Talk:Easement

From Wikipedia, the free encyclopedia

	Law Portal This article is within the scope of WikiProject Law, an attempt at providing a comprehensive, standardised, pan-jurisdictional and up-to-date resource for the legal field and the subjects encompassed by it.
B	This article has been rated as B-Class on the assessment scale.
Mid	This article has been assessed as Mid-importance on the assessment scale.

Contents 1 Need for an extensive clarification 2 Prescription 3 Railways? 4 Prescription and Adverse Possession 5 Product advertising by Towermeister

[edit] Need for an extensive clarification

There are many aspects of this article which not only do not apply to jurisdictions such as the UK; for example the very concept of an easement being attached to a single piece of land (as opposed to two; the dominant and servient tenements), the diametric opposites of adverse possession and prescription, the nature of negative easements etc. I have no idea whether these concepts are correct in US law, but they are certainly poorly stated here. I suggest tagging this article for clarification. 129.67.126.125 07:36, 18 May 2006 (UTC)

At the moment I cannot see how much of this article is meant to be US only and how much is meant to be general. To pick two points: in England and Wales an easement is always private (if I have the term right); and adverse possession is the very opposite of prescription, not like it at all as is implied by the article.

Could someone explain how things have developed in the US, and which of these things are US only. At the moment the article is very POV indeed, but gives no sign of being so. Francis Davey 19:57, 28 July 2005 (UTC)

Was wondering exactly the same myself. Wonder if it may not be better to flag it on the systemic bias pages? — KayEss | talk 14:33, 14 August 2005 (UTC)

Well, I've had a go at trying to qualify some of what is said, but there are vast tracts which are unsources descriptions of rules about easements. Can we please try to go from the particular to the general in these law pages. At the moment, US lawyers write a lot of stuff about the US as if it was generally true and imply historicity to novel innovations in the US. Its then impossible for me to sort out what is and is not meant to be about the US alone. I know how things work in my jurisdiction and am trying to learn about others, but its hard work. Francis Davey 09:25, 26 October 2006 (UTC)

I'm going to go ahead and add info. on floating easements. Bearian 19:28, 23 April 2007 (UTC)

[edit] Prescription

Worse -- the article implies that an easement may be gained by a process somewhat akin to adverse possession, but surely this is exactly wrong? An easement by prescription is based on a presumption of consent, not adverse occupation. This is an important distinction I have relied on in some cases I have dealt with. Certainly this is the basis of lost modern grant and long user categories of prescription. Is this not true throughout the common law world? Francis Davey 19:33, 1 September 2005 (UTC)

Isn't a right-of-way based on historical usage essentially an easement gained by adverse possetion? Toiyabe 18:51, 3 December 2005 (UTC)

Short answer: no. Long answer: prescription is a legal fiction. It assumes that, because someone has been using something a long time they must have either (1) been granted it back before time immemorial; or (2) been granted it a while back, but we've "lost" the grant recently. Adverse possession requires adversity. Not the same doctrine. Maybe in the US the two have merged, it wouldn't be all that surprising. Francis Davey 21:18, 3 December 2005 (UTC)

Not sure I see the difference, but IANAL. I always thought that adverse possetion also hinged on implied consent. That's why it must be "open and notorious" - the owner can't pretend he dosen't know what's going on, so therefore by doing nothing about it for a long period of time he is agreeing that the property belongs to the squatter. A right-of-way through your property that you were not compensated for also seems to be adverse - if nothing else it almost certainly decreases the value of the property. Toiyabe 22:25, 3 December 2005 (UTC)

Francis Davey is correct. According to the 6th edition of Black's Law Dictionary, an easement by prescription requires "immemorial or long-continued enjoyment". However, it also adds that "the uninterrupted use of the land must generally be for the same statutory period of time as for adverse possession". The possession of an easement by prescription is usually not adverse. However, Barron's Dictionary of Real Estate Terms (6th Ed.) adds that, once easement by prescription has been acquired, the use of the land may continue despite the protests of the land's titleholder. Davemcarlson 01:33, 26 May 2006 (UTC)

