Easements - Practical Boundary Surveying - page 252

Where there is no specific language in a grant of an easement as to whether an
easement is appurtenant or in gross, the easement is usually construed as being
appurtenant, providing that there is land to which the easement may be attached.
18.4 Scope of an Easement
The language which creates a particular easement should state the specific nature
of the allowed use of the land. This is often referred to as the Scope of the ease-
ment. For example, an easement creating a right of way may say that the way is
limited to passage by foot only. Or it may say that the way is to be used in the
same manner as other ways in town are customarily used. In the first easement, a
person can walk over the land but they could not drive a vehicle over the easement.
In the second case, if large trucks are normally allowed over the streets in town
then they would be allowed to drive over the easement.
An easement is said to be Overloaded when used as an easement appurte-
nant to service land not contemplated in the original easement. Figure 18.1 shows
three parcels of land. Lots 1 and 2 were originally in a single common ownership.
When lot 2 was sold a right of way was created, by express easement, over lot 1
so that lot 2 would have access to Perseverance Way. The right of way is labeled
“Easement” in Fig. 18.1 . Sometime later, B, the owner of lot 2 acquires lot 3. Can
B use the right of way to service lot 3? The answer is no. To do so would be to
extend the use of the easement beyond the original intention of the easement. The
easement, as established, is only appurtenant to lot 2. It is not appurtenant to lot 3.
Attempting to attach the easement to lot 3 would be “overloading” the easement.
It is also possible to Overburden an easement. Overburdening means the
easement is being used for uses not intended when the easement was created.
Figure 18.2 shows the same two parcels of land and the same easement created in
Fig. 18.1 . The general rule is that once an easement serves a parcel of land, if the
land is later subdivided, the easement serves all of the lots in the new subdivision.
In Fig. 18.2 , parcel 2 was subdivided into 13 lots. All of the lots will require use
of the easement over lot 1 to access Perseverance Way. If there are too many new
lots the easement may be overburdened. The issue would be whether or not the
additional burden on lot 1 would be considered to be too great and whether the
increased use of the easement was beyond that which was originally envisioned
when the easement was created.
A common problem facing surveyors in interpreting easements, is where the
writing does not specify the location or width of the easement. For example,
a right of way running over a 200 acre parcel of land is described in a deed as
follows: “including the right to pass and repass from Main Street to the river…”
The question facing the surveyor is: where is the right of way and how wide is it?
In most jurisdictions, where the location of a right of way is not specified in the
grant, the grantor has the right to locate it so long as the location is reasonable.
The justification for this approach is that it is the grantor's land that is being bur-