Easements implied from prior use, easements by necessity, and easements by estoppel

Black-letter propositions

1. 01

   An easement can be created by express written grant, by implication, by prescription, or by estoppel.

2. 02

   North Carolina requires three essentials for an easement implied by law on severance of title: a separation of title, a use before the separation that was so long continued and obvious or manifest as to show it was meant to be permanent, and that the easement be necessary to the beneficial enjoyment of the land granted or retained.

3. 03

   Separation of title implies unity of ownership of both tracts at some former time, so no easement by implication arises if neither the claimant nor the owner of the burdened land nor anyone under whom either claims was ever the owner of both tracts.

4. 04

   Where, during unity of title, an apparently permanent and obvious servitude is imposed on one part of an estate in favor of another and is in use and reasonably necessary to the fair enjoyment of the other part at the time of severance, a grant of the right to continue the use arises by implication of law on severance.

5. 05

   An easement implied from prior use does not require strict necessity, and it is enough to show physical conditions and use that would reasonably lead one to believe the grantor meant the grantee to continue the use, because it is reasonably necessary to the fair enjoyment of the property.

6. 06

   An easement by necessity by implied reservation requires unity of ownership of the alleged dominant and servient estates, that the roadway is a necessity and not a mere convenience, and that the necessity existed at the time of severance of the two estates.

7. 07

   A claim to an easement by necessity fails if the necessity did not exist at the time the common owner divided the land, and a later need for access does not create one.

8. 08

   An easement by prescription arises when the claimant, or those under whom he claims, has used a way openly, peaceably, continuously, and under a claim of right adverse to the owner and with the owner's knowledge and acquiescence for the statutory period, which was 15 years in Kentucky, and use by permission is not adverse.

9. 09

   A license that gives only a bare right of entry is revocable, but where the licensee, on the strength of the license, erects improvements or makes substantial expenditures, the license becomes irrevocable and continues as long as its nature calls for, in effect a grant through estoppel.

10. 10

    A right to use a roadway over another's land may be established by estoppel, and the licensor may not revoke it after the licensee has exercised the privilege and made improvements at considerable expense.

Use this attack sequence under time

Common wrong turns

• An easement by necessity is judged at the time of severance, not by later needs.
• Permission defeats the adverse element of a prescriptive easement.
• Prior use easements need only reasonable necessity, and strict necessity is not required.
• A license usually revocable at will can become irrevocable after substantial improvements in reliance.

Worked example

A landowner permits a neighbor to cut a road across his land to reach the neighbor's new house. The neighbor spends thousands of dollars building and improving the road and uses it regularly. Years later the landowner tries to close the road.

Practice this topic

Easements implied on severance

Potter v. Potter stated that North Carolina requires three essentials for an easement implied by law upon severance of title, which are a separation of title, a use before the separation so long continued and obvious or manifest as to show it was meant to be permanent, and that the easement be necessary to the beneficial enjoyment of the land, and it explained that where during unity of title an apparently permanent and obvious servitude imposed on one part in favor of another is in use and reasonably necessary to the fair enjoyment of the other part at the time of severance, a grant of the right to continue the use arises by implication of law.

Othen v. Rosier held that before an easement can be held created by implied reservation it must be shown that there was unity of ownership of the alleged dominant and servient estates, that the roadway is a necessity and not a mere convenience, and that the necessity existed at the time of severance of the two estates.

Prescription and estoppel

Holbrook v. Taylor recognized that an easement may be created by express written grant, by implication, by prescription, or by estoppel, stated the prescriptive rule of open, peaceable, continuous use under a claim of right adverse to the owner with the owner's knowledge and acquiescence for 15 years, and found no prescription where the use before the disputed period was by permission and not adverse.

Holbrook v. Taylor also held that a right to use a roadway over another's land may be established by estoppel, and it applied the rule that where a licensee has exercised the privilege given and erected improvements or made substantial expenditures on the faith of the license, it becomes irrevocable and continues as long as the nature of the license calls for, in effect a grant through estoppel.

The rule of visible easements

Pritchard v. Scott repeated the rule of visible easements that where during unity of title an apparently permanent and obvious servitude imposed on one part of an estate in favor of another is in use and reasonably necessary to its fair enjoyment at severance, a grant of the right to continue the use arises by implication of law, and noted that Potter v. Potter sets out the prerequisites for establishing such an appurtenant easement.

Frequently asked questions