⚡ 10-Second Rule
An easement is a lasting right to use someone else's land, and it usually survives a sale.
🧒 ELI-10 Scene
Nadia's backyard holds the only path down to the lake. Her neighbor Sam has walked that path every summer for years. If Sam only has Nadia's casual "sure, go ahead," that's borrowed permission. Nadia can take it back tomorrow. But suppose Sam holds a written, recorded right to cross. Now the path right is glued to Sam's property. Nadia can sell her yard, and the new owner still must let Sam through. A glued-on right beats borrowed permission.
⚖️ Actual Rule
An easement is a nonpossessory right to use another's land. Under the majority rule it is created four ways: (1) express grant or reservation in a writing satisfying the Statute of Frauds; (2) implication from prior use — prior common ownership of both parcels, an existing use that was apparent and continuous at severance, and reasonable necessity; (3) necessity — prior common ownership plus strict necessity (such as a landlocked parcel) arising at the moment of severance; and (4) prescription — use that is open and notorious, adverse to the owner, and continuous for the statutory period. An easement appurtenant benefits a dominant parcel and passes automatically with it; an easement in gross benefits a person, and the modern majority permits its transfer at least when commercial. Scope may expand with reasonable development of the dominant estate, but using the easement to serve land other than the dominant estate is misuse, remedied by injunction rather than automatic forfeiture. Termination occurs by merger of both estates in one owner, written release, abandonment (nonuse plus an act showing intent to abandon), estoppel, or prescription by the servient owner. A license is mere revocable permission, though it becomes irrevocable when the licensee reasonably spends money in reliance; a profit adds the right to remove resources such as timber or minerals. The Restatement (Third) of Property (Servitudes) §§ 1.2, 2.12, and 2.15–2.17 states the definitional and creation rules in substantially this form (paraphrased).
ELI-10 translation: an easement is a sticky use-right that follows the land, while a license is loose permission.
🔍 Ask These Questions
- How was the right created — express writing, prior use, necessity, or prescription? (Was it written down, already visibly in use, truly needed, or taken openly for years?)
- Is it appurtenant or in gross — does it serve a parcel or just a person? (Does the right help the land next door, or only help one human?)
- Has the land transferred, and did the easement follow? (A right glued to the helped land rides along automatically when that land sells.)
- Is the current use within scope? (Is the holder still doing the original job, or serving extra land beyond the deal?)
- Has anything terminated it — merger, release, abandonment, estoppel, or prescription? (Did the right die by combining, quitting in writing, quitting by action, or being blocked?)
- If there is no easement, is it a license or a profit? (Loose permission can be canceled anytime; a profit lets you carry away things like wood.)
⚠️ Bar Trap
Exam language: Examiners describe an express easement unused for many years, or one whose original necessity has ended, and invite a finding of termination. Mere nonuse, however prolonged, does not terminate an easement; abandonment requires nonuse coupled with an affirmative act unequivocally demonstrating intent to abandon, and an expressly granted easement does not expire merely because the need for it disappears.
ELI-10: Ignoring a right does not erase it. The holder must also do something that clearly shouts "I quit this." And a written easement doesn't vanish just because a new road shows up.
🧪 Question
A landowner owned a ten-acre tract fronting a public highway. Twenty years ago, she sold the rear five acres to a buyer under a deed expressly granting the buyer "a perpetual easement of way over the gravel lane crossing the front parcel." The deed was promptly recorded. Eight years ago, the county completed a public road along the rear parcel's far border. The buyer then paved a driveway to the new road, stopped using the gravel lane entirely, and allowed brush to grow over its entrance. The buyer never said or wrote anything concerning the lane. The current owner of the front parcel, who purchased it last year, has sued to quiet title, contending that the easement has terminated.
Should the court hold that the easement has terminated?
(A) Yes, because the buyer's eight years of nonuse established abandonment. (B) Yes, because any necessity for the easement ended when the public road opened. (C) No, because nonuse unaccompanied by an act showing intent to abandon does not terminate an easement. (D) No, because an express easement can be terminated only by a signed and recorded release.
Answer: (C). The easement was created by express grant, so it persists regardless of need, and termination by abandonment requires nonuse plus an unequivocal act showing intent to relinquish the right. Building a convenient substitute driveway and letting brush grow are consistent with mere nonuse, not a decisive renunciation.
💡 Why the Wrong Answers Are Wrong
- (A) rests on nonuse alone; abandonment demands an unequivocal affirmative act, and using an alternative route is not one.
- (B) applies the end-of-necessity rule to an express easement; that limitation terminates only easements created by necessity.
- (D) overstates the law; merger, abandonment, estoppel, and prescription each terminate easements without any written release.
- ELI-10: The misconception is thinking rights rust away when ignored. A written easement stays alive until someone truly kills it.
