Easement Relocation Act (Unif. L. Comm'n 2020) (codifying a servient-owner relocation procedure); Model Marketable Title Act §§ 2–4 (extinguishment of ancient interests, with express easement savings clauses).
• Recording and title statutes. State recording acts (race, notice, and race-notice) as applied to easements; marketable-title acts, e.g., Fla. Stat. §§ 712.01–712.12; Mich. Comp. Laws §§ 565.101–565.109; Conn. Gen. Stat. §§ 47-33b to 47-33l.
• Federal law. 26 U.S.C. § 170(h) (qualified conservation contributions, driving the modern volume of conservation easements in gross); 43 U.S.C. § 932 (repealed 1976) (R.S. 2477 public highway rights-of-way across federal land, preserved as to pre-1976 grants).
• Leading judicial decisions. Willard v. First Church of Christ, Scientist, 498 P.2d 987 (Cal. 1972) (reservation to a stranger); Van Sandt v. Royster, 83 P.2d 698 (Kan. 1938) (implication from prior use); Othen v. Rosier, 226 S.W.2d 622 (Tex. 1950) (necessity and prescription); Schwab v. Timmons, 589 N.W.2d 1 (Wis. 1999) (necessity requires severance); Holbrook v. Taylor, 532 S.W.2d 763 (Ky. 1976) (easement by estoppel); Shepard v. Purvine, 248 P.2d 352 (Or. 1952) (irrevocable license); Brown v. Voss, 715 P.2d 514 (Wash. 1986) (misuse by extension to nondominant land); Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996) (scope, abandonment, and rails-to-trails); Miller v. Lutheran Conference & Camp Ass'n, 200 A. 646 (Pa. 1938) (divisibility and apportionment); M.P.M. Builders, LLC v. Dwyer, 809 N.E.2d 1053 (Mass. 2004), and Lewis v. Young, 705 N.E.2d 649 (N.Y. 1998) (relocation); Marvin M. Brandt Revocable Trust v. United States, 572 U.S. 93 (2014) (railroad rights-of-way as easements and their termination by abandonment).

Secondary authority is used here only to organize and explain the primary sources.

• 2 William Blackstone, Commentaries on the Laws of England *32–*35 (1766) — incorporeal hereditaments, ways, and commons.
• Edward Coke, The First Part of the Institutes of the Laws of England (Coke on Littleton) §§ 122–123, *4b–*5a (1628) — appendant and appurtenant rights.
• Charles James Gale, A Treatise on the Law of Easements (1839; 20th ed. 2020, Gale on Easements) — the classical definition and the closed category of negative easements.
• Emory Washburn, A Treatise on the American Law of Easements and Servitudes (1863; 4th ed. 1885) — the American reception and the doctrine of implication.
• 3 James Kent, Commentaries on American Law *419–*452 (1828) — incorporeal rights and ways of necessity.
• 2 Frederick Pollock & F. W. Maitland, The History of English Law Before the Time of Edward I 124–150 (2d ed. 1898) — services, commons, and the medieval antecedents of the servitude.
• A. W. B. Simpson, A History of the Land Law 106–120, 256–260 (2d ed. 1986).
• J. H. Baker, An Introduction to English Legal History (5th ed. 2019), ch. 15 (the assize of nuisance and the protection of incorporeal rights).
• 4 Powell on Real Property chs. 34–34A (Michael Allan Wolf ed.) (easements and licenses).
• 2 American Law of Property §§ 8.1–8.116 (A. James Casner ed. 1952).
• Susan F. French, Highlights of the New Restatement (Third) of Property: Servitudes, 35 Real Prop. Prob. & Tr. J. 225 (2000).
• Uriel Reichman, Toward a Unified Concept of Servitudes, 55 S. Cal. L. Rev. 1177 (1982).
• Stewart E. Sterk, Freedom from Freedom of Contract: The Enduring Value of Servitude Restrictions, 70 Iowa L. Rev. 615 (1985).

An easement is a nonpossessory interest in land that entitles its holder to make a limited use of, or to prevent a specified use of, land in the possession of another. The Restatement (Third) of Property: Servitudes § 1.2 states it in those functional terms, and its two clauses correspond to the ancient division between affirmative and negative easements: the affirmative easement entitles the holder to do something on the servient land that would otherwise be a trespass; the negative easement entitles the holder to prevent the servient owner from doing something on his own land that would otherwise be lawful.

Two features of the definition carry nearly all of the doctrinal consequences. The first is that the interest is nonpossessory. The easement holder has no seisin, no right of exclusive occupation, and no action for ejectment; his remedy against interference is an injunction or damages for interference with an incorporeal right, not a possessory action. Correlatively, the servient owner remains the owner and possessor and may use the burdened land for every purpose that does not unreasonably interfere with the easement. A right-of-way over a driveway does not prevent the servient owner from driving on the same driveway, planting beside it, or running a utility line beneath it.

The second is that the interest is in land. That characterization brings the easement within the Statute of Frauds, subjects it to the recording acts, makes it descendible and, with qualifications examined in Part V, devisable and assignable, and — most importantly — makes it enforceable by and against successors to the estates it benefits and burdens. It is this last consequence that distinguishes servitudes from contracts and that made their development so cautious: an easement is a private arrangement that binds strangers who never agreed to it, and the law's requirements of writing, notice, recording, and definite scope are the safeguards it exacts in return.

The easement should be located within the larger family. A profit à prendre, treated in Chapter 22, is an easement-like right to enter and remove some part of the soil or its produce — timber, minerals, game, water — and is governed by substantially the same rules of creation and termination. A license is bare permission, revocable at will and creating no interest in land. A real covenant is a promise respecting land enforceable at law by and against successors, and an equitable servitude the same promise enforceable in equity; both are treated in later chapters. A lease conveys possession for a term and is therefore a possessory estate, not a servitude. The Restatement (Third) collects all of these under the single heading of servitudes and applies a unified set of rules to their creation, interpretation, and termination — the most consequential doctrinal reorganization in this field in a century.

Medieval English law had no unified law of servitudes. It had, instead, a set of particular rights that we would now describe as easements, developed piecemeal and defended by particular writs. Rights of common — of pasture, of estovers, of turbary, of piscary — were the most economically important and were annexed to holdings within the manorial system. Ways, watercourses, and rights of support existed and were protected by the assize of nuisance, which lay where a neighbour's act on his own land injured the plaintiff's freehold. Pollock and Maitland emphasize that these were treated as incorporeal hereditaments — things that could be held, inherited, and conveyed, though they had no physical existence — and Blackstone reproduces the classification without substantial change in 1766.

