Easements are nonpossessory interests in land of another, entitling the easement holder to limited use of the other’s land. There are a number of legal issues and practical considerations in the law of easements in the state of Oregon. See Luckey v. Deatsman, 217 Or 628, 634, 343 P2d 723 (1959) . We have also included the opportunity to download a sample Grant Of Easement And Maintenance Agreement at the bottom of this article.
There are a number of terms that are helpful to understand for those considering easement matters. This guide to the law of easements in Oregon is intended to help provide some basic information to get you started.
Leases: Leases are possessory. An easement holder may construct something in an easement, thereby arguably possessing it, without the right losing its character as an easement.
Licenses: A license is a privilege personal to the holder. See Brown v. Eoff, 271 Or 7, 530 P2d 49 (1975) . Licenses are permissive, and they normally specify the beneficiary, the allowed use, and a time period. Although a license is usually revocable, a written license granted “for so long as” a stated condition exists may be assigned (if not expressly forbidden), so that the license can operate much like an easement. An easement can be created only by grant, implication, or prescription, whereas a license can be created by parol, or by the licensor’s actions. An attempt to create an easement that fails to comply with the statute of frauds may operate only to create a license.
Profits: A profit a prendre is a right to participate in the profits of the land, or a right to take a part of the produce of the land. An easement carries no right to participate in the profits of the soil charged with it. A profit a prendre cannot be created by parol, only grant. It may be either appurtenant to other land (if held by reason of ownership of another parcel) or held in gross. Examples: right to take timber, right to graze, and the right to fish or hunt on or over the land of another.
Covenants Running with the Land: Covenants restrict the use of land or the location or character of improvements thereon. They may be perpetual and therefore may have the effect of an easement. Because covenants normally do no specify a dominant estate, and because they are limitations on the manner in which one may use his or her own land, they are not true easements. A common example is the building and use restrictions in a subdivision’s CC&R’s (“covenants, conditions & restrictions”).
In the state of Oregon, there are a number of types of easements of which property owners should be aware. They include:
Right of Way: The most common type of easement, it provides for access to the dominant estate over the servient estate.
Utility: Allows for wires, cable, or pipes to be strung over, placed upon, or buried under the servient estate. Utility easements held by commercial enterprises, which normally own no land benefited by the easement, are not appurtenant but are held in gross.Other easements include (but are certainly not limited to) those providing for drainage, undisturbed slopes, wildlife corridors, view, condominium common-element easements ( ORS 100.520 ), solar energy ( ORS 105.880 ), and wind energy ( ORS 105.900 ).
Within each of the reasons why someone might need to define or understand an easement are various types of easements.
Affirmative Easements: Authorize the doing of certain acts that, if no easement existed, would give rise to a right of action.
Negative Easements: Preclude the servient owner from the doing of an act which he or she would be entitled to do if no easement existed. These easements usually are created by covenant, agreement, CC&R declaration, e.g., a setback requirement.
Appurtenant Easements: Create a right to use the servient estate for the benefit of the dominant estate. They run with the land, irrespective of the identity of the owners of either estate. They cannot be conveyed apart from dominant estate, but they can be extinguished by execution of a written release to the owner of the servient estate, or by implication via abandonment. Easements created by implication and by necessity are by nature appurtenant. For an easement to be classified as appurtenant, it must bear some relation to the use of the dominant estate. Unless expressly limited, an appurtenant easement normally exists for the benefit of the entire dominant estate, not solely for any particular part thereof.
Easements in Gross: Run in favor of person, natural or legal, rather than in favor of a dominant estate. If an easement in gross is merely personal, it normally cannot be assigned, however, commercial easements in gross are freely transferable. Whether an easement is appurtenant or in gross is to be determined by the intent of the parties as gathered from the language employed, considered in the light of surrounding circumstances. Because easements in gross generally are not favored in law, an easement will not be presumed as personal when it may fairly be construed as appurtenant to some other estate. Thus, if an easement is in its nature an appropriate and useful adjunct of the land conveyed, having in view the intention of the parties as to its use, and there is nothing to show that the parties intended it to be a mere personal right, it will be deemed an easement appurtenant and not an easement in gross. See Menstell v. Johnson, 125 Or 150, 266 P 891 (1928).
