Easements - Practical Boundary Surveying - page 250

18.1 Express Easements
An easement created by a writing is called an E xpress Easement . For example,
A grants a parcel of land to B which contains the following language: “said land
is conveyed along with a right to drive vehicles over a way 20 feet in width which
runs over my remaining land along my westerly boundary from Walden Street
to Great Pond…” This language creates an express easement. The easement is
called an easement “grant” because the grantor grants the easement to the grantee.
A grantor may also convey a portion of her of land and retain a right of passage
over the land being conveyed. The language creates a Reserved Easement : “…the
grantor reserves the right to pass and repass with vehicles or on foot over an old
drift way as it is now located on the ground between the highway and the cedar
swamp…”. It is called a reserved easement, because the grantor reserves the ease-
ment to herself out of the parcel being conveyed. By the way, a driftway is a com-
mon way or path used for driving cattle.
Easements are interests in land, and are therefore subject to the Statute of Frauds.
The easement must be created by virtue of a writing to be effective. As with most
legal rules, there are exceptions and sometimes the exceptions swallow the rule. As
we shall see, there are a number of ways to create easements without a writing.
18.2 Easement Appurtenant
An easement can be an Easement Appurtenant or an Easement in Gross . An
easement appurtenant, means that the easement serves a parcel of land. An ease-
ment appurtenant attaches to the land and passes with title to the land. For exam-
ple, see Fig. 18.1 “A” owns lot 1 that fronts on Perseverance Way. “B” owns Lot 2
abutting A that has no access to Perseverance Way. A grants B an easement appur-
tenant over her land so that B can drive her vehicles from Perseverance Way to B's
land. B's land is called the Dominant Estate or Dominant Tenement and A's land
is called the Servient Estate or S ervient Tenement .
An easement appurtenant attaches to the land and passes with title to the land.
Easements appurtenant are said to Run with the Land . This essentially means
that the easement is attached to the land and not to the persons who own the land.
Consider the previous example where A granted to B an easement to travel over
her land to Perseverance Way. The validity of the easement would not be affected
if either A or B conveyed their property. If B sells her land to C, C will have the
same rights that B had to access Perseverance Way. However, once B makes the
conveyance, B will no longer have any right to use the right of way.