Fence across utility easement

Jump to navigation Jump to fence across utility easement For spiral easements on railroads, see Track transition curve. It is “best typified in the right of way which one landowner, A, may enjoy over the land of another, B”. Easements are helpful for providing pathways across two or more pieces of property, allowing individuals to access other properties or a resource, for example to fish in a privately owned pond or to have access to a public beach. An easement is considered as a property right in itself at common law and is still treated as a type of property in most jurisdictions.

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The rights of an easement holder vary substantially among jurisdictions. Modern courts recognize more varieties of easements, but these original categories still form the foundation of easement law. An affirmative easement is the right to use another’s property for a specific purpose, and a negative easement is the right to prevent another from performing an otherwise lawful activity on their property. For example, an affirmative easement might allow land owner A to drive their cattle over the land of B. A has an affirmative easement from B. Conversely, a negative easement might restrict A from blocking B’s mountain view by putting up a wall of trees.

A has a negative easement from B. As defined by Evershed MR in Re Ellenborough Park Ch 131, an easement requires the existence of at least two parties. For example, the owner of parcel A holds an easement to use a driveway on parcel B to gain access to A’s house. Here, parcel A is the dominant estate, receiving the benefit, and parcel B is the servient estate, granting the benefit or suffering the burden. A private easement is held by private individuals or entities.

A public easement grants an easement for a public use, for example, to allow the public an access over a parcel owned by an individual. In the US, 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.

Historically, an easement in gross was neither assignable nor inheritable, but commercial easements are now freely transferable to a third party. A floating easement exists when there is no fixed location, route, method, or limit to the right of way. Furthermore, “a floating easement becomes fixed after construction and cannot thereafter be changed. Some legal scholars classify structural encroachments as a type of easement. In the United States, an easement in gross is used for such needs, especially for permanent rights. An access easement provides access from a public right of way to a parcel of land.

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