Understanding easements for real property.


Easement over land

A property owner frequently gives or receives an easement in connection with his land. There are several types of easements, and it is useful to understand the differences.

An easement should be examined in two ways. First, what is the purpose of the easement? Second, how can the easement be obtained?

Let us look at the more common forms.

The Utility easement.

This is the most common one, and it is created by agreement of the parties. Because just about everyone needs utilities, almost all land is subject to some type of utility easement.

The easement may be for electricity, gas, water, cable, or other services. Usually, these run along the edge of the property so as to limit interference with the use of the land.

Most utility easements are non-exclusive. This means that the landowner can still use the land that is subject to the easement as long as he does not interfere with the utilities.

These are almost always drafted by the utility company for the landowner to sign and are recorded in the land records.

Access easements.

Agreements for ingress and egress (i.e., the coming and going of vehicular and foot traffic over the landowner’s property) is another common form of easement.

These easements are also usually non-exclusive. This allows someone to travel over the land but allows the landowner to use that area as well. But, they can take other forms depending upon the needs of the parties.

These agreements are drafted by one of the parties or their attorneys for the landowner to sign. They are then filed in the land records.

Prescription easements

An easement by prescription is similar to the concept of adverse possession.

For example, assume a person regularly travels across land for 10 years without the express permission of the landowner. If that person otherwise meets all of the elements of adverse possession (read here), then that person may have obtained an easement by prescription and the right to continue traveling across the land.

But, because there is no written agreement with the landowner, usually a court will have to declare the legal existence of the easement.

(For more on prescriptive easements, read the decision of the Mississippi Court of Appeals in Thornton v. Purvis, No. 20180928, April 13, 2020.)

Easement by necessity.

This is probably the least common type. It is an easement the law will create because a person needs it to be able to properly use his land.

Here is an example. Assume a landowner owns 20 acres and there is only one road giving access to the land.

Next, assume the landowner divides the property into two 10 acre sections. He sells the section with the road to Party A. Next, he sells the other section to Party B.

In this situation, Party B cannot access his 10 acres without crossing over the land of Party A.

The law states that Party A must allow Party B to use as much of Party A’s land as is reasonable and necessary for Party B to have ingress and egress to his own land.

Again, this is one that the courts will have to recognize if Party A disputes the easement.

If you purchase land, be sure to ask the seller if he owns any adjacent land that might give rise to an easement by necessity over your land.

“Private eminent domain”*

What if you are landlocked but cannot obtain an easement by necessity because your land did not come out of a larger tract as described in the preceding section of this post? In that situation, Section 65-7-201 of the Mississippi Code may provide relief.

Section 65-7-201 states, in part:

When any person shall desire to have a private road laid out through the land of another, when necessary for ingress and egress, he shall apply by petition, stating the facts and reasons, to the special court of eminent domain created under Section 11-27-3 of the county where the land or part of it is located, and the case shall proceed as nearly as possible as provided in Title 11, Chapter 27 for the condemnation of private property for public use.

Note that if you file such a petition and win, you will have to pay the other property owner damages for the loss of land, as well as his costs and expenses.

*Name courtesy of Kevin Null, Esq.

If you have a question about easements, call the Panter Law Firm at 601-607-3156 for a consultation.