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8. The court should decide for
Last year, the buyer conveyed the back 40 acres to a doctor. They had discussed the right-of-way over the owner's land to the road, but the buyer's deed to the doctor made no mention of it. The doctor began to use the right-of-way as the buyer had, but the owner sued to enjoin such use by the doctor.
An owner owned 80 acres of land, fronting on a town road. Two years ago, the owner sold to a buyer the back 40 acres. The 40 acres sold to the buyer did not adjoin any public road. The owner's deed to the buyer expressly granted a right-of-way over a specified strip of the owner's retained 40 acres, so the buyer could reach the town road. The deed was promptly and properly recorded.
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An easement appurtenant is one that benefits the dominant estate and «runs with the land» and so generally transfers automatically when the dominant estate is transferred. An appurtenant easement allows property owners to access land that is only accessible through a neighbor's land.
Conversely, an easement in gross benefits an individual or a legal entity, rather than a dominant estate. The easement can be for personal use (for example, an easement to use a boat ramp) or commercial use (for example, an easement to a railroad company to build and maintain a rail line across the property). Historically, an easement in gross was neither assignable nor inheritable, but commercial easements are now freely transferable to a third party. They are divisible but must be exclusive (the original owner no longer uses it and exclusive to easement holder) and all holders of the easement must agree to divide. If subdivided, each subdivided parcel enjoys the easement.
The basic ways of creating an easement are by express grant, implication, and prescription. An easement by express grant is one that is recorded and signed by the grantor and must comply with all the formalities of a deed. An easement by prescription is similar to adverse possession. An easement by implication is created by operation of law rather than a written instrument. There are three types of easement by implication: (i) an intended easement based on a use that existed when the dominant and servient estates were severed; (ii) an easement implied from a recorded subdivision plan; and (iii) an easement by necessity.
B is correct. The easement described in the facts is an easement appurtenant — one that benefits a specific piece of land. An easement appurtenant will automatically run with the land, and after being recorded for the first time does not need to be re-identified in any deeds accompanying later conveyances.
A is incorrect. An easement by necessity is a type of easement by implication that is created when the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a public road or utility line. When this happens, a right-of-way absolute necessity is created by implied grant over the lot with access to the public road or utility line. If there had not been an express easement, there would have been an easement by necessity created by the facts in this scenario. However, because an express easement was created, there is no need to find an easement by necessity.
C is incorrect. An easement appurtenant was created here, not an easement in gross.
D is incorrect. An easement appurtenant automatically transfers when the dominant tenement is transferred.