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EASEMENTS: A PRIMER

Determining the scope and validity of easement rights often presents a problem for attorneys in the practice of real estate. Issues such as creation, scope, and termination of an easement frequently surface in actions for quieting title, when property is sold, or when one party seeks to expand its easement rights. While easement rights depend mostly on the particular facts of individual scenarios, there are common rules that can be relied upon in all cases. This article provides a general overview of the rights and characteristics of easements in Illinois.

General Definitions and Classifications

Easements are ordinarily divided into two broad categories: easements appurtenant and easements in gross. An easement appurtenant is the right of one property owner to use the land of another for a specific purpose. It requires a dominant and a servient estate, where the dominant estate has the easement right over the burdened property, or servient estate. An easement appurtenant is created when the grantor reserves a right in the nature of an easement for the benefit of another land that was originally a part of the grantor's land. When the properties are not adjacent or joined to each other, an easement can still be considered appurtenant if both the dominant and servient estates are clearly defined. This easement right generally runs with the land, or passes with the land, and is therefore transferable by conveyance. Even if the instrument of conveyance does not specifically mention the existence of the easement appurtenant, the easement is still valid since an easement appurtenant passes with the transfer of the dominant land. It is incapable of existence separate from the particular land to which it is attached.

An easement in gross, on the other hand, is a personal interest in the property of another and is not assignable or inheritable. It is not connected to or for the benefit of other land. It is only a right to use the land for a specific purpose. The most common easement in gross appears in the form of a public utility easement.

To determine whether an easement is appurtenant or in gross, examine the nature of the rights and intention of the parties creating the easement. Courts commonly do not favor construction of an easement in gross when an easement appurtenant can be fairly construed from the facts. If the easement is in its nature an appropriate and useful adjunct of the lands conveyed, and there is nothing to show that the parties intended it to be a mere personal right, the easement is appurtenant.

Easements are also classified as affirmative or negative. An affirmative easement authorizes the use of the property of another that would normally give cause to a right of action in the absence of the easement. An example would be a right of way or a right to discharge matter on another person's land. A negative easement grants a right to the dominant estate owner to restrict the servient estate owner's use of the servient estate in a specific way.

Creation of Easements

Easements can be created in one of three ways: express creation; creation by prescription; or operation of law.

Express Creation

An easement can be expressly created by a specific grant, by reservation in a deed conveying property, by contract or agreement, by lease, or by plat. All these methods require a written instrument. The intentional creation of an easement is the most straightforward and effective method. Ambiguous language in the instrument may give rise to conflicting interpretations. Although case law has indicated that no particular words are necessary to constitute a grant of an easement, to avoid future conflicts in determining the validity and scope of the easement, it is best that drafters use clear, concise, and unambiguous language in expressing the particular characteristics of the easement. Generally, instruments used to create an easement should contain a description of the easement, its purpose, any conditions or restrictions to its use, the party responsible for maintenance, and duration, if any.

The terms creating the easement must be definite and unequivocal. In Coomer v Chicago and NW Transp Co, 91 Ill App 3d 17, 414 NE2d 865, 46 Ill Dec 812 (1980), the court held that because an easement is an interest in land, a grant of easement by contract must contain all the formal requirements of a deed.

An express creation of an easement can also be accomplished by deed, plat, or lease. Again, clear and concise language dictating the terms of the easement in the instrument and identifying the intent of the parties will be of major concern. Particularly with easements created by plat of subdivision, appropriate language stating the nature of use of the easement is necessary to ensure the validity of the easement. In addition, the plat has to meet all statutory requirements for recordation. A declaration is often recorded along with the subdivision plat. When the declaration is properly made and is comprehensive in details such as access, parking, and utility easements, it will usually run with the land and be binding upon all subsequent owners of subdivision lots.

Creation by Prescription

An easement can also be created by prescription. This essentially means claiming title to the easement through adverse possession, and the requirements are virtually the same. To establish an easement by prescription, the party claiming the easement must demonstrate that use of the easement has met the following criteria: adverse, exclusive, continuous and uninterrupted use, under claim of right, and with full knowledge of the owner of the land and without consent, all for 20 years. All these conditions must be met, as evidence to the contrary will defeat the claim. Once an easement by prescription is established, the scope of use will be determined by the actual use during the statutory period and cannot be intensified. In re Onarga,179 Ill App 3d 493, 534 NE2d 226, 128 Ill Dec 206, (1989).

Operation of Law

In addition to prescriptive use, operation of law can create an easement in several other ways. An easement can also arise by implication or by necessity. The requirements for creating an implied easement, whether in favor of the grantor or the grantee, must include the following: severance of title; the use giving rise to the easement must have been continuous, obvious, or manifestly permanent prior to severance of title; and the claimed easement must be necessary to the beneficial enjoyment of land granted or retained. In Granite Properties Ltd v Manns, 140 Ill App 3d 561, 487 NE2d 1230, 94 Ill Dec 353 (1986), the court found that the claimed easement by implication over grantee's apartment complex driveway alongside grantor's shopping center was necessary to the beneficial enjoyment of the shopping center. The driveway had been in use by the grantor for several years, the grantees were aware of the driveway and its use by the grantor before they purchased the property, and the easement was required to make deliveries to the shopping center. Id.

An easement by necessity is usually in the form of an access road to prevent property from being landlocked. It is created when an original common ownership is subsequently divided so that one parcel of land is landlocked without the access easement. However, once an alternative is found, the access easement ceases to exist.

