Licenses, profits, and how easements arise, are limited, and end

Black-letter propositions

1. 01

   An easement is the grant of a nonpossessory property interest that lets the holder use another's land; an appurtenant easement benefits a dominant tenement and burdens a servient tenement, and easements are transferable with the dominant tenement.

2. 02

   Easements can be created by express grant, by implication, by necessity, by prescription, and in some states by estoppel, and California provides that a servitude can be created only by one with a vested estate in the servient tenement.

3. 03

   A statute of frauds, such as New York General Obligations Law section 5-703, requires an interest in real property other than a short lease to be created by a written deed or conveyance, so an oral grant of a right of way fails as an easement.

4. 04

   A license is permission to enter or use land that would otherwise be a trespass; it is revocable, but where the licensee, with the owner's knowledge, makes improvements or substantial expenditures in reliance on the license, it may become irrevocable as a grant through estoppel.

5. 05

   A profit is a right to take something from another's land, such as minerals, timber, water or fish, and California's code lists profit-type rights that may be held apart from land, including the right of way, the right to take water, wood and minerals, and the right of pasture.

6. 06

   A prescriptive easement arises from use for the period that bars an action to recover the land, five years in California, and no possession, however long, ripens into a right against land dedicated to public utility use or owned by a public entity.

7. 07

   The extent of a servitude is determined by the terms of the grant or, for one acquired by use, by the nature of the enjoyment by which it was acquired, and use beyond that scope is an overburden.

8. 08

   A servitude is extinguished by merger of the dominant and servient estates in one owner, by destruction of the servient tenement, by an act by the owner of the servitude that is incompatible with its nature, or, when acquired by use, by disuse for the prescriptive period; an easement by necessity also ends when the necessity ceases.

Use this attack sequence under time

Common wrong turns

• Permission defeats prescription, because a prescriptive right requires use that is adverse to the owner.
• A license is not an interest in land, though estoppel may make a relied-on license irrevocable.
• Nonuse alone does not end an easement acquired by grant, but disuse for the prescriptive period ends one acquired by use.

Worked example

A landowner orally tells a neighbor he may use a gravel road across her land. The neighbor spends $8,000 paving the road, and the owner knew and said nothing. Two years later, the owner locks a gate across the road.

Practice this topic

Easements and how they are created

Cornell's Wex entry defines an easement as the grant of a nonpossessory property interest that provides the holder permission to use another person's land. An appurtenant easement involves two pieces of land, a servient tenement that bears the burden and a dominant tenement that benefits from the grant. Easements may be affirmative or negative. Wex says easements can be created by express grant, by implication, by necessity, and by adverse possession, that they are transferable and transfer along with the dominant tenement, and that an easement can be terminated if it was created by necessity and the necessity ceases, if the servient land is destroyed, or if it was abandoned.

California Civil Code sections 801 through 806 give a statutory vocabulary. Section 801 lists servitudes that may be attached to other land as easements, including the right-of-way and the right of taking water, wood, minerals and other things. Section 802 lists servitudes that may be held though not attached to land, including the right of way and the right of taking water, wood, minerals or other things. Section 804 says a servitude can be created only by one who has a vested estate in the servient tenement, section 805 says it cannot be held by the servient owner, and section 806 says its extent is determined by the terms of the grant or the nature of the enjoyment by which it was acquired.

Licenses and estoppel

Wex describes a license, with respect to real property, as permission to enter or use land owned by another in a manner that would otherwise be a trespass, which may be express or implied and may be revoked. New York General Obligations Law section 5-703 provides that an estate or interest in real property, other than a lease for a term not exceeding one year, cannot be created, granted, assigned, surrendered or declared, unless by operation of law or by a deed or conveyance in writing.

In Holbrook v. Taylor, the Kentucky Supreme Court described the qualification on revocation. Where the licensee has exercised the privilege and erected improvements or made substantial expenditures on the faith of the license, it becomes irrevocable and continues for so long as the nature of the license calls for, and in effect the license becomes a grant through estoppel. The court affirmed the trial court's finding of an easement by estoppel and did not rest on prescription.

Prescription and extinguishment

California Civil Code section 1007 provides that occupancy for the period the Code of Civil Procedure prescribes as sufficient to bar an action to recover property confers title by prescription. It adds that no possession, however long, of land dedicated to public use by a public utility, or dedicated to or owned by the state or any public entity, ever ripens into a right against the owner. Code of Civil Procedure section 318 sets five years as the period in which an owner must sue to recover real property.

Section 811 lists the ways a servitude is extinguished: vesting of the right and the servient tenement in the same person, destruction of the servient tenement, an act on either tenement by the owner of the servitude or with his assent that is incompatible with its nature or exercise, and, for a servitude acquired by enjoyment, disuse for the period prescribed for acquiring title by enjoyment.

Frequently asked questions