Court disputes over easements created for transmission lines and other utilities are a relatively recent phenomenon that has become even more prevalent in the last 20 years. Many of these conflicts involve easements that are not appurtenant to any particular tract, commonly known as “easements in gross.”
Private easements created for access to specific tracts of land are generally presumed to be appurtenant easements unless expressly identified to the contrary. By contrast, public or quasi-public utility easements are more likely to be categorized as easements in gross. The difference between the two categories is described in the New Jersey decision Weber v. Dockray, 2 N.J. Super. 492 (1949): The distinction between the two, of course, is that an easement appurtenant requires a dominant tenement to which it is appurtenant, whereas an easement in gross belongs to its owner independently of his ownership or possession of any specific land.
As with other rights and interests in land, the intent of the writings (if any) associated with the creation of an easement will determine if the easement is appurtenant or in gross. While older easement descriptions rarely use the specific phrases ‘appurtenant’ or ‘in gross,’ the uses expressly described or those implied by the circumstances surrounding the creation of the right will provide evidence of the original intent of the parties.
Language or surrounding circumstances that inextricably link the easement to an identifiable dominant estate generally support a conclusion of an easement appurtenant, while limited uses of land that are unconnected to a specific estate are indicative of easements in gross. Poorly worded easements for rail lines, gas mains or major power transmission lines will often result in an easement in gross because of the unmistakable purpose of the grant and lack of a definable dominant estate.
Easements appurtenant exist to benefit the dominant estate (the tract served by the easement) and cannot exist separately from the dominant tract. Numerous decisions affirm that an appurtenant easement cannot be conveyed separately from the sale of the dominant estate.
The South Carolina court applies a somewhat archaic—but still legitimate—method of distinguishing between easements ‘appurtenant’ and ‘in gross.’ Williams v. Tamsberg: 821 S.E.2d 494 (2018) echoes early American legal authorities, asserting that an easement appurtenant cannot arise where neither terminus of the easement touches the land of the party claiming the easement. Previous South Carolina rulings clarify that: …the terminus requirement only requires “the dominant estate be contiguous or adjacent to the easement or right of way.” This restatement recognizes the possibility of an easement that has more than one dominant estate but concedes that an easement cannot be appurtenant to a tract it never reaches.
Easements in Gross
Easements in gross do not serve an adjoining dominant tract but rather may benefit a community or a region of indeterminate area. Depending on jurisdiction and circumstances, easements in gross may also be assignable to a third party, depending on the original intent. Easements in gross can be characterized as either commercial or personal rights.
Some early legal scholars have questioned whether a right without a recognizable dominant estate should be categorized as an easement. However, the weight of authority concedes that the term “easement in gross,” however inaccurate in the technical sense, has become so ubiquitous and well-established that it must be accepted provisionally as a convenient label identifying a category of incorporeal rights. Easements in gross seem to defy obvious pigeonholes and force courts to apply separate standards from those established for easements appurtenant.
Courts have recognized that other rights to real property, such as “profits a prendre,” may be sub-categorized as ‘in gross’ or ‘appurtenant.’ The New York decision Huntington v. Asher, 96 N.Y. 604 (1884) recognizes the possibility: It must be admitted that the strict and technical definition of an easement excludes a right to the products or proceeds of land, or, as they are generally termed, profits a prendre. But that such a right is in the nature of an easement, and although capable of being transferred in gross, may also be attached to land as an appurtenance and pass as such, is shown by the authorities…
Another distinction between easements ‘in gross’ and easements ‘appurtenant’ is the applicability of the doctrine of merger. While easements appurtenant are susceptible to extinguishment by merger of the dominant and servient estates, easements in gross may not be terminated in this manner due in part to the lack of a recognizable dominant estate.
Conservation easements have also become more numerous in recent years and as a result have received more attention by the courts. Several decisions categorize conservation easements as easements in gross, and therefore immune to the effects of the doctrine of merger. In Virginia, the common law presumption is buttressed by statute. Montana is another state where conservation easements are expressly identified by statute as easements in gross. Scott v. Lee & Donna Metcalf Charitable Trust, 2015 MT 265.
Additional Complications
Early litigation over rights to flowing water associated with mills established an additional “gray area” in the standard definitions of easements appurtenant. In Stovall v. Coggins Granite Co., 116 Ga. 376 (1902), the Georgia court concluded that easements could be appurtenant to a business practice such as a mill or quarry. In these instances, the easement is appurtenant to a “greater right” rather than to a specific tract of land and continues to exist as long as the business operation endures. Most courts agree that an easement appurtenant must be associated with some tangible property and cannot be appurtenant to another easement or other incorporeal right.
Easements created by prescription present their own challenges for the courts. Since documents rarely exist to prove intent, the extent and scope of the easement created must be derived entirely from visible use and surrounding circumstances that existed throughout the prescriptive period.
The presumption favoring easements appurtenant is not conclusive for prescriptive claims. The category of the resulting easement is controlled by the visible and apparent use. Many state courts recognize that railroad easements may be created by prescription, as can easements for major power transmission lines. In these situations, the lack of a recognizable dominant estate will support a conclusion that the easement is in gross.
In Ammer v. Arizona Water: 169 Ariz. 205 (1991), the Arizona court provides a succinct method for determining the type of prescriptive right created: In determining whether a prescriptive easement is appurtenant or in gross, courts consider whether the adverse use took place in connection with and for the benefit of a particular parcel of land. 3 H. Tiffany, B. Jones, The Law Of Real Property § 759 (3d ed. 1939).
Standards for identifying an overburden of an easement vary between those ‘appurtenant’ and ‘in gross’. Since easements in gross lack a dominant estate, the use of the easement corridor itself is the only available criteria from which to draw a conclusion. Arguments for overburden of easements appurtenant are often based on use of the dominant estate in addition to the activities within the easement corridor itself.
Poor mapping practices and vague legal descriptions can contribute to confusion over the intended use of an easement and the category that it belongs in. A deed will often include a reference to a plat for a detailed description; the plat can be either physically attached or incorporated by express reference. A plat or deed that does not clearly indicate the purpose and nature of the easement invites the possibility of later litigation.
As always, it is important to recognize the complexity of easement law. As new technology and methods become widely available, additional complications inevitably follow. As noted in the recent unpublished New Jersey decision Friedman v. MTR Ventures, LLC; 2016 N.J. Super. (Unpub.): In determining what the parties intended, “there are no limits on the kinds of combinations of servitude benefits that can be created,” and “the full range of possibilities should be kept in mind.”