Two structural features of the medieval law persisted. The first is the requirement of a deed. Because an incorporeal hereditament could not be delivered by livery of seisin, it could be conveyed only by deed: a grant, in the technical sense, as distinguished from a feoffment. The maxim that an incorporeal hereditament lies in grant and not in livery survived into the Statute of Frauds and thence into the modern rule that an easement must be created in writing. The second is prescription. Because the common law reasoned that long enjoyment presupposed a lawful origin, it indulged the fiction of a lost modern grant: enjoyment for the period of legal memory, and later for twenty years, was evidence of a grant that had been made and lost. The Prescription Act, 1832, replaced the fiction with fixed statutory periods, and American law replaced it in turn with periods borrowed from the statute of limitations for ejectment.

The nineteenth century produced the treatises that gave the subject its modern shape. Gale's Treatise on the Law of Easements (1839) supplied the definition quoted at the head of this chapter and, with it, the doctrinal insistence that an easement exists in respect of two tenements — a formulation that made appurtenance the paradigm and the easement in gross the anomaly. Washburn's American Law of Easements and Servitudes (1863) transplanted the subject and adapted it to American conditions, where vast unregistered tracts, informal severances, and rapid settlement generated implied and prescriptive easements on a scale English law had not seen.

Two divergences between English and American law emerged in this period and remain. The first concerns negative easements. English law confined them to four categories — light, air, support, and the flow of an artificial watercourse — and refused to recognize new ones, largely because a negative easement acquired by prescription would penalize a landowner for the innocent act of not building. American law inherited the restriction, generally rejected the acquisition of negative easements by prescription altogether, and channelled the demand for negative land-use control into the restrictive covenant after Tulk v. Moxhay (1848). The second concerns easements in gross. English law scarcely recognized them; American law, faced with railroads, telegraphs, pipelines, and electric utilities, recognized them freely and made the commercial easement in gross fully alienable. The modern conservation easement, validated by the Uniform Conservation Easement Act and driven by 26 U.S.C. § 170(h), is a perpetual negative easement in gross — a creature that classical English law would have thought impossible on both counts.

The Restatement (Third) of Property: Servitudes (2000), under Reporter Susan French, completed the reorganization. It abolished the closed list of negative easements, discarded the requirement of horizontal privity for covenants, replaced the touch-and-concern test with a policy analysis of validity, unified the rules of creation and termination across easements, profits, and covenants, and introduced the servient owner's power of relocation. Its provisions are cited throughout this chapter, and where they depart from settled state law that departure is identified.

The servient estate is the parcel burdened by the easement; the dominant estate is the parcel benefited. The terminology descends from the Roman praedial servitude and carries a substantive point: where a dominant estate exists, the benefit is annexed to it, runs with it, and cannot be severed from it. Where no dominant estate exists — a utility line, a billboard right, a conservation easement held by a land trust — the easement is in gross and the benefit is held personally.

Identification of the dominant estate is a question of construction, and it matters in several concrete ways. The benefit of an appurtenant easement passes with a conveyance of the dominant estate even if the deed does not mention it, and cannot be conveyed apart from the dominant estate. Its scope is measured by the needs of the dominant estate, so that use of the easement to serve other land is a surcharge even where the additional burden is trivial. If the dominant estate is subdivided, each lot ordinarily takes the benefit, subject to the limitation that the total burden may not be unreasonably increased. And an easement appurtenant is extinguished by merger when the dominant and servient estates come into common ownership, for a person cannot have an easement over his own land.

The servient owner's position deserves symmetrical statement, because it is routinely misunderstood. The servient owner retains fee ownership of the strip subject to the easement, may use it in any manner consistent with the easement, may grant additional easements over the same strip so long as the earlier holder is not unreasonably interfered with, is entitled to have the easement kept within its granted scope, and — under the Restatement and a growing minority of decisions — may relocate it at his own expense within the limits stated in § 21.14. What the servient owner may not do is unreasonably interfere with the easement's exercise: obstruct a way, gate it without providing a means of passage, or build over a utility corridor.

An easement appurtenant benefits its holder in the use of a particular parcel of land; an easement in gross benefits its holder personally, without reference to ownership of any parcel. The distinction is one of benefit only: every easement, appurtenant or in gross, burdens a servient estate.

Where the instrument does not say, the law supplies a presumption of appurtenance. Restatement (Third) § 4.5(2) provides that an ambiguous easement is appurtenant if the beneficiary owns land that the easement can serve, and the older cases reach the same result under the maxim that easements in gross are not favoured. The presumption serves marketability: an appurtenant benefit passes with a recorded chain of title and can be located by a title examiner, whereas a benefit in gross may end up held by an unlocatable heir of a nineteenth-century grantee, clouding title indefinitely. Where the instrument is explicit — 'to Smith, his heirs and assigns, whether or not he owns adjoining land' — the express designation controls.

The consequences of classification are practical. An appurtenant benefit is automatically transferred with the dominant estate and cannot be separated from it; a purported grant of the easement to a person who does not take the dominant land is ineffective. A benefit in gross is transferable only under the rules examined in § 21.18. An appurtenant easement is extinguished by merger of the two estates; an easement in gross is not, since there is no dominant estate to merge. The scope of an appurtenant easement is limited by the needs of the dominant parcel; the scope of an easement in gross is limited by its stated purpose.

Commercial easements in gross are of the first economic importance. Every electric, gas, water, sewer, telecommunications, and pipeline system in the United States rests on a network of easements in gross, as do railroad rights-of-way, billboard rights, and — increasingly — conservation easements held by land trusts and public agencies. Marvin M. Brandt Revocable Trust v. United States, 572 U.S. 93 (2014), holding that an 1875 Act railroad right-of-way was an easement that terminated on abandonment, illustrates both the durability and the fragility of such interests: durable across a century of transfers, fragile the moment the use ceases.

An affirmative easement entitles its holder to perform an act on the servient land: to pass over it, to lay and maintain a pipe beneath it, to discharge water onto it, to string a wire above it, to park upon it. The overwhelming majority of easements are affirmative, and the whole of the law of creation by implication, necessity, and prescription concerns them.

