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The nature and characteristics of easements Essay

David’s rights and remedies in this given scenario may be properly evaluated only through an understanding of the nature and characteristics of easements. Thus, a revisiting of the underlying concepts and principles relating to the subject is in order. This material will go over said concepts and principles hand in hand with the factual background of the problem given, and from them the issues be formulated, rules laid down and a conclusion be drawn.

An easement may be defined as an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner or for the benefit of a community or one or more persons to whom the burdened estate does not belong by virtue of which the owner is obliged to abstain from doing or to permit a certain thing to be done on his estate. It is in the nature of a limitation on the right of dominion. For as a general rule, the owner of a thing may do whatever he wants with his property. This rule is subject only to the limitation that the owner must respect existing burdens such as an easement, i.e., right of way and access to light or view, as are involved in the case herein.

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An easement is a non-possessory interest in another person’s property. By virtue of this right, a person is allowed to make use of a property of which he is not the owner or rightful possessor.  The land burdened with an easement is termed “servient estate” and the land for whose benefit an easement is constituted is called “dominant estate.” In this case, Lot 7 of Charles is the servient estate while David’s Lot 8 is the dominant estate.

Thus, David, as holder of the dominant estate, may construct a driveway traversing the servient estate belonging to Charles. This right, however, is not without limit. It does not allow David to occupy Lot 7 or exclude others to use the same unless such use causes interference with David’s right to use said easement. On the other hand, Charles’ right to use his lot is not stripped away. He may still use the land but may not stop others from using the same except when said use interferes with David’s right to use the driveway.

Easements may be positive or negative. It is positive if say, a neighbor allows the other to create a driveway on the former’s property. This is common in landlocked properties where there is no adequate outlet to a public highway as the case of David in building a driveway on Lot 7 will show. It is negative when the owner of the servient estate is precluded from doing something upon his property for the benefit of the dominant estate.

This is the case in easements of light and view. David then has a right to bar the owner of Lot 7 to obstruct the light coming from the direction of the said lot for the use of the former’s solar heating equipment. In this scenario, the present owner of Lot 7 may still use his property in whatever way he deems it proper but only to the extent that it will not interfere with David’s right to an unobstructed access of light to his property for the purpose of his solar equipment.

In determining the rights of contesting parties with respect to easements it is necessary to determine how are these burdens created. Easements are usually created by conveyance in a deed or other written memorandum such as a will or a contract. In the problem given, Able, by virtue of an agreement in the form of a deed, granted to Burt unimpeded access to his Lot 2 from the former’s Lot 7. However, the latter did not utilize the right given him.  The same right was given to David. By the same token, he was allowed by Burt to build a driveway to gain access to and from Fifth Street.

There are also limited instances where easements are implied by the courts by matter of law.  Easements are also created by implication such as by routine or continued use for a certain period of time. These instances will preclude the owner of the servient estate from denying the burden constituted on his property and the use of the dominant owner of the same.

For instance, David constructed a solar heating equipment on his property. There is here an implied obligation on the part of the owner of Lot 7 to allow David access to light coming from the direction of the servient estate. Otherwise, the equipment would be rendered useless causing prejudice to David. However, as stated earlier, this does not preclude the owner of the servient estate to use said property if it will not interfere with the other’s use of the easement of light.

Now that an easement is created, conflicts may arise as to the extent of its use, location and scope. These may be resolved by looking at the provisions of the deed creating an easement if there is one. Some written documents creating this right are clear as to such matters that conflicts are easily resolved and the rights of the parties properly ascertained.

The problem arises when the deeds creating an easement are unclear, ambiguous or such that the extent of use, location and scope of an easement cannot be properly determined with reasonable certainty. In such cases, the courts may be called upon to settle the matter. If this be the case, the intention of the parties may aid the courts in arriving at a just conclusion.

One must not be oblivious of the fact that a holder of an easement has a right to do “whatever he may deem convenient or necessary to enjoy fully the purposes for which the easement was granted”  Highway Holding Co. v. Yara Eng’g Corp., 22 NJ at 136 (1956) as long as it does not unduly burden the servient estate by reason of said use. It must also be said that the servient owner has a corresponding obligation not to unduly interfere, restrict, obstruct or take away altogether the right to said easement. In resolving conflicts, the courts shall determine what is undue with a due regard to the circumstances prevailing in each particular case.

