Most of us are familiar with easements. The power company may have an easement for overhead power lines. A neighbor might have an driveway easement to cross a portion of your property or to share a driveway. Lakeshore properties may have granted easements allowing others to walk across the property and enter the lake. At the University of California at Santa Cruz, certain cattle ranchers had grazing easements for their farms over the grasslands on the lower 1,000 acres. The City of Neenah has the right to maintain Riverside Park as long as no alcohol is consumed there.
Pop Quiz: (Answers near the end of the post)
Do you know which of the following statements correctly describes an easement or easement law?
1. Easements are found with other Candies in Aisle 6 of Walgreens
2. Harry, next door, told me I can dig in his garden any time I want.
3. I signed a contract allow Jones Sign to put a Billboard 10 feet from my back lot-line.
4. I don’t know my neighbor, but I’ve been hunting quail on his land for 25 years.
5. My weekender neighbor doesn’t know, but my Dad and I have been fishing off his pier for 55 years.
6. If Curmudgeon’s snowplow breaks down and blocks your shared driveway, you can drive around it.
7. Wisconsin’s law of easements can be traced back to 450 BC.
A easement is an irrevocable legal right in the property of another, called the subservient estate. A easement usually consists of a right the easement holder can exercise over a specific part of the subservient estate. . The easement holder may be an individual or, if the easement belongs with some other property, the owner of the dominant estate. The easement can be limited by time, place, or any specific condition that may (or will) occur in the future. An easement holder can do what is necessary to maintain the easement rights. Sometimes maintenance includes rights to go outside the easement to prevent damage. The owner of the subservient estate cannot unreasonably interfere with the easement holder’s rights.
Frequently, the subservient estate grants an easement in writing to a person or a subservient estate. If the writing is recorded, the easement holder can enforce his or her rights against all persons (except a buyer at a foreclosure sale of a mortgage created before the easement). How an easement is written is crucial. Say you have an pedestrian easement to cross the eastern 10 feet of Curmudgeon’s lakeshore property. You put on your bathing suit, grab your towel and go for a swim. When you enter the water, Curmudgeon, looking unhappy as usual, dials 911 and tells the County Sheriff you are trespassing. Who is right?
The final answer is: . . . Curmudgeon. The right to enter the water is a riparian right. Wisconsin law holds that no easement includes riparian rights unless the easement says so in writing. Your easement says nothing about the lake or the right to enter the water.
Suppose Curmudgeon plants a row of hostas across the easement? You can remove them. Suppose Curmudgeon parks his boat and trailer across the easement, blocking it completely, and lets the air out of the tires. If your property is in England, you can simply go around it. In about 1857, the Lord Chief Baron of the Exchequer, Sir Jonathon Frederick Pollack, decided the case of Hawkins v. Carbines, 27 LJ Exch. 44. Lord Pollack held that the owner of a narrow right of way had the right deviate from the easement only to the extent necessary to turn his horse and buggy around.
In the U.S. generally, and Wisconsin particularly, the right of deviation is restricted to public rights of way. You can deviate onto the subservient estate if a street is blocked, two moving trucks are parked side by side in the alley in back of your house or if a tree falls across the beach easement. (This is important, in Malibu beach access easements allow paraparazzi to snap pics of movie stars lounging on the back decks of their beachfront property). So in Wisconsin, you can’t go around the easement. You can only move the boat if Curmudgeon does not object. Otherwise, you need to go to court to enforce your easement.
There three are kinds of easements that can be obtained without consent: easements of necessity, implied easements and prescriptive easements (easements gained by adverse possession). If there is no way, no matter how inconvenient or expensive to get from your cottage to a public street, you may be able to have a court grant an easement of necessity. This allows you to walk or drive across a convenient, not unreasonable right of way the court will determine. But, like any access easement, you cannot use it for utilities such as water, sewer, electricity, gas or (gasp!) cable. If you have an access easement or an easement for ingress, egress and/or regress, you do not have the right to place utility lines over, along or under the easement.
Suppose you Curmudgeon sells off a quarter acre, lake view ,cottage with a winding half mile drive down to the lake. The drive leaves your property and goes over Curmudgeon’s land. You may have an easement by implication to use the road. Courts can award an easement by implication for the use of a visible, longstanding improvement which has been used to benefit your property.
Finally, suppose you buy the quarter acre and take a shortcut to the Lake whenever Curmudgeon takes his daily nap or runs down to the post-office for his mail and a few pints with locals. Curmudgeon would never permission. You never asked for permission. After 20 years, you are entitled a prescriptive easement to walk down to the lake via the shortcut. Prescriptive easements are limited to the rights you actually used for 20 years and to the place(s) you used them.. Since you have been walking, the rules are simple. No cars. No entering the lake unless you went regularly went swimming. No fishing unless you frequently took dinner out of the lake
And now for the rest of the story. You must to more than laugh and tell your friends about how you got away with it. Within another 30 years, you have to file a record of your claim or lose it. Clients who tell me they have gone down to the Lake for 45 years can have a prescriptive walking easement. If clients tell me Grandpa started taking Mom to the Lake in 1958 and never filed an affidavit, then they will be able enjoy the lake view, but not the lake shore.
Now go back and take the quiz again. The answers are: (1) No (2) No (3) Yes. Jones should record it as well. (4) This is a quail hunting easement. Your deer hunting friends are out of luck. (5) No. Too bad, because it is so easy to record an affidavit announcing your easement rights. (And so illegal, if you know you don’t have any). (6) a shared driveway may or may not be an easement. Either way, you can only drive around the snowplow in England, where you must remember to kept to the left. (7) Yes. Roman laws were kept secret until 450 BC when the first partial descriptions of the laws of Rome were published as the ten tables (revised as the twelve tables in 449 BC). Table VII outlined legal definitions and procedures for real property.
Now you know a little more about easements.
If you are wondering about your easement rights - or if you are considering buying a property - it’s time to see a lawyer. And never, ever make an offer on a property with an easement – or one that might have an easement – unless you include the right to review and approve any easements.
For more information or advise please call Ken Friedman at 920-231-1500