A negative easement entitles its holder to prevent the servient owner from doing something otherwise lawful on the servient land. English law recognized four: the right to light, the right to air, the right to subjacent and lateral support, and the right to the continued flow of an artificial watercourse. The list was closed, and the reason was prescription. If a landowner could acquire a right to light by twenty years' enjoyment of an unobstructed window, then a neighbour's mere inaction would ripen into a permanent restriction upon his land. English law tolerated that result for the four listed rights and refused to extend it; American law generally refused the prescriptive acquisition of negative easements altogether, which is why the American doctrine of ancient lights was rejected almost universally. See Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So. 2d 357 (Fla. Dist. Ct. App. 1959).

The consequence was a doctrinal gap. Landowners plainly wanted enforceable restrictions on neighbouring use — no trade, no building above a stated height, residential use only — and the closed category of negative easements could not supply them. Equity did, in Tulk v. Moxhay, 41 Eng. Rep. 1143 (Ch. 1848), which enforced a covenant against a purchaser with notice and thereby created the equitable servitude. The result was that Anglo-American law developed two parallel systems of negative land-use control with different requirements, different remedies, and different histories — precisely the fragmentation that the Restatement (Third) was drafted to end. Under the Restatement, a negative servitude is created like any other servitude and is not confined to enumerated categories; the conservation easement, statutorily validated in every state, is the most important modern instance.

An easement is exclusive when the holder is entitled to use the servient land to the exclusion of the servient owner and of others, and nonexclusive when the right is shared. Exclusivity is unusual and is never presumed; a grant of a right-of-way does not exclude the grantor from the way. Where the parties intend exclusivity they must say so, and where they do, the easement approaches — but does not become — a possessory estate. Exclusivity matters chiefly for divisibility: an exclusive easement in gross may be apportioned among successors, while a nonexclusive one may not be, save as § 21.19 explains.

An easement in gross is commercial when its purpose is economic benefit rather than personal enjoyment, and personal when the reverse. The distinction, which appears in Restatement (First) of Property § 489 and survives functionally in the Third, governs transferability: commercial easements in gross are freely transferable, and personal easements in gross are transferable only if the parties so intended. A pipeline easement is commercial; a right granted to a named neighbour to fish in a pond, without more, is personal. The classification is not always tidy — a hunting-club easement, a scout-camp easement, a conservation easement held by a nonprofit — and modern courts increasingly resolve transferability by intention rather than by category, which is the Restatement's approach in § 4.6.

A further distinction of practical rather than doctrinal importance separates the easement from the license coupled with an interest and from the irrevocable license by estoppel. Both are examined in § 21.12 in connection with easements by estoppel, since American courts have persistently used license terminology to describe what are, in substance, easements arising by operation of law.

The license is permission to enter land that would otherwise be a trespass. It is not an interest in land, need not be in writing, is revocable at the will of the licensor, is personal to the licensee and therefore neither assignable nor inheritable, and does not bind a purchaser of the land. A theatre ticket, a hunting permission, a contractor's right of access are all licenses. Two qualifications matter. A license coupled with an interest — permission to enter to remove chattels sold, or to exercise a profit — is irrevocable so long as the interest lasts. And a license on which the licensee has substantially relied by expenditure, with the licensor's knowledge, may become irrevocable by estoppel and, in most American jurisdictions, is then treated as an easement. Holbrook v. Taylor, 532 S.W.2d 763 (Ky. 1976).

The profit à prendre is the right to enter the land of another and sever and remove something that is part of the land or a product of it: timber, minerals, oil, gravel, crops, fish, game. It is an interest in land, is created and terminated substantially as an easement is, and differs from an easement chiefly in that the holder takes something away. Chapter 22 develops the profit in full.

The real covenant and the equitable servitude are promises respecting the use of land, enforceable against successors at law and in equity respectively. They differ from easements in origin — contract rather than conveyance — and in the elements required for their running: intent, notice, privity, and touch-and-concern, in various combinations. Functionally, the negative servitude and the equitable servitude occupy the same ground, which is why the Restatement (Third) merges them. Later chapters of Part VII develop the covenant and the servitude.

The lease conveys the right of possession for a term and is a possessory estate, not a servitude. The line is sometimes fine — a parking space, a billboard site, a rooftop antenna installation, a grain-elevator lease — and the test is whether the grantee has been given exclusive possession of a defined space or only a right of use. Classification carries consequences: leases attract the landlord–tenant regime, including habitability, holdover, and eviction rules, while easements do not.

The ordinary and preferred mode of creating an easement is an express grant in a deed or other instrument satisfying the Statute of Frauds: a writing, signed by the grantor, identifying the parties, describing the servient land, and stating the right conveyed. The instrument should be executed and recorded with the formalities required of a deed, since an easement is a conveyance of an interest in land, and in most states an unrecorded easement is subject to the recording act.

Drafting quality determines nearly all subsequent litigation. A well-drafted easement specifies (i) the dominant estate, if any, by legal description; (ii) the servient estate; (iii) the location of the easement, by metes and bounds or by reference to a recorded plat, rather than by a floating right 'over the grantor's land'; (iv) the purpose and permitted uses, with attention to whether they are exclusive; (v) the duration; (vi) responsibility for construction, maintenance, repair, and the allocation of cost among multiple users; (vii) insurance and indemnity; (viii) whether the benefit is appurtenant or in gross and whether it is assignable and apportionable; and (ix) relocation, amendment, and termination provisions. Each omission is a rule of construction waiting to be applied against the client.

Where the instrument is silent or ambiguous, the settled canons apply. The easement is construed to carry out the parties' intent as expressed in the instrument read in light of the circumstances at the time of the grant. Restatement (Third) § 4.1. A grant of a right-of-way without a stated width carries a width reasonably necessary for the purpose. An unlocated easement is fixed by the first reasonable use, or by agreement, or by the court. Ambiguities were traditionally construed against the grantor as the drafter, and in favour of the grantee, though the Restatement discards the mechanical preference in favour of the intent inquiry. A grant is construed to convey a fee in the strip only where the language plainly so provides; the presumption in most states is that a right-of-way conveys an easement rather than a fee, a presumption of considerable importance in railroad and highway corridors.

A grantor conveying part of his land may retain an easement over the part conveyed. This is a reservation, and it is the mirror image of the grant: the grantee's parcel becomes servient, the grantor's retained parcel dominant. An exception, strictly speaking, withholds from the conveyance a pre-existing interest rather than creating a new one, though modern courts treat the two terms as interchangeable in this context and look to substance.

