An “easement” is a legal right to use a certain piece of land for a specific purpose. It is the right to go on the land of another person and make limited use of the land. There are certain rules relating to the creation of these legal rights, to the termination of an easement, and to their scope.
Easements are usually classified as “Easements Appurtenant” or as “Easements in Gross.” An easement is appurtenant when it is attached to a land, and benefits the owner of such land in his/her use and enjoyment of the land. An “Easement in Gross” is one when in the creation of it, it is intended to benefit a person rather than the owner or possessor of land.
Dominant and Servient Tenements
A “tenement” is a parcel of land. To understand these legal rights, one must understand “Dominant Tenements” and “Servient Tenements.” A “Dominant Tenement” is the land whose owner is benefited by the legal right. A “Servient Tenement” is the land whose owner is burdened by the easement.
Implied and Express Easements
Easements may be “implied” or “express.” An “express” one is one that is created in writing which meets certain statutory requirements. The legal right may be “implied” if at the time of a conveyance one part of the land is being used for the benefit of another part of the land, and the use is : (i) apparent; (ii) continuous for a certain period of time; and, (iii) the use is reasonably necessary to the enjoyment of the dominant parcel of land.
A prescriptive right arises when a parcel of land is used for a certain purpose for a certain period of time and the use is “open, hostile, notorious and continuous” as those words have been defined in “adverse possession” cases by Arizona courts.
A prescriptive right may be extinguished (terminated) in several different ways. It may be extinguished intentionally or unintentionally. Thus, a conveyance of land may have the effect of terminating the right when the person making the conveyance did not intend to do so.
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