Easements: Prohibiting Interference by the Servient Owner

By Alan R. Romero

The parties to an easement may specify which part of the servient land the dominant tenant may use, how the dominant tenant may use that land, the purposes for which the dominant tenant may use the land, and which land the easement benefits. If the dominant tenant uses the servient land in a way not authorized by the easement agreement, he has trespassed on the servient land.

But often the parties aren’t specific about some or all of these aspects of the easement they create. In fact, when the easement is implied or prescriptive, there’s no express agreement defining the scope of the easement at all.

In such cases, courts must figure out the extent of the rights owned by the easement holder and determine when the easement holder goes too far and trespasses on the servient land.

The dominant tenant has the right to use the servient land in some way. That means he has the right to prevent others from unreasonably interfering with his use of the servient land. For example, the owner of a right-of-way can enjoin the servient owner from installing a locked gate across the way or building improvements that obstruct some of the width of the easement.

Similarly, the owner of an easement to install and maintain pipes underground could have a court enjoin the servient owner from building something on top of the easement that would make it impossible or too difficult to access and maintain the pipes.

However, the dominant tenant doesn’t own the servient land and doesn’t have the right to exclude people generally. That means that the servient owner can use the servient land in any way that doesn’t unreasonably interfere with the easement.

For example, the owner of land subject to an easement for underground pipes can still plant grass and play badminton on the surface of the easement, even though the dominant tenant would have the right to tear up the ground when needed to access the pipes.

Because the servient owner retains all the rights to use the land that she hasn’t given away to the dominant owner, she can also transfer those rights to others.

In fact, unless the easement says otherwise, she can even give an easement to another company to maintain pipes in the same area, as long as the presence of the other company’s pipes doesn’t unreasonably interfere with the dominant owner’s access to its own pipes.

Of course, if the easement agreement says that only the dominant tenant has the right to install pipes in that location, then the servient owner has given up the right to use that land in that particular way.

An easement agreement that states that no one else may have an easement to use the same land in the same way is considered exclusive. However, easements are exclusive in this way only if they say so.