The historically vexed question is whether a grantor may reserve an easement in favour of a third person — a stranger to the deed. The common-law rule said no, on the reasoning that a reservation operates by regrant from the grantee, and a deed cannot regrant to someone who is not a party. The rule produced conveyancing traps of no social utility and required the grantor to execute two instruments to achieve one result. Willard v. First Church of Christ, Scientist, 498 P.2d 987 (Cal. 1972), rejected it: a grantor who conveyed a lot 'subject to an easement for automobile parking during church hours for the benefit of the church' created an enforceable easement in the church, and the court held that the ancient rule would defeat the plain intent of the parties. Restatement (Third) § 2.6(2) adopts the modern position, and most states have followed, though a minority adhere to the older rule and cautious drafters still avoid the problem by a separate grant.

A related question is whether a reservation may create an easement in the grantor over land he has conveyed where the deed reserves only vaguely. It may not: the reservation must satisfy the Statute of Frauds and must describe the right with sufficient certainty. Where the deed is silent, the grantor must fall back on implication from prior use or necessity — and there the law is markedly less generous to a grantor claiming an implied reservation than to a grantee claiming an implied grant, because the grantor drafted the deed and could have provided for the right.

Where a single owner has used one portion of his land for the benefit of another portion, and then severs the two, the law may imply an easement continuing that use. Because a person cannot hold an easement over his own land, the pre-severance use is called a quasi-easement, the benefited portion the quasi-dominant tenement, and the burdened portion the quasi-servient tenement. The doctrine rests on presumed intent: the parties are taken to have contracted with reference to the condition of the property as they found it.

The elements, stated with minor variation across the jurisdictions and collected in Restatement (Third) § 2.12, are: (i) unity of ownership of the two portions before severance; (ii) a use of one portion for the benefit of the other existing at the time of severance; (iii) that the use was apparent — discoverable by a reasonable inspection, which includes underground pipes and drains whose presence is evidenced by visible fixtures; (iv) that the use was continuous rather than sporadic, a requirement satisfied by permanent installations even if intermittently operated; and (v) that the easement is reasonably necessary to the enjoyment of the benefited portion.

Van Sandt v. Royster, 83 P.2d 698 (Kan. 1938), is the standard illustration and demonstrates the apparency element at its limit. A common owner had installed a sewer lateral running beneath what became several lots to a city main; after severance, the downstream lot owner discovered the line when his basement flooded. The court held that an easement had been implied by reservation, and that the underground lateral was apparent because a reasonable inspection would have disclosed the existence of modern plumbing that had to drain somewhere. The case also states the standard distinction of degree: an implied grant to a grantee requires only reasonable necessity, while an implied reservation in favour of the grantor is scrutinized more strictly and in some states requires strict necessity, on the ground that the grantor controlled the language of his own deed.

The doctrine should be distinguished from statutory and common-law rules that transfer existing easements automatically. Cal. Civ. Code § 1104 provides that a transfer of real property passes all easements attached to it and creates in the grantee an easement to use other real property of the grantor for the benefit of the property conveyed, where the servitude was obvious and permanent at the time of transfer. In England, § 62 of the Law of Property Act, 1925, converts licenses and quasi-easements into easements on conveyance through 'general words' — a rule of considerable breadth and a trap for the unwary conveyancer, and one that American law has largely declined to adopt.

An easement by necessity arises where a conveyance severs a parcel from access to a public road, leaving it landlocked. The elements are two: (i) unity of ownership followed by severance, and (ii) necessity arising at the time of severance. Restatement (Third) § 2.15. Unlike implication from prior use, no prior use is required — the doctrine supplies access that never existed — but the necessity requirement is correspondingly stricter.

The doctrinal basis has long been contested. The older explanation is presumed intent: parties are not presumed to intend to render land useless, and the grant of a parcel carries by implication whatever is necessary to its enjoyment. The competing explanation is public policy: the law will not tolerate land rendered inaccessible and therefore unproductive. The choice is not academic. If the basis is intent, the necessity easement can be negated by contrary language in the deed and cannot arise where the severance was not by the parties' act. If the basis is policy, neither limitation holds. Most American courts state the intent rationale and apply it with a policy inflection, permitting express negation but resolving doubts in favour of access.

Necessity means strict necessity in most jurisdictions: the claimant must have no legal right of access, not merely no convenient one. A parcel reachable by a difficult, expensive, or seasonal route generally has no easement by necessity, and a parcel reachable by water has been held, in some states, not to be landlocked at all. A minority of states, and Restatement (Third) § 2.15, accept reasonable necessity where the circumstances indicate the parties so intended. Othen v. Rosier, 226 S.W.2d 622 (Tex. 1950), illustrates the strictness: the claimant failed on necessity because he could not prove that his parcel had been landlocked at the moment of the 1896 severance, and failed on prescription because his use of the roadway had been shared with the servient owner and was therefore permissive rather than adverse. Schwab v. Timmons, 589 N.W.2d 1 (Wis. 1999), refuses the easement where the landlocked condition resulted not from the severance but from the claimant's predecessors' own conveyances and from natural conditions.

The easement by necessity endures only so long as the necessity does; when the dominant owner acquires other access, the easement terminates by operation of law. Its location is ordinarily selected by the servient owner in the first instance, subject to the requirement of reasonable convenience to the dominant owner. Many states supplement the common law by statute, either codifying the way of necessity — Fla. Stat. § 704.01 — or providing a private condemnation procedure by which a landlocked owner may obtain a way on payment of compensation, e.g., Wash. Rev. Code § 8.24.010. The statutory way is not an easement by necessity but a compulsory purchase, and the distinction matters where the necessity did not arise from a severance at all.

Prescription creates an easement out of long-continued use. Its modern American form derives from the fiction of the lost modern grant, refashioned on the model of adverse possession and measured by the limitation period governing actions to recover land — commonly ten, fifteen, or twenty years. The elements are that the use be (i) open and notorious, (ii) adverse or under a claim of right rather than permissive, (iii) continuous and uninterrupted for the statutory period, and, in many states, (iv) exclusive in the limited sense that the claimant's use is not merely incidental to the public's.

The essential structural difference between prescription and adverse possession is exclusivity. Adverse possession requires that the claimant possess to the exclusion of the owner; prescription cannot, because an easement is by nature a shared and nonpossessory use. This is why the 'exclusivity' element in the prescription cases is either omitted or diluted, and why a claimant who does exclude the owner is likely to have acquired title by adverse possession rather than an easement.

