Easements Implied by Prior Use - Quasi Easements are Everywhere.
Numerous sources describe appurtenant easements as incorporeal rights—the limited use by one party of the lands of another. Despite limitations implicit in this brief definition, easements remain legitimate interests in real property. They are subject to the statute of frauds in virtually all states (Virginia being the lone exception). As such, they have limits and those boundaries are subject to location by land surveyors.
In Daniel v. Carnevale: 300 A.D.2d 893; 752 N.Y.S.2d 737 (2002), the New York court observes: “The general rule is that a person cannot have an easement in his or her own land…” The rights of individuals to use their own lands are limited only by legitimate government regulatory authority. Individuals do not need easements—or permission from other landowners—to build driveways across one part of their own land to serve their needs on other areas. However, these improvements sometimes result in “quasi-easements,” where one part of a single tract appears servient to the other part.
The Virginia court describes quasi-easements and their significance in Dr. Hill Carter, Sr. v. County of Hanover: 496 S.E.2d 42 (1998): “While one cannot have an easement on land he owns, if, before severance, one part of the land was used for the benefit of another part, a “quasi-easement” exists over the “quasi-servient” portion of the land.” The area served by the quasi-easement is referred to as the ‘quasi-dominant’ estate. Quasi-easements are common and generally of little significance as long as the tract remains in single ownership, but may cause complications when the parent tract is later divided. Where all required elements are met, the division of the original parcel may result in an easement implied by prior use.
The recent Indiana decision Haak v. Wilusz: 949 N.E.2d 833 (2011) includes a concise statement of requirements that is relatively consistent throughout the United States: “an easement of prior use will be implied ‘where, during the unity of title, an owner imposes an apparently permanent and obvious servitude on one part of the land in favor of another part and the servitude is in use when the parts are severed ... if the servitude is reasonably necessary for the fair enjoyment of the part benefited.’”
A breakdown of the preceding quote provides the four basic elements for an easement implied by prior use:
1. Initial unity of title.
2. During that unity, visible and continuous use of one part to benefit another part.
3. Subsequent severance of the parent tract
4. Reasonable necessity for enjoyment of the resulting dominant tract.
The Tennessee court states a similar standard in Rogers v. Roach: No. M2011-00794-COA-R3-CV (2011):
"The elements necessary to create an easement by implication include:
(1) a separation of the title;
(2) a necessity that, before the separation takes place, the use which gives rise to the easement shall have been so long continued and obvious or manifest as to show that it was meant to be permanent; and
(3) a necessity that the easement be essential to the beneficial enjoyment of the land granted or retained; and
(4) continuous, as distinguished from temporary or occasional servitude."
The Tennessee court also notes that, because there is no express language to define the extent and terms of the easement, its width, location and limitations will be defined by the prior use that gave rise to the presumption.
Comparison of the language of the Tennessee and Indiana cases above reveals substantial agreement as to the basic elements, but also highlights a minor variation in the level of necessity required to prove an implied easement based on prior use.
The most common applications of this doctrine are in situations where the quasi-dominant tract is sold with no legal access—creating an apparently landlocked parcel. In some situations, easements implied by prior use may be recognized even where the original deed for the dominant tract grants legal access, but in a location different from the visible road.
Easements implied by prior use may be recognized regardless of whether the quasi-dominant parcel is sold to the grantee or retained by the grantor. This represents a limited exception to the general rule that a grantor cannot denigrate the terms of his own grant.
Courts justify easements implied by prior use under the presumption that neither buyer nor seller would consider a sale that resulted in land with no legitimate means of access. In these circumstances, the courts presume intent that is not expressed in the deed language. The Tennessee court highlights the majority stance regarding presumed intent in Rogers v. Roach: No. M2011-00794-COA-R3-CV (2011): “Such an easement often occurs “upon severance of a single piece of land into separately owned parts as an inference of the intention of the parties to the conveyance.””
Presumed intent is the basis for one of the elements required for implied easements—the common grantor. This reasoning is strengthened when sellers convey land that is completely surrounded by remaining lands of the grantor. On the other hand, the presumption is rebuttable and the doctrine will not be applied where the express language of the deed negates its application.
Courts highlight that presumed intent must be demonstrated at the time of the original division of the parent tract, as seen in the Oregon decision Manusos v. Skeels: 330 P.3d 53 (2014): “It is black-letter law that an easement may be implied “by inference when the circumstances that exist at the time of severance of a parcel establish that the grantor of the parcel intended to create an easement.”…it is equally well established that “severance of a parcel” refers to the division of ownership of land, not a division that occurs through a platting process or partition but does not change ownership of the parcels…That is, without exception, implied easement cases have focused on a common grantor’s intent at the time of conveyance of a parcel.”
Implied Easement for Pipeline
The vast majority of cases dealing with implied easements involve driveway disputes, but a few have dealt with other property rights, as seen in the Massachusetts decision Jasper v. Worcester Spinning: 64 N.E.2d 89 (1945). Two mills, located on opposite sides of a public road, had been in operation since 1868. They remained under single ownership for many years. They shared a common water source drawn from Kettle Brook—initially run through an open canal that was later replaced with a pipe.
When one mill site was sold separately, the water system continued to supply water to both parcels and was considered “reasonably necessary” for mill operations. The court concluded that the circumstances surrounding the sale of one of the mills fulfilled the elements for an easement implied by prior use. While the requirement that the use be open and apparent is more problematic for pipelines and canals, both parties were aware of the canal/pipe system and of its significance to continued operation of the mill.
Easement by Prior Use Does Not Include…
‘Easements by Necessity’ are implied rights related to rights implied by prior use, but with significant differences. For the former, the near-absolute need of access itself proves the intent and no physical evidence of a road or other prior use is required. Those implied by prior use are proved by reasonable need combined with the apparent and permanent physical structures that facilitate access.
Unlike easements created by estoppel or prescription, implied easements must originate from the division of an original parent tract. Under this doctrine, no easement will be implied over the lands of a stranger.
Implied easements are not based on the same principles as are applied in cases of practical location. Implied easements presume a right—based on circumstances surrounding the grant—that is not stated in the deed. By contrast, practical location is a survey doctrine that clarifies locations of a poorly-described easements expressly created by grant or reservation.
The South Carolina courts had not formally recognized easements implied by prior use until the recent benchmark ruling Boyd v. BellSouth Tel. Tel. Co.: 369 S.C. 410 (2006). The recognition of the doctrine necessitated a lengthy discussion of the various mechanisms that can result in an easement and their differences: “Easements by prescription, implied by prior use, and implied by necessity have different elements and are applicable to different factual scenarios; thus, an easement implied by prior use has not been subsumed by other types of easements. Regardless of whether an easement implied by prior use was originally recognized in a water drainage situation, this does not prevent its application in other circumstances.”
It is important to recognize the different mechanisms that can be used by the courts to recognize an easement. Physical indications of possible unwritten rights may be apparent and susceptible to location by land surveyors or to observation and recognition by other land use professionals.