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Imply an Easement by Prior Use

In property law, an easement is implied by prior use when an owner has been using part of her land in an easement-like way to benefit another part of her land and then transfers one of those parts of her land to another person. The party claiming an easement implied by prior use must prove the following:

  • Severance of unity: One of the parties has divided her land and transferred part of it to the other party.

  • Prior use: Before and up to the time the grantor transferred part of the land to the grantee, the grantor had been using one of the parts to benefit the other part in a way that would be an easement if the parts were separately owned. For example, a water line passes under the land to a house on the land.

    Sometimes an easement implied by prior use is called a quasi-easement because it arises only when the grantor has already been using part of her land to benefit another part in the way easements do. But before severance, you wouldn’t call that use an easement because an owner can’t have an easement on her own property.

  • Reasonably necessary use: The prior use was reasonably necessary to the enjoyment of the benefited part of the land. If the grantee claims an easement implied by prior use, the grantee generally only has to prove that the use was beneficial and convenient to his portion of the severed land.

    For example, if the grantor had been using a driveway across her land for access to the rear of a building that she subsequently sold to the grantee, use of the driveway over the grantor’s land is probably “reasonably necessary” for the grantee if it would cost a significant amount of money to build a new access driveway across his own land to a public street.

    On the other hand, if the grantor claims to have reserved an easement implied by prior use over the grantee’s land, many courts require the easement to be strictly necessary for the use and enjoyment of the grantor’s retained land, not just beneficial and convenient.

    The grantor could’ve expressly reserved an easement in his deed to the grantee, and often his deed has warranted that he conveys title free from such easements, so courts are more reluctant to find an implied easement retained by the grantor.

  • Apparent use: At the time the grantor severed ownership and transferred part to the grantee, the prior use was apparent to the parties.

  • An easement is implied in these circumstances because if enjoying one part of the land already depended on using another part of the land in some way, the parties surely meant for that use to continue, even though they didn’t think to say so in their deed. But if the parties weren’t even aware of the prior use, then they must not have intended to create an easement.

    Even though this requirement is usually expressed as “apparent” use, the essential requirement is that the use was known to the parties, or at least reasonably discoverable.

    For example, underground water and sewer pipes might not seem “apparent” because they aren’t visible on the surface, but courts have held them to be easements implied by prior use when the plumbing indicated that there must be pipes passing somewhere underground and the parties could reasonably discover where they were located.

  • Continuous use: The prior use must have been continuous up until the time of severance rather than merely occasional or temporary. Only in these circumstances would we presume that the parties intended for the use to continue as an easement after severance.

    Some courts don’t list continuous use as a requirement — the requirements that the use be apparent and reasonably necessary are enough to ensure that the parties must have intended for the use to continue.

If prior use does imply an easement, the dominant tenant owns an easement just as if the parties had expressly created the easement in the deed. The easement continues even if circumstances change and the easement is no longer reasonably necessary for use of the dominant tenement.

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