Easements: Increasing the Burden on the Servient Land

The dominant owner may trespass by using the easement in ways that increase the burden on the servient land. An express easement may specify the extent to which the dominant owner may burden the servient land, such as specifying the size of vehicles or number of trips per day allowed on a right-of-way or noting the number and size of underground pipes allowed in an easement.

Any use of the easement beyond such express limits is a trespass.

Of course, if an easement doesn’t specify such limits, the court must try to figure out what the parties intended or would’ve agreed to. Here are some factors the court may consider:

  • The character and severity of the increased burden on the servient land: The servient tenant expressly or implicitly agreed to allow the dominant tenant to use her land in some way and thereby to burden her own use of the land to some extent.

    The servient tenant also reasonably could expect that the use would change over time. But the servient owner presumably wouldn’t have expected or agreed to a use that would significantly interfere with her own ability to use and enjoy her property.

  • The benefit to the dominant tenant: Courts may weigh the burden on the servient tenant against the benefit to the dominant tenant to decide whether a particular increase in use is reasonable.

  • The parties’ agreement: Here are some ways the courts try to figure out the parties’ intent for express, implied, and prescriptive easements.

    • If the easement is express, a court considers whether the parties’ agreement indicates their intention in any relevant way. The court also looks at the consideration paid and the circumstances in which the parties agreed to the easement, which may suggest an intention about the permissible extent of use.

    • If the easement is implied, a court considers the circumstances that imply the easement to help decide whether a more intensive use of the easement is within the scope of what the parties would’ve intended.

    • If the easement is prescriptive, the court considers whether the servient tenant would’ve objected to the more intensive use if it had occurred during the prescriptive period.

  • Foreseeability: If the use is more intensive in ways that were natural and foreseeable, it’s more likely to be within the scope of the easement.

  • Past use of the easement: The parties’ past conduct may suggest their original understanding about limits to use of the easement.

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