Permission defeats prescription, and the allocation of the presumption on permission is the decisive question in most litigated cases. Jurisdictions divide. Some presume that an unexplained open use is adverse, casting on the owner the burden of showing permission; others presume permission, particularly as to unenclosed and undeveloped land, where neighbourly tolerance is the likely explanation. Othen v. Rosier applies the latter approach, and several states have enacted statutes creating a conclusive or rebuttable presumption of permission for recreational use of open land, together with recording procedures — Cal. Civ. Code § 813 — by which an owner may post or record a notice of consent and thereby prevent any prescriptive right from arising.

Tacking is permitted: successive users in privity may add their periods of use. Interruption by the owner — physically blocking the way, or bringing an action — restarts the period. Public prescription, by which the general public acquires a right of way by long use, is recognized in some states and rejected in others in favour of implied dedication. And, as noted in § 21.5, American courts almost uniformly refuse to permit the acquisition of negative easements by prescription, since the servient owner's inaction gives him nothing to interrupt.

An easement by estoppel — often described as an irrevocable license — arises where a landowner permits another to use his land under circumstances in which the user reasonably expects the permission to continue, the user makes substantial expenditures in reliance, and the landowner knows of and acquiesces in the reliance. Revocation in those circumstances would be unconscionable, and equity therefore makes the license irrevocable for so long as the nature of the use requires. Restatement (Third) § 2.10.

Holbrook v. Taylor, 532 S.W.2d 763 (Ky. 1976), is the leading case: the Taylors used a haul road across the Holbrooks' land with permission, built a residence costing $25,000 in reliance on continued access, improved and maintained the road, and were held entitled to an easement when the Holbrooks sought to close it. Shepard v. Purvine, 248 P.2d 352 (Or. 1952), reaches the same result on an oral permission to lay a water line between neighbours who were close friends, the court observing that a demand for a formal writing between such parties would have been an affront. The measure of the estoppel is the reliance: the easement lasts as long as necessary to prevent injustice, which for a residence access road is ordinarily perpetual.

Two limits deserve statement. First, the doctrine requires expenditure or its equivalent; mere use, however long, produces prescription or nothing. Second, some states — Texas prominent among them — apply the doctrine narrowly and insist that a representation have been made by the servient owner to the dominant owner at the time of the conveyance, refusing to build an easement out of neighbourly acquiescence alone.

Dedication transfers an easement, or occasionally a fee, to the public. Express or statutory dedication is accomplished by the recording of a subdivision plat showing streets, parks, and ways, followed by acceptance by the municipality; the offer is generally irrevocable once lots are sold by reference to the plat, and purchasers acquire private easements in the platted ways independent of public acceptance. Implied or common-law dedication arises from the owner's manifested intent to devote land to public use, coupled with public acceptance by use or by maintenance. Acceptance may be formal, by resolution or by the taking over of maintenance, or informal, by general public use. Vacation and abandonment of dedicated ways are governed by statute in most states, e.g., N.C. Gen. Stat. § 136-96.

The scope of an easement is the range of uses it permits. Where the easement was created expressly, scope is a question of construction of the instrument in light of the circumstances at its creation. Where it arose by implication, scope is measured by the prior use from which it was implied. Where it arose by necessity, scope is measured by the necessity. Where it arose by prescription, scope is measured by the adverse use during the prescriptive period — a narrower measure than the others, since the servient owner acquiesced only in what actually occurred.

The governing principle for expressly created easements is that the parties are presumed to have contemplated the normal development of the dominant estate. Restatement (Third) § 4.10. An access easement granted in 1910 to serve a farmhouse may be used by the automobiles of the residence that replaced it; a way granted for a single dwelling may serve the somewhat larger dwelling built later; a utility easement granted for telegraph lines may be used for telephone and, in many decisions, for fibre-optic cable, on the reasoning that the change is one of technology and not of kind. What the principle does not license is a change in the character of the dominant use that materially increases the burden: converting a residential access easement into the service road for a commercial subdivision, or using a farm road for heavy quarry traffic, exceeds the grant.

Subdivision of the dominant estate presents the recurring problem. The general rule is that each parcel resulting from a subdivision takes the benefit of the appurtenant easement, since the benefit attaches to every part of the dominant land. The limitation is that the aggregate burden may not be unreasonably increased; where subdivision would multiply the traffic on a narrow rural way many times over, courts have limited or enjoined the increased use. The inquiry is one of degree and turns on the width and construction of the way, the manner of its creation, and the foreseeability of development.

Use of the easement to serve land other than the dominant estate is a distinct question, and the traditional answer is categorical: it is a misuse regardless of whether the additional burden is measurable. Brown v. Voss, 715 P.2d 514 (Wash. 1986), states the rule and then declines to enforce it by injunction: the plaintiff's easement served parcel B, the defendant had extended his use to serve a residence straddling parcels B and C, and the court held that although the extension was a misuse, the trial court had not abused its discretion in denying an injunction where the plaintiffs suffered no appreciable harm and the defendant had spent $11,000 in reliance. The case is therefore cited for two propositions at once — that use for nondominant land is a surcharge, and that the remedy is equitable and discretionary. Restatement (Third) § 4.11 retains the rule and § 8.3 confirms the discretionary character of injunctive relief.

Where an express easement fixes a location, that location controls. Where it does not, the location is fixed by the parties' subsequent conduct — ordinarily the first reasonable use — or by agreement, or, failing both, by a court exercising the power to select a location reasonably convenient to the dominant owner and least burdensome to the servient owner. Once fixed, the location of an easement was at common law immutable: neither party could change it without the other's consent, however trivial the inconvenience of the existing route or however great the servient owner's need.

The Restatement (Third) departs. Section 4.8(3) provides that, unless expressly denied by the terms of the servitude, the servient owner is entitled to make reasonable changes in the location or dimensions of an easement, at his own expense, to permit normal use or development of the servient estate, but only if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the easement holder, or (c) frustrate the purpose for which the easement was created. The rationale is efficiency: the fixed-location rule confers on the dominant owner a veto with no relation to the value of his interest, permitting extraction of holdout rents wholly disproportionate to any harm.

The reception has been mixed and the split is live. M.P.M. Builders, LLC v. Dwyer, 809 N.E.2d 1053 (Mass. 2004), adopts § 4.8(3) expressly, with the safeguard that the servient owner must seek a judicial declaration before relocating. Lewis v. Young, 705 N.E.2d 649 (N.Y. 1998), reaches a comparable result by construction, holding that an undefined right-of-way may be relocated by the servient owner so long as access is not impaired. Other courts have refused, insisting that a fixed easement is a property right that cannot be altered without consent and that the Restatement rule invites litigation. The Uniform Easement Relocation Act (2020) supplies a statutory middle course, permitting relocation only by court order on defined findings, with the servient owner bearing all costs; it has been enacted in a growing number of states, and a drafter who wants certainty should address relocation expressly in the instrument.