In this case, David purchased Lot 8 from Able with an agreement with Burt to the effect that the former be allowed to build a driveway for the purpose of gaining access to the Fifth Street. A purchaser of property such as in this case may reasonably assume that one of the benefits of purchasing the property is free access to the public street. It is no doubt “necessary or useful for the beneficial enjoyment of the lot(s) conveyed.” Highway Holding Co. v. Yara Eng’g Corp., supra, 22 NJ at 136. Thus, any undue interference to such use or enjoyment would be stricken down by the courts in favor of the prejudiced estate.

Not to be set aside are rules of the Township relating to zoning. It is a well settled principle in constitutional law that the legality of variances and building permits granted to any applicant must comply with existing zoning ordinances in force at the time of application. Otherwise, the courts will be inclined to rule that such grant be stricken down.

One factor that deserves judicial notice is the continued and uninterrupted use of the easement over a considerable period time or prescriptive use. Prescriptive use may create an easement permanently.

Come now to the objections of David to the variances and building permit granted to Charles. The facts of the case admit the creation of the easements of right of way and light or view. It is also an undisputable fact that T township has its first and only zoning ordinance providing that “the only permitted property use in the municipality is for single-family residences on lots 7500 square feet or more in size.” These matters will be considered in determining the rights of the parties as against each other.

            It must be borne in mind that Charles’ predecessors in interest had granted David a right to construct a driveway linking his home to Fifth Street. Charles must respect this as this burden existed at the time of his purchase of Lots 2 and 7. It is well settled in Property Law that the burdens or encumbrances follow the property upon which it was constituted. Moreover, the facts of the case that called for an assumption that “all conveyances were by bargain and sale deeds with covenants against grantor’s acts, and that all deeds were fully and properly executed, acknowledged and immediately recorded.

”Therefore, there is no reason why Charles may not respect David’s right of way upon his purchased property. To add to Charles’ predicament is the fact David’s use of said easement remained uninterrupted from 1962 until the threat of removing the same by Charle’s in 1980 or for a period of 17 years. Clearly, David’s predecessors in interest are “barred by the operative provisions(six years) of the statute of limitations N.J.S.A. 2A:14-1…as well as a waiver under laches or similar doctrine of any rights that [plaintiffs] may have had to seek access or development of the property.” Highway Holding Co. v. Yara Eng’g Corp. supra.

It also cannot be denied that David was given an implied negative easement with respect to the entry of light to his solar heating equipment spending a considerable sum therefor. Though David has not acquired prescriptive use of the same, having only existed for 2 years at the time of the grant of the building permit herein, he has a right to an unobstructed passage of light coming to his property for the purpose of the equipment.

To deny him such right or to allow Charles to build a residence that would practically obstruct light to said equipment would be to unduly interfere with the necessary or beneficial enjoyment of the lot conveyed. However, Charles may still build a house at a height or location that would not unduly obstruct the use of the easement.

Incidentally, the dispute could not have resulted if only T had followed the law. The zoning ordinance limits the use of properties for single-family residences only. Charles application was for the construction of two family residences. Clearly, the grant of the application is tainted with illegality. This matter deserves no further elucidation.

In view of all the foregoing, it is submitted that David’s estate would be unduly prejudiced by Charles’ acts. Interference with an easement is a form of trespass. Thus, David may ask the court to enjoin the obstruction of the easements. He may ask the court to nullify the variances and building permit so issued or have it order the removal of encroaching structures at the servient owner’s expense in case one has already been constructed.


  1. Roger Bernhardt, and Ann M.Burkhart, Real Property in a Nutshell, 2000.
  2. Jon W. Bruce and James W. Ely, Jr., The Law of Easements and Licenses in Land, 1988.
  3. Stephen A. Siegel, A Student’s Guide to easements, Real Covenants, and Equitable Servitudes, 1988.

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