August 10, 2018
Author: Francois X. Sorba
Organization: Law Offices of Francois X. Sorba

In a Nutshell, an easement is a certain right to use the real property of another without possessing it. As we will see, there are many types of easements.

1. Definitions

Easement:
An easement is an interest in the land of another that gives its owner the right to use the land of the other person or to prevent the other property owner from using the land.1

Right of Way:
Some courts have stated that a Right of Way means the conveyance of an easement but other courts have stated that the type of conveyance depends on the wording of the documents and relevant circumstances. A document conveying a Right of Way can either transfer a fee or an easement.

Profit:
A profit is an estate in real property that imposes a burden on a servient tenement. In contrast to an easement, which is a right of use, a profit gives a person the right to take either a part of the soil, or its products, from the land of another. 2

License:
A license gives authority to a licensee to perform an act or acts on the property of another pursuant to the express or implied permission of the owner. The licensee has a personal privilege but does not possess either an interest or right in the land or any estate in the property.3 The privilege conferred by a license is personal to the licensee and cannot be inherited, conveyed, or assigned. Any attempted transfer or assignment terminates the license. A license is not within the statute of frauds.

Restrictions:
A private landowner can impose restrictions by way of covenants or conditions on the land retained and on property being conveyed. Properly created restrictions can be enforced even though the provisions creating them would not qualify to create an easement.

A landowner recorded a “declaration of restrictions” that restricted the use of portions of the land for the benefit of the United States in order to protect a military airport approach corridor. A subsequent landowner alleged that as a covenant it was subject to the doctrine of changed circumstances even though by its terms the restriction was permanent. The government alleged that an easement was created that is not subject to equitable termination. The court held that because the declaration satisfied the requirement for a covenant, and there were no operative words of conveyance, the declaration created a covenant and not an easement.

Lease:
A lease is an agreement that grants to the tenant the rights of exclusive possession and use of real property for a specified period of time. It creates a possessory estate in real property. Thus a lease creates an estate in real property, but an easement merely creates an interest in real property that is not an estate.

2. Classification of Easements

Easements are classified as either appurtenant or in gross.

Appurtenant Easement: An appurtenant easement creates either a right to use, or a right to restrict the use of, the servient tenement for the use and benefit of real property of the easement owner. The property benefited is called the “dominant tenement.”

Examples of appurtenant easements:

The Civil Code4 lists the following easements that can be appurtenant:

1. Having a right of way;
2. Having the rights of pasture, fishing, and taking game;
3. Taking water, wood, minerals, and other things;
4. Transacting business upon land;
5. Conducting lawful sports upon land;
6. Receiving air, light, or heat from or over, or discharging the same on land;
7. Receiving sunlight on or over the land of another for any solar energy system;
8. Flooding land;
9. Having water flow without diminution or disturbance, such as an easement to discharge surface water onto the land of a neighbor other than by the natural flow;
10. Using a wall as a party wall; or a division of a fence;
11. Receiving more than natural support from adjacent land or things affixed thereto;
12. Having public conveyances stop, or precluding the same on land;
13. Having a seat in church; and
14. Having a right to burial.

Easement in Gross:
An easement in gross is a personal right to use the land of another, and as such it is an interest in real property.

Examples of easement in gross:
The Civil Code lists the following as easements that can be in gross:5

1. Having a right of way or the right of pasture;
2. Fishing and taking game;
3. Having a seat in church;
4. Having a right to burial;
5. Taking rents and tolls; and
6. Taking water, wood, or other things.

Other in gross easements:

1. A “conservation easement”
2. Navigation easement across navigable water.

Distinction between Appurtenant and in Gross Easements:

The basic effect of the distinction between appurtenant easements and easements in gross arises when the owner of the easement conveys his or her property. The conveyance of the dominant tenement transfers all appurtenant easements to the grantee as a matter of law even though they are not specifically mentioned in the deed.

Examples of easements that may be either appurtenant or in gross, depending on the intention of the parties and the on the circumstances surrounding its creation, include a right of way; the right to pasture; and the right to take water, wood, minerals, or other things.

A court that is required to determine whether an easement is appurtenant or in gross applies the general rules relating to the interpretation of deeds. The court determines the intention of the parties by interpreting the terms of the instrument creating the easement. 6

3) Affirmative and Negative Easements

Easements may be either affirmative or negative. An affirmative easement gives its owner a right to do something on the land of another, such as a right of way to pass over the other person’s land. A negative easement gives the owner of the easement the right to prevent another landowner from using a part of his or her land that is the servient tenement. The Civil Code includes a negative easement within its description of a “restriction” on real property, similar to a covenant, equitable servitude, or a condition subsequent. An example of a negative easement would be an easement for light and air or a solar easement.

4) Uses of Easements

Drainage and Water Easements
A drainage easement is an interest in the land of another which provides that access to part of the property is given to a third party, usually a municipality, for the purpose of maintaining drainage. The drainage easement may include a culvert or drain which feeds into a drainage system or the easement may simply state that runoff needs to be allowed to flow freely over an area of the property.