Exclusive/Non-exclusive Easements: Unless there is evidence of contrary intent, the grantee of an easement acquires a nonexclusive right, and the grantor retains the right to use the property or permit others to use it in any manner not inconsistent with the grantee’s rights. Any exclusive easement must be expressly stated in the instrument, otherwise it will be construed to be nonexclusive.
Express Grant: A grant of an easement should be drawn and executed with the same formalities as a deed to real estate. An easement is created if the owner of the servient estate either enters into a contract or makes a grant intended to create a servitude that complies with the Statute of Frauds or falls within an exception to the Statute of Frauds. The intent to grant an easement must be plain enough so that no other construction can be placed on it. An acknowledgment in a deed of the existence of an easement is not equivalent to an intent to create an easement. Language stating that a conveyance is subject to an existing easement, indicating that the grantor wishes to exclude the easement from warranties of title, does not create an easement.
Express Reservation: This is probably the most common method of easement creation but it needs to be done carefully. A conveyance of a strip of land that does not limit the use or in some way qualify the interest conveyed may be construed as a conveyance of the fee. For example, “I hereby convey Blackacre to A, reserving to myself and my successors a perpetual right-of-way easement over Blackacre for the benefit of Whiteacre . . .”). See Bouche v. Wagner, 206 Or 621, 293 P2d 203 (1956) . See also ORS 93.120 , which states, “Any conveyance of real estate passes all the estate of the grantor, unless the intent to pass a lesser estate appears by express terms, or is necessarily implied in the terms of the grant.”
Easements by Implication: An easement by implication is not expressed by the parties in writing, but arises from the existence of facts surrounding the transaction (e,g., where the land over which the easement is sought to be implied was once part of the same parcel that is now landlocked). An easement may be created by implication in favor of a grantor or a grantee of the fee, but it can only arise in connection with a conveyance. It is based on the theory that whenever someone conveys property, he or she intends to include in the conveyance whatever is necessary for its beneficial use and enjoyment and to retain whatever is necessary for the use and enjoyment of the land retained. An implied intent may be rebutted by evidence of an agreement or understanding, at or prior to the conveyance, that the easement was not to pass. In Oregon, implied easements are disfavored, Cheney v. Mueller, 259 Or 108, 118-119, 485 P2d 1218 (1971) , and are established only in accordance with a seven-factor test.
Easement by Necessity: ORS 376.150-376.200 govern easements by necessity. The statutory scheme may be used only if the claimant is unable to gain access to the property. ORS 376.180(9). The process requires a petition listing certain information (ORS 376.155), service of the petition on the landowners and a report to the county (ORS 376.160), the right of the landowner to answer (ORS 376.170), an order granting or denying the petition and the landowner’s right to appeal (ORS 376.175), and certain conditions that any established way of necessity shall meet (ORS 376.180). Note that ORS 376.175(2)(e) requires the court to “[d]irect the petitioner to pay costs and reasonable attorney fees incurred by each owner of land whose land was subject to the petitioner’s action for a way of necessity under ORS 376.150 to 376.200.”
Easement by Prescription: A prescriptive easement requires that the claimant establish by clear and convincing evidence that his use was: 1) for the prescriptive period (10 years under ORS 12.050); 2) open, notorious, and adverse to the rights of the servient owner; and 3) continuous and uninterrupted according to the nature of the use. See Thompson v. Scott , 270 Or 542, 546, 528 P2d 509 (1974) . By showing open, continuous and uninterrupted use, a claimant may give rise to a presumption that the use was adverse to the servient owner, who may then disprove the adversity by showing the use to be permissive. Doyle Miling v. Georgia Pacific, 256 Or 271, 278, 473 P2d 135 (1970) . As to the elements of open and notorious use, see Beers v. Brown, 204 Or App 395, 129 P3d 756 (2006) . There, defendants tried to assert prescriptive easement as a defense against nuisance, trespass, and negligence claims arising from golf balls hit from their driving range landing on plaintiff’s real property. Because golf balls only occasionally landed on plaintiff’s property, the court held that defendants failed to meet the open or notorious requirements over the statutory period.