In the absence of agreement, the duty to maintain and repair an easement rests on the dominant owner, who holds the benefit and whose use creates the wear. Restatement (Third) § 4.13. The dominant owner has, correlatively, a secondary easement — the right to enter the servient land to perform the maintenance the primary easement requires, exercised so as to cause the least damage consistent with the work. He may also make improvements reasonably necessary to the enjoyment of the easement: grading a way, gravelling or paving it, installing a culvert, clearing vegetation. He may not improve it in a manner that materially increases the burden.

The servient owner has no duty to repair unless he has assumed one or unless he uses the easement himself. Where both parties use it, the modern rule and § 4.13(3) apportion the cost of maintenance among all who use the improvement, in proportion to their use, and a party who bears more than his share may recover contribution. Where multiple dominant owners share a way — the common case of a subdivision access easement or a shared driveway — the same rule applies among them, and well-drafted instruments substitute an express cost-sharing formula and a mechanism for decision.

The servient owner's obligation is negative: he must not unreasonably interfere. Gating a way is the recurring dispute; the general rule permits a gate where necessary to the servient owner's use — livestock control is the classic case — provided it does not unreasonably impede the dominant owner's passage, and prohibits a locked gate unless keys are furnished. Obstructing a way with parked vehicles, building over a utility corridor, altering grade so as to divert drainage onto the easement, and planting in a manner that narrows the travelled way have all been enjoined.

The dominant owner's rights are: to use the easement for its stated or implied purpose; to enter to maintain, repair, and improve; to protect the easement against interference by the servient owner or by third parties; and to transfer the benefit in accordance with the rules stated in Part V. His obligations are to confine the use to the granted scope, to avoid unnecessary damage to the servient estate, and, absent agreement, to bear the cost of maintenance.

The servient owner's rights are: to possess and use the burdened land in every manner not unreasonably interfering with the easement; to grant additional easements and to convey the fee subject to the easement; to insist that the easement be kept within its scope; to relocate, where the jurisdiction permits; and to be free of unnecessary damage. His obligations are to refrain from interference and, in the ordinary case, nothing more.

Remedies are equitable and legal. An injunction lies against interference by the servient owner and against surcharge by the dominant owner, subject to the balancing that Brown v. Voss illustrates and that Restatement § 8.3 endorses; where the harm is slight and the hardship of an injunction great, damages may be substituted. Damages for interference are measured by the diminution in the value of the dominant estate or by the cost of restoring access, and consequential damages are recoverable where foreseeable. A declaratory judgment fixing scope or location is the preferred remedy for boundary and width disputes and is required, in Massachusetts, before a servient owner may relocate. Trespass lies against a third party who obstructs, and a quiet-title action against one who denies the easement's existence.

The burden of an easement runs with the servient estate: a purchaser of the servient land takes subject to the easement if it is recorded or if he has actual, constructive, or inquiry notice. This is the whole practical importance of the servitude concept, and the recording acts are the mechanism by which it is administered.

The benefit of an appurtenant easement runs with the dominant estate automatically. A conveyance of the dominant land carries the easement whether or not the deed mentions it; a purported conveyance of the easement apart from the dominant land is ineffective; and the benefit cannot be retained by a grantor who conveys the dominant parcel. The rule is one of the strongest in the field and its principal practical consequence is that title examiners must search the chain of the dominant estate as well as the servient.

The transferability of an easement in gross is governed by the commercial–personal distinction. Commercial easements in gross are freely transferable, a rule that the American law of utilities and railroads required and that the Restatement (First) § 489 stated. Personal easements in gross were traditionally inalienable, on the ground that the benefit was granted to a particular person and the servient owner should not be exposed to an unknown successor. Restatement (Third) § 4.6 reformulates the whole subject in terms of intention: a servitude benefit in gross is transferable unless the terms of the servitude provide otherwise or the benefit was personal to the holder. Conservation easements are made transferable, and their holders restricted to qualified organizations, by the Uniform Conservation Easement Act and by state analogues.

Apportionment asks whether the benefit of an easement may be divided among several holders. For appurtenant easements the answer follows the subdivision rule of § 21.14: each parcel of a subdivided dominant estate takes the benefit, subject to the limit that the total burden not be unreasonably increased.

For easements in gross the classical rule is the 'one stock' doctrine of Miller v. Lutheran Conference & Camp Ass'n, 200 A. 646 (Pa. 1938). Frank Miller held boating, bathing, and fishing rights in a lake — easements in gross — and purported to license the Lutheran Conference to exercise them commercially. The court held that the rights were assignable because commercial, but that they could not be divided so as to be exercised independently by multiple holders: co-owners of an easement in gross must use it as 'one stock,' by agreement, lest the servient estate be subjected to a burden multiplied at the will of the holder. The doctrine remains the majority rule for nonexclusive easements in gross.

An exclusive easement in gross is divisible, because the servient owner has already parted with all use of the burdened area and can suffer no additional burden from a division of the benefit. This is why utility easements are usually drafted as exclusive: it permits the utility to apportion the corridor to a successor or to a co-locating carrier without the servient owner's consent. Restatement (Third) § 5.9 restates the position, permitting apportionment unless contrary to the terms of the servitude or unreasonably increasing the burden.

Easements are durable, and the law extinguishes them only on defined grounds. Restatement (Third) §§ 7.1–7.15 collects them; the traditional catalogue is as follows.