Easements for Light, Air or View
An easement for light and air gives a property owner the right to the unobstructed passage of light and air across the land of a neighbor and, in appropriate circumstances, also includes the right to retain an unobstructed view.

In California easements for light and air and for view ordinarily can be created only by an express grant or reservation, by an agreement between property owners, or by the creation of an equitable servitude by appropriate covenants and restrictions. Some municipalities have adopted View Ordinances.

Solar Easements
A “solar easement” is the right to receive sunlight on and over land. Local agencies may not adopt ordinances that create unreasonable barriers to the installation of solar energy systems.7 Legislation requires cities or countries to approve applications to install solar energy systems unless certain findings of adverse impacts on public health or safety are found. An “unreasonable” restriction is one that significantly increases the cost of the system or significantly reduces its efficiency. This public policy is also evidenced by the state laws that provide protection for active solar systems. By the terms of the Solar Shade Control Act,8 a person can protect the sunlight to solar collectors by a procedure to prevent adjacent trees from shading collectors.

Public trust, navigation, and conservation easements
The public trust easement has existed on the shorezone of nontidal navigable lakes and rivers in California since statehood. The public trust easement is reserved to the people of the State of California for the purposes of navigation, commerce, fishing, recreation, and/or retention in its natural condition.9

Where land is adjacent to tidal waters that, by definition, are navigable, the littoral property owner holds title to the mean high?water mark.

The public trust over private land for recreational use extends to navigable waters. The riparian owner retains the nonexclusive right to use the shorezone between high and low water marks in any manner that is compatible with the public’s interest in the property. The riparian owner is entitled to construct a pier or other improvements within the boundary of his or her land so long as they do not interfere unreasonably with the public right of navigation. The California Constitution guarantees that the public shall have access to all navigable waters.10 Regardless of the public trust easement on the shorezone, the public has an easement or servitude on both tidal and nontidal navigable waters for navigation.

Grazing and Mineral Easements

The California Rangeland, Grazing Land, and Grassland Protection Program11 was established to protect California's rangeland, grazing land, and grasslands through the use of conservation easements, for the following purposes: (a) To prevent the conversion of rangeland, grazing land, and grassland to nonagricultural uses; (b) To protect the long?term sustainability of livestock grazing; (c) To ensure continued wildlife, water quality, watershed, and open?space benefits to the State of California from livestock grazing.

"Mineral right" means an interest in minerals, regardless of character, whether fugacious or nonfugacious, organic or inorganic, that is created by grant or reservation, regardless of form, whether a fee or lesser interest, mineral, royalty, or leasehold, absolute or fractional, corporeal or incorporeal, and includes express or implied appurtenant surface rights.12

5) Quasi?Servient Tenement

An owner may use one portion of land for the use and benefit of another portion. Also, an owner of two adjoining parcels of real property may use one parcel for the benefit of the other. In such cases, for purposes of identification, the portion or parcel that is being used is called the “quasi?servient tenement,”13 and the portion or parcel benefited by the use is called the “quasidominant tenement,”

In order for a court to imply the creation of an easement on a division of title, certain conditions must exist at the time of the conveyance:

1. There must be a common ownership of a parcel and a transfer or conveyance of one parcel, or a portion of a parcel, to another
2. Prior to the division of title, there must have been an existing, obvious, and apparently permanent, use of the quasi?easement by the common owner.
3. The easement must be reasonably necessary to the use and benefit of the quasi?dominant tenement.

When the owner’s use of the quasi?servient tenement has continued for a period of time in an obvious and permanent manner, a division of his or her title implies that the parties intended to transfer the obvious burdens and benefits with the property conveyed. Therefore, if the owner conveys the quasi?dominant tenement the grantee receives an implied easement for the use and benefit of his or her property over the quasi?servient tenement retained by the ownergrantor.

1 Mehdizadeh v. Mincer, 46 Cal. App. 4th 1296, 1306, 54 Cal. Rptr. 2d 284 (1996), as modified on denial of reh'g, (July 24, 1996).
2 Dabney?Johnston Oil Corp. v. Walden, 4 Cal. 2d 637, 649, 52 P. 2d 237 (1935).
3 Eastman v. Piper, 68 Cal. App. 554, 560, 229 P. 1002 (1924).
4 California Civ. Code, Section 801.
5 California Civ. Code, Section 802.
6 Moylan v. Dykes, 181 Cal. App. 3d 561, 569, 226 Cal. Rptr. 673 (1986).
7 California Gov. Code, Section 65850.5.
8 State of California v. Superior Court (Lyon), 29 Cal. 3d 210, 229, 172 Cal. Rptr. 696, 625 P. 2d 239 (1981).
9 State of California v. Superior Court (Lyon), 29 Cal. 3d 210, 229, 172 Cal. Rptr. 696, 625 P. 2d 239 (1981).
10 Cal. Const. Art. X, § 4.
11 Cal. Public Resources Code, Section 1D 331, et seq.
12 Cal. Civil Code, Section 883.110, et seq.
13 Cheda v. Bodkin, 173 Cal. 7, 13, 158 P. 1025 (1916).