5.2 Easements, Licenses, and Rights-of-Way

Easements and Use Rights on the FS Exam

An easement is a nonpossessory right to use land owned by another for a defined purpose. It does not transfer possession of the land itself. FS easement questions describe roads, utilities, drainage, access to a landlocked parcel, shared driveways, pipelines, or overhead lines. The issue is rarely just whether an easement exists — you must identify its type, how it was created, whether it runs with the land, and how the surveyor should depict it.

A right-of-way can mean either the right to pass across land or the strip of land subject to that right. The term is used loosely in records, so read the instrument. A public highway right-of-way, a private access easement, and a utility corridor have different ownership and use implications. Do not assume the fee owner changed simply because a right-of-way is shown — many rights-of-way are easements over land the original owner still holds in fee.

A key follow-up question is whether the right-of-way conveys fee title to the strip or only an easement over it; railroad and highway corridors are often easements, and when the use ends the strip can revert to the underlying fee owner rather than passing to the public.

Every easement involves two estates. The dominant estate holds the benefit; the servient estate bears the burden. Keeping that pair straight is the foundation for the rest of this section — most easement errors on the exam come from reversing which parcel is benefited and which is burdened.

Appurtenant vs. In Gross — Dominant and Servient Estates

The key classification is appurtenant versus in gross. An appurtenant easement benefits a dominant estate and burdens a servient estate: Parcel A holds an access easement over Parcel B. Because it attaches to the dominant land, it passes automatically with Parcel A when A is sold, even if the deed does not mention it. An easement in gross benefits a person or entity rather than a parcel — utility easements are the classic example — and a personal easement in gross does not necessarily transfer when the holder conveys other property.

Creation language sets the direction of benefit. An easement can be granted to another party or reserved by a grantor when land is conveyed. If a deed conveys Parcel A but reserves a driveway easement over it for the retained Parcel B, then B (the retained parcel) is the dominant estate and A is burdened. Slow down and label dominant and servient before answering — the exam frequently tests this direction.

How Easements Are Created and Terminated

Note that both implied easements and easements by necessity require prior common ownership of the two parcels — that is the recurring exam hook. An easement by necessity arises when a severance from common ownership leaves a parcel landlocked.

Easements terminate several ways. Merger ends an easement automatically when the dominant and servient estates come under one owner — you cannot hold an easement over your own land. Release is a written relinquishment to the servient owner. Abandonment requires intent to abandon plus an overt act manifesting it — mere non-use, however long, is not abandonment. Easements by necessity end when the necessity ends; others end by expiration of a stated term or by condemnation.

Licenses vs. Easements

A license is permission — allowing a neighbor to cross a field during construction. It usually creates no interest in land and is revocable. A long-standing use that began with permission does not become adverse. On the exam, an answer that treats a casual, permissive accommodation as a recorded, permanent easement is almost always wrong. The best FS answer values clarity: state the source, show what can be located from the record, note what is observed in the field, and flag ambiguities for title or legal review.

One related interest is the profit a prendre (or profit), a nonpossessory right to take something from another's land — timber, gravel, minerals, or game. Like an easement it is an interest in land, not mere permission, and it can be appurtenant or in gross; unlike an easement, its purpose is removal of a resource rather than passage or utility placement.

Finally, distinguish the scope and width of an easement from its existence. A grant of "a right of way" without a stated width raises a scope question: the holder is entitled to a width reasonable for the intended purpose but cannot unilaterally widen or relocate the corridor, and the servient owner may use the burdened strip in any way that does not unreasonably interfere. Surveyors document the located width, the apparent use, and any encroachment so scope disputes resolve on evidence.