Having dealt with easements for over 30 years in the United States, I can categorically state that in Arizona the statutes provide that prescriptive easements are created with all the same elements of adverse possession, except "hostile." I was under the impression that this was common in most states. User: M F Cheney, 27 December 2005

I would say you are right except for the "hostile" part. A prescriptive easement must be hostile. The only element that lacks is "exclusiveness." Regardless, adverse possession should not even be discussed in the easement section because they are completely different and I am going to remove it altogether. TheThinWhiteDuke 20:18, 10 July 2006 (UTC)

To try to clarify a bit: if I occupy land and obtain by adverse possession, the status of the landowner is immaterial. However, the doctrine of "lost modern grant", requires that the owner of the servient tenemant has the power to grant, that would be impossible if they were (for example) a minor or patient. The doctrine of "long user" can be rebutted by showing that the easement cannot, as a matter of fact, have existed since time immemorial. Francis Davey 17:15, 28 December 2005 (UTC)

ladyrob - new wiki user here - Australia. I cannot comment on anything regarding the legalities of easements but would appreciate anyones's comments on the following: I own what we call, ibn this country, 'a registered easement' i.e it is actually 'signed & sealed' as part of my land title, it benefits my land and burdens the land over which it is registered. This is a privately owned easement. I own the right to use it, I can sell this right with the sale of my land but I do not own the land over which the easement is registered. ( I am a lay person - so excuse my lack od legalese.) This easement is for carrying water pipelines from my pump on my land to the watercours at the bottom of the hill from which watercourse I draw water for domestic use. A Easement Agreement defines my rights and all the things I can do on this easement. For some years now the owner of the land burdened by the easement has maintained a padlocked and bolted gate at one end and a solid timber flood wall at the other across the access points to this easement - it is locked in his property most of the time. On making the Agreement I agreed that I would "Give reasonable notification of intent to enter the easement - except in an emergency where no notification is required". The Granto interprets this as- I must ask his permission and he will unlock the gate when and if he sees fit and will decise whether or not there IS an emergency at any stage...so the easement is locked. I cannot get in to maintain my pipelines or for any other purpose. I cannot traverse the easement from end to end and access the watercourse. QUESTION - Does anybody know if I may, by law, demolish the gate and the wall to gain access? If I may erect a fence the full length of the easement on land defined as the easement area? THis, of course, without having to go to the expense of taking the Grantor to Court. Thanks if anyone is able to respond. ladyrob —Preceding unsigned comment added by Ladyrob (talk • contribs) 06:48, 19 January 2008 (UTC)

[edit] Railways?

What about the "easements" sometimes advertised on UK railways when some service problem means that bus companies will accept train tickets? An example of that from National Rail (repeated here as it's only temporary) is this:

Easements: Travel West Midlands will accept Central Trains tickets on all reasonable bus routes

Is this the same as the term "railroad easement" mentioned but undefined in this article? Loganberry (Talk) 10:42, 30 September 2005 (UTC)

jigga

Why does a search for a wayleave re-direct to the easement page? A wayleave is a different animal to an easement and there are clear distinctions between the two. A re-direct from one to the other is misleading, particularly as they are similar in nature. It would seem more appropriate to draw attention to the distinction between the two!

[edit] Prescription and Adverse Possession

I've deleted the ridiculous pejorative "NB" at the top. I've also removed the equally ridiculous dispute tag. No one has pointed out any factual errors, only that some statements don't apply universally, which the article so states, to wit: "Easement concepts differ substantially from country to country, and in the U.S. from state to state."

Prescriptive easement and adverse possession are not "diametric opposites." Though related, in that both involve the loss of ownership rights due to owner's failure to exercise same, the article states in numerous places that the two are different.

Instead of being lazy and sticking a tag up, why don't one of you self-styled experts make an effort to improve the article by helping to distinguish between the article's concepts and your own? J M Rice 20:22, 21 August 2006 (UTC)

[edit] Product advertising by Towermeister

I afraid this article might have some advertising put here by Towermeister a long time ago. It may take some effort to clean up. (QUINTIX (talk) 21:34, 18 February 2008 (UTC))