• Release. A written release from the dominant owner to the servient owner, satisfying the Statute of Frauds and recorded. The cleanest and least litigated mode.
• Expiration. By the terms of the instrument: a stated term, a stated event, or a determinable limitation.
• Merger. Where the dominant and servient estates come into the same ownership in the same quality of estate, the easement is extinguished and does not revive on a later severance — a trap of the first order, since a subsequent conveyance must expressly recreate the easement.
• Abandonment. Nonuse coupled with conduct manifesting an intent never to use the easement again: removing the tracks and trestles of a railroad, building a permanent structure across one's own access way, filing a formal disclaimer. Nonuse alone, however prolonged, is not abandonment. Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996), and Marvin M. Brandt Revocable Trust v. United States, 572 U.S. 93 (2014), both turn on abandonment of railroad easements and on what the servient owner receives when the burden ends.
• Prescription by the servient owner. Where the servient owner obstructs the easement openly, notoriously, adversely, and continuously for the statutory period, the easement is extinguished. This is the mirror of prescriptive creation and requires actual obstruction, not mere disuse by the dominant owner.
• Estoppel. Where the dominant owner represents that he will not use the easement and the servient owner substantially and reasonably relies — by building, for instance — the easement is extinguished to the extent of the reliance.
• Cessation of necessity. An easement by necessity ends when the necessity ends. Easements created by implication from prior use do not, since their basis is intent rather than necessity.
• Condemnation. A taking of the servient estate for a use inconsistent with the easement extinguishes it, and the dominant owner is constitutionally entitled to compensation for the value of the interest taken.
• Destruction of the servient tenement. An easement in a structure — a stairway, a party wall, an elevator right — ends with the involuntary destruction of the structure.
• Recording acts and marketable-title acts. An unrecorded easement may be cut off by a bona fide purchaser without notice; marketable-title acts may extinguish ancient interests not preserved of record, though nearly all such acts contain savings clauses for easements evidenced by visible use or held by public utilities.
• Changed conditions and equitable modification. Restatement (Third) § 7.10 permits modification or termination where changed circumstances make the servitude's purpose impossible to accomplish. Courts apply the doctrine sparingly to easements, more freely to covenants.

Two negative propositions deserve emphasis because they are the source of most error in practice. Nonuse does not terminate an easement; a right-of-way unused for eighty years remains enforceable unless abandonment or adverse obstruction is proved. And termination of the easement does not require action by the servient owner to be effective, but does require a recorded instrument or a decree if the record title is ever to be cleared.

Easements are governed by the recording acts like any other conveyance. An easement recorded in the servient chain is effective against all subsequent purchasers. An unrecorded easement is subordinated under a notice or race-notice statute to a subsequent bona fide purchaser for value without notice — but notice is broadly construed, and the visible physical facts of most easements supply it. A worn driveway, a line of poles, a manhole cover, a paved parking area, a graded utility corridor: each imposes a duty of inquiry, and a purchaser who fails to inquire is charged with what inquiry would have revealed.

Two recurring title problems deserve mention. The first is the easement recorded only in the dominant chain — a grant to a neighbour recorded, but indexed under names that do not appear in the servient chain of title. Under the traditional rule a purchaser is charged only with instruments in his own chain, and jurisdictions divide on whether a deed out from a common grantor to another parcel is within it. The second is the ancient, unlocated, or overbroad easement — 'a right of way over the grantor's land' granted in 1885 without location — which clouds title and is best resolved by a declaratory action fixing location, by a negotiated release, or by reliance on a marketable-title act.

Title insurance practice reflects both problems. Standard policies except from coverage easements not shown by the public records and matters that an accurate survey would disclose; removing those exceptions requires a survey and, frequently, curative instruments. The practical counsel is unvarying: obtain a survey showing all visible physical easements, examine both chains, and reduce every access, utility, drainage, and maintenance arrangement to a recorded instrument with a legal description.

The modes of creating an easement are best compared on the axes that distinguish them in litigation: whether a writing is required, whether a prior use must be shown, what degree of necessity is demanded, and how the resulting scope is measured.

A second comparison, across the servitude family, clarifies why the Restatement (Third) unified the subject. The easement and the profit differ only in whether something is removed from the land. The negative easement and the equitable servitude do identical work — restraining use of the servient land — but arose in different courts, were subject to different limits, and until 2000 were governed by different rules of creation and termination. The real covenant differs from the equitable servitude chiefly in the remedy sought and in the privity required. The license differs from all of them in being no interest at all, yet passes into an easement through estoppel with such regularity that the categories blur in practice. The Restatement's response — one law of servitudes, differentiated by function rather than by historical pedigree — is the framework in which the remaining chapters of Part VII are organized.

Four statutory developments dominate the modern law. The first is the conservation easement. The Uniform Conservation Easement Act (1981, amended 2007), enacted in substance in every state, validates perpetual negative easements in gross held by governmental bodies and qualified charitable organizations, and 26 U.S.C. § 170(h) supplies the deduction that drives their creation. Tens of millions of acres are now encumbered, and the emerging doctrinal questions concern amendment, termination, enforcement standing, and the application of charitable-trust doctrine to a private servitude with a public purpose.

The second is relocation. The Uniform Easement Relocation Act (2020) codifies a judicial procedure by which a servient owner may relocate an easement on findings that the relocation will not materially lessen its utility, increase the burden, or impair the security of any lienholder, with all costs borne by the relocating owner. The Act responds to the disorder produced by the Restatement's § 4.8(3) and to the holdout problem the fixed-location rule creates.

The third is prescription reform. A number of states have narrowed prescriptive acquisition sharply, whether by lengthening periods, by adopting a presumption of permission for unenclosed land, by excluding recreational use, or by providing recording procedures — Cal. Civ. Code § 813 is the model — by which an owner may record a notice of consent that defeats any adverse claim while permitting continued public enjoyment.

The fourth is title curative legislation. Marketable-title acts extinguish interests not appearing in a root of title of prescribed age, and the treatment of easements within them is the perennial drafting problem: an act that preserves nothing clouds title forever, and an act that preserves too little destroys utility corridors. The prevailing solution preserves easements that are evidenced by visible use or that are held by public-service corporations, and extinguishes the ancient and unused remainder. Rails-to-trails legislation, 16 U.S.C. § 1247(d), raises the mirror-image problem — whether continued use as a trail is within the scope of a railroad easement or a taking of the servient owner's reversion — resolved against the government in Preseault.

