11.1 Easements: Types, Creation, Scope & What the Plat Must Show

What an easement is

An easement is a nonpossessory right to use another's land for a limited purpose. The land burdened is the servient estate; land benefited is the dominant estate. The servient owner keeps every use that does not unreasonably interfere with the easement.

How easements arise

1. Express grant or reservation. An easement is an interest in land, so it needs a signed writing meeting the Statute of Frauds (§ 15-3-1), recorded to protect against later purchasers (§ 89-5-1). A grant gives the easement to another; a reservation keeps one for the grantor when land is conveyed. A grant that does not locate the easement, such as "a transmission line across Section 12," is usually fixed by the location actually built and accepted. It generally cannot then be moved unilaterally.

2. Implied from prior use. When one owner uses part of a tract for the benefit of another part, in a way that is apparent and continuous, and then conveys one part without mentioning an easement, an easement may be implied. The usual requirements are unity of title followed by severance; a use that was apparent, continuous, and in place before severance; and reasonable necessity for enjoying the dominant part.

3. Necessity. When a conveyance leaves a parcel with no legal access, the law may imply a way of necessity across the grantor's remaining land. It requires unity of title and strict necessity at severance, and it generally ends when the necessity ends.

4. Statutory private way of necessity (§ 65-7-201). Where there was no common grantor, a landlocked owner may petition the special court of eminent domain of the county where the land lies (§ 11-27-3) to have a private road laid out. The court, sitting without a jury, decides whether the application is reasonable, and the proceeding follows the eminent domain procedure. The petitioner pays the damages awarded to the landowner and all costs of the proceeding. Since 2003, these petitions go to the special court of eminent domain, not the board of supervisors.

5. Prescription. Use of another's land can ripen into an easement after ten years, the same period as adverse possession (§ 15-1-13), if it is open and notorious, continuous and uninterrupted, and adverse under a claim of right, not permissive. It must usually follow a definite route. Mississippi courts treat the proof requirements like those for adverse possession, so expect to need clear and convincing evidence. Permissive use, such as "you're welcome to use my road," does not ripen unless the permission is clearly repudiated. Prescription does not run against the State or its subdivisions (Const. § 104; § 15-1-51).

Scope, relocation, and overburdening

• Scope follows the grant or the use. An express easement is measured by its terms. An implied or prescriptive easement is measured by the use that created it, plus normal evolution such as wagons becoming cars.
• Overburdening. An appurtenant easement serves its dominant tract. Using it to serve other land later added by the dominant owner, or changing its character substantially, can be enjoined.
• Relocation. Once an easement's location is fixed by grant or by use, neither party should move it alone. Relocation should be done by agreement in a recorded instrument.
• Maintenance. The easement holder may enter to maintain and repair the easement reasonably, without enlarging it.

What the plat must show (Rule 7.3)

• Item 16: "All public and private rights-of-way or easements which are observed, adjoining, or crossing the land surveyed and pertinent to the survey." If abutting streets or street rights-of-way are not physically open, a note must say so.
• Item 15: visible encroachments with their extent.
• Item 9: sources and discrepancies. List the recorded easement instruments relied on and any conflict between the record and the ground.
• Easement surveys themselves are in the boundary–route–easement–lease category. Their corners are monumented unless one of the Rule 7.1 exceptions applies: an easement adjacent and parallel to boundary lines surveyed with it, or a temporary easement.

Practice notes. Show recorded easements with their widths and recording references. Show visible evidence of possible unrecorded rights, such as worn drives, poles, pipeline markers, and manholes, with a note that no recorded instrument was furnished. Whether an unrecorded easement exists by implication or prescription is a legal question. The plat's job is to record the facts that bear on it.