Just because a document is identified and recorded as an easement does not mean that an effective grant of rights has occurred. For instance, it is not uncommon for a lay landowner contemplating sale to draft and record a document ahead of time that purports to create access over one part of his land for the benefit of another part. Because he owns the fee of the entirety, he has not created an effective easement. Yet the document’s recordation can create a false sense of authority when it has no such effect.
This problem can arise another way: Because an easement is an interest in the land of another, once the easement owner acquires an interest in the servient estate, which includes the right to make the same use of the land as permitted under the easement, a merger occurs and the easement is extinguished. See Witt v. Reavis, 284 Or 503, 587 P2d 1005 (1978) . The easement can survive, however, if ownership of the two interests is in the same person but in different capacities, if the interest is merely a security interest, or if the interest acquired is temporary (merger could cause suspension of interest rather than extinguishment). The principles discussed below might also provide ways to preserve easement rights in the face of a finding that an “express easement” never came into existence or has been lost via the doctrine of merger.
While this is not intended to be a comprehensive checklist for use in drafting easements, the following are important terms to consider including in an easement document:
Scope of Easement: The intended purpose of the easement determines its scope, so clarity in describing the purposes in the granting instrument is essential. If ambiguous, the dominant owner’s use will be limited to what is reasonably necessary to accomplish the intended purpose (as determined by the fact-finder), and the servient owner remains free to use the burdened property in ways that do not unreasonably interfere with dominant owner’s use. See, e.g., D’Abbracci v. Shaw-Bastian, 201 Or App 108, 120-22, 117 P3d 1032 (2005) (servient owner able to relocate road within 60-foot easement and to place encroachments elsewhere within easement because dominant owners’ access to their properties not thereby substantially affected); Ericsson v. Braukman, 111 Or App 57, 62-63, 824 P2d 1174 (1993) (servient owner may place gate across easement if necessary to preserve his reasonable use of the property). If the dominant estate will, or might be, subdivided, state how the easement is to be apportioned. See example following outline as to many of the foregoing and following principles.
Location of Easement: Again, clarity is essential. The employment of a surveyor is recommended (as is the attachment of the resulting map as an exhibit to the granting instrument). Without clarity and without an actual location of the easement on the ground, the servient estate may be subject to “blanket easement,” which can cloud the title to that estate, and may fail to provide the dominant estate with insurable access.
Exclusivity: Clarify who may use the easement (dominant owner plus invitees? Owners of lots resulting from partition or subdivision of the dominant estate?). Specify the rights retained by the servient owner to use or make additional grants. Consider providing for dispute resolution mechanisms for conflicts among users.
Consideration/Reciprocity: Because the extent of consideration given for an easement (including reciprocal rights granted by the claimant) can affect whether the easement will be given a broad or narrow construction, it is wise to state the consideration with particularity.
Succession: Specification of whether the easement is appurtenant (“runs with the land”) or is in gross is of course essential.
Construction, Maintenance and Repair: Again, the parties are well-served if the drafter thinks through these issues and provides as clear, comprehensive, flexible, fair, and self-initiating mechanisms as can be afforded. In the absence of repair and maintenance terms in the granting document, the parties are remitted to the statutory scheme found at ORS 105.170-185.
Tort Liability (indemnity, insurance, and taxes): These topics should be provided for with the same level of care as they are in a lease, keeping in mind that additional flexibility might be required if it is likely that others not yet identified may use a non-exclusive easement and be made subject to the granting document’s terms.
Termination: If you are the servient owner, consider whether the easement really needs to be perpetual. If not, an express time limitation is the easiest way to extinguish an obsolete easement. Consider also whether to include easement-termination as a remedy for a dominant owner’s misuse of the easement or material breach of the easement agreement. (Although a servient owner’s non-judicial exercise of the remedy would not remove the easement from the record, its expression in the granting document would increase the likelihood that a court would impose it in egregious cases.).
The prevalence of easements in the state of Oregon and their nonpossessory nature creates a unique set of considerations when creating, interpreting, and implementing an easement.
While we hope this guide has provided some basic information to aid in your understanding, it is important to work with an experienced real estate attorney to help you avoid costly mistakes in the future. Book a consultation with us today!
The information provided here does not constitute legal advice. Hutchinson Cox makes neither express nor implied warranties regarding the use of this material. The reader should always seek competent legal advice as the facts of every case vary.