Termination of Easements

Easements can be terminated through release, merger, or abandonment, or lost by adverse possession. 25 AM JUR 2D Easements and Licenses §§ 112-119 (1996). Termination occurs by release when all the dominant owners agree to abandon the easement. City of Chicago v Hogberg, 217 Ill 180, 75 NE 542 (1905). To terminate an easement by abandonment, the party must first prove that the dominant estate owner intended to abandon use of the easement. Beloit Foundry Co v Ryan, 28 Ill 2d 379, 192 NE2d 384 (1963). However, a showing of failure to use the land is insufficient on its own to prove abandonment. Demonstration of intent is necessary and can be implied from the circumstances, unless it has been clearly expressed. For example, Illinois courts have held that adverse acts of the servient owner acknowledged by the dominant owner can be considered when making a determination of intent to abandon. Chicago Title & Trust Co v Wabash-Randolph Corp, 384 Ill 78, 51 NE2d 132 (1943).

An easement may also terminate through a merger of interests. A merger occurs when the title and possession of the dominant and servient estate unify in one owner. A merger serves to terminate an easement because no one can have an easement in his or her own land. However, not all mergers will terminate an easement. For example, a transfer to the dominant estate owner of a two-thirds interest in the servient estate does not extinguish an easement. In Beloit Foundry, the court found that an easement appurtenant to land may be extinguished by surrender or release from the dominant owner to the servient owner. However, a release as to one dominant tract does not thereby terminate the right to the other dominant tracts. In Kaufman v 666 North Water Bldg Corp, 130 Ill App 2d 785, 267 NE2d 345 (1971), the court decided that where two contiguous parcels were servient to each other by appurtenant easements, if a portion of one of these parcels was conveyed back to the owner of its dominant estate, the easements of the remaining portion were not destroyed by merger.

Extent of Right of Use

Generally, the precise language of the grant of easement, or the purpose for which it was created, determines the extent of the easement. Usually, courts will not limit, impair, or interfere with the use and enjoyment of an easement when it is within the lawful scope, domain, and purpose as originally established. When the extent of use is unspecified or unclear, courts will determine from the facts and circumstances what is reasonably necessary to carry out the purposes of the easement. See Koplin v Hinsdale Hosp, 207 Ill App 3d 219, 564 NE2d 1347 (1990); Farmers Grain & Supply Co v Toledo, P & W RR, 316 Ill App 116, 44 NE2d 77 (1942). While an easement owner is entitled to full enjoyment and every right connected to the enjoyment of the easement, the easement owner does not have a right to hamper the servient estate owner's control or use of the land by going beyond what is reasonable use of the easement. Doan v Allgood, 310 Ill 381, 141 NE 779 (1923). However, an easement owner is limited to using the easement only to benefit the land the easement was originally intended to benefit, and not other lands the easement owner may own. Beloit, 28 Ill 379, 192 NE2d 384; Miller v Weingart, 317 Ill 179, 147 NE 804 (1925).

For right of way easements, an easement owner has the right to reasonable use in the purpose for which it was acquired. Keessen v Zarattini, 119 Ill App 2d 284, 256 NE2d 377 (1969). Generally a grant of a right of way easement does not include a right to have that way kept open to the sky for light and air. Rudolph Wurlitzer Co v Bank of Chicago, 290 Ill 72, 124 NE 844 (1919). Illinois courts, however, have allowed railroad companies to erect structures over their right of ways when no interference with the reasonable use of the easement as a passageway would result. Farmers Grain & Supply Co, 316 Ill App 116, 44 NE2d 77.

While the privileges arising from the easement are usually reserved for the easement owner, this exclusivity in use does not prevent the servient estate owner from using the easement. A servient estate owner also has the right to use the easement for any purpose as long as the use does not disrupt the enjoyment of the easement by the dominant estate owner. A use will be found obstructive and improper if it results in a material and unlawful interference with the easement owner's use. Courts have held that fences, gates and posts are obstructions to the right of ingress and egress over the right of way, and therefore alter or limit use of the easement. Healey v Roberts, 109 Ill App 3d 557, 440 NE2d 647, Ill Dec 927 (1982); see also Batchelder Co v Gustafson, 32 Ill App 3d 14, 335 NE2d 565 (1975). The easement owner has the right to remove an improper obstruction.

Maintenance

Unless agreement is made otherwise, it is the easement owner's duty and right to maintain the easement. However, the easement owner is restricted from improving the easement to the extent of materially altering the character of the easement where the alterations would greatly burden the servient estate or interfere with the use and enjoyment of the servient estate by its owner.

Exclusivity of Use

Persons entitled to use the easement are mostly dependent upon the terms of the grant or agreement as interpreted by of the circumstances when the grant or agreement was made. For right-of-way easements, when entitlement is unclear, courts have held that the easement is not intended to benefit the general public, but is reserved for the easement holder. In Marlatt v Peoria Water Works Co, 114 Ill App 2d 11, 252 NE2d 403 (1969), the Illinois Supreme Court held that where a public utility easement in a recorded plat that was reserved for installing and maintaining gas pipes, conduits, cables, poles, and wires for the purposes of serving the subdivision and adjoining property with gas, electric, and telephone services, the water company was not permitted to locate, construct, and maintain a water main under the easement strip because the language of the reservation did not include water services.

These are some basic rules of construction for examining easements. Should you have an easement with a more specific question, please call the Underwriting Department to discuss it. For information on how to insure easements, or how to raise exceptions for easements, please consult your Underwriting Manual or call the Underwriting Department.

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