1. "An easement gives the holder ownership of the strip." It does not. The servient owner retains the fee and may use the strip in any way not unreasonably interfering with the easement.
2. "The servient owner cannot use the easement area." He may, unless the easement is expressly exclusive. Shared use is the norm.
3. "An easement not used for many years is gone." Nonuse alone never terminates an easement. Abandonment requires nonuse plus conduct manifesting intent never to use it again.
4. "An unrecorded easement is unenforceable against a buyer." A buyer with actual, constructive, or inquiry notice takes subject to it, and visible physical use supplies inquiry notice.
5. "All easements must be in writing." Express easements must. Easements by implication, necessity, prescription, estoppel, and dedication arise by operation of law and are outside the Statute of Frauds.
6. "A landlocked owner always has an easement by necessity." Only where the landlocked condition resulted from a severance of commonly owned land and the necessity existed at severance. Schwab v. Timmons.
7. "Long use of a neighbour's driveway ripens into an easement." Only if the use was adverse. Permissive use, however long, produces nothing, and several states presume permission.
8. "A license and an easement are the same if both allow entry." A license is revocable, personal, and no interest in land; an easement is none of those things.
9. "An easement in gross cannot be transferred." Commercial easements in gross are freely transferable, and under Restatement § 4.6 transferability turns on intention rather than on category.
10. "The easement holder must repair only what he damages." Absent agreement, the dominant owner bears the whole maintenance obligation, and shared users contribute in proportion to use.
11. "The servient owner may move the easement whenever convenient." Only in jurisdictions adopting Restatement § 4.8(3) or the Uniform Easement Relocation Act, and then only on the prescribed findings and at his own expense.
12. "Subdividing the dominant estate destroys the easement." Each resulting parcel takes the benefit, subject only to the limit that the total burden not be unreasonably increased.
13. "An easement can be reserved for a neighbour only by a separate deed." In most states a reservation in favour of a third party is now effective. Willard v. First Church of Christ, Scientist.
14. "Buying both parcels preserves the easement for later resale." Merger extinguishes it, and it does not revive. The easement must be expressly recreated on the next conveyance.
15. "A negative easement can be acquired by long enjoyment of light or view." American law rejects the doctrine of ancient lights; negative rights must be created by grant.

An easement is a nonpossessory interest in the land of another, conferring a right to use the servient land or to restrain a use of it, and leaving possession and ownership where they were. Because it is an interest in land rather than a contract right, it must ordinarily be created in writing, is subject to the recording acts, and binds and benefits successors — which is the whole of its economic value and the reason the law surrounds it with requirements of definiteness and notice. It is distinguished from the license, which is revocable permission and no interest at all; from the profit à prendre, which authorizes removal of part of the land or its produce; from the covenant and the equitable servitude, which are promises respecting land; and from the lease, which conveys possession.

The classifications carry consequences. An appurtenant easement benefits a dominant estate, passes with it automatically, cannot be severed from it, is limited in scope by its needs, and is extinguished by merger; an easement in gross benefits a person, and its transferability turns on whether it is commercial or personal — or, under the Restatement, on the parties' intention. Affirmative easements permit an act on the servient land and constitute the great bulk of the field; negative easements, confined at common law to light, air, support, and artificial watercourses because prescription would otherwise penalize inaction, were supplemented in equity by the restrictive covenant and are today liberated from the closed list by the Restatement (Third) and by the conservation-easement statutes.

Creation proceeds by six routes. Express grant and reservation require a writing and reward careful drafting of location, purpose, duration, maintenance, assignability, and relocation; the old rule barring reservation to a stranger has largely fallen with Willard. Implication from prior use requires unity of ownership, an apparent and continuous use at severance, and reasonable necessity, as Van Sandt illustrates, with heightened scrutiny of implied reservations. Necessity requires severance and, in most states, strict necessity, endures only while the necessity lasts, and is supplemented in many states by statutory ways and private condemnation. Prescription mirrors adverse possession without exclusivity and turns almost entirely on the presumption applied to unexplained use. Estoppel converts a relied-upon license into an easement, as Holbrook holds. Dedication transfers ways to the public and, through plat sales, creates private easements in purchasers.

Scope is measured by the manner of creation and by the normal development of the dominant estate; a change in kind, or extension to nondominant land, is a surcharge, though Brown v. Voss shows that the remedy is equitable and discretionary. Location, once fixed, was immutable at common law; Restatement § 4.8(3), M.P.M. Builders, Lewis v. Young, and the Uniform Easement Relocation Act now permit servient-owner relocation on defined conditions and at his expense. Maintenance falls on the dominant owner, with proportionate contribution among shared users, and the servient owner's only general duty is to refrain from unreasonable interference. Appurtenant benefits run automatically; easements in gross transfer if commercial or if intended to be transferable; apportionment is limited by the one-stock rule for nonexclusive easements and permitted for exclusive ones. Termination requires release, expiration, merger, abandonment, adverse obstruction, estoppel, cessation of necessity, condemnation, destruction, or statutory extinguishment — never nonuse alone.

Part VII has begun with the easement because every other servitude is defined by reference to it. Chapter 22 takes up the profit à prendre. The two interests are close relatives and share almost the whole of their law of creation, scope, transfer, and termination; they differ in what the holder may do. An easement authorizes use of the servient land — passage, drainage, support, the placement of a line — without any appropriation of the land itself. A profit authorizes entry and the severance and removal of part of the soil or its produce: timber, minerals, oil and gas, gravel, peat, water, fish, and game. The distinction is between using another's land and taking from it, and it produces genuine doctrinal differences in the measure of scope, in the rules governing exhaustion and apportionment, and in the interaction with mineral and water law. Together the easement and the profit constitute the affirmative servitudes recognized at common law, and the chapters that follow them turn to the negative side of the subject — the real covenant and the equitable servitude — before the Restatement's unified framework is assessed as a whole.

• Restatement (Third) of Property: Servitudes (Am. L. Inst. 2000), with Reporter's Notes.
• Restatement (First) of Property §§ 450–564 (1944).
• Charles James Gale, A Treatise on the Law of Easements (1839; 20th ed. 2020).
• Emory Washburn, A Treatise on the American Law of Easements and Servitudes (4th ed. 1885).
• 2 William Blackstone, Commentaries on the Laws of England *32–*35 (1766).
• 3 James Kent, Commentaries on American Law *419–*452 (1828).
• 2 Frederick Pollock & F. W. Maitland, The History of English Law Before the Time of Edward I 124–150 (2d ed. 1898).
• A. W. B. Simpson, A History of the Land Law (2d ed. 1986).
• J. H. Baker, An Introduction to English Legal History (5th ed. 2019).
• 4 Powell on Real Property chs. 34–34A (Michael Allan Wolf ed.).
• Susan F. French, Highlights of the New Restatement (Third) of Property: Servitudes, 35 Real Prop. Prob. & Tr. J. 225 (2000).
• Uriel Reichman, Toward a Unified Concept of Servitudes, 55 S. Cal. L. Rev. 1177 (1982).
• Uniform Conservation Easement Act (Unif. L. Comm'n 1981, amended 2007), with Comments.
• Uniform Easement Relocation Act (Unif. L. Comm'n 2020), with Prefatory Note.
• Real Law Society Press, Foundations of Property Law (2d ed.), Chapters 16–20.