August 17, 2018
Author: Andy Gabriel
Organization: McDonald Carano Wilson LLP
Drafting of Easements
Introduction:
What is an Easement?1
An easement is the right to use real property owned by a land owner for a specific purpose, which generally is not inconsistent with the rights of such land owner. An easement does not grant any title to the land to the easement holder, is not an estate in the land, and does not, without express rights to receive profits from the land, entitle the easement holder to any income from the land.2 However, it does create a property interest in the land and imposes a burden on the land subjected to the easement, as an encumbrance on title that runs with the land. Legal title remains in the land owner for all other purposes, subject to the easement. An easement is a non-possessory interest in the land of another, which entitles the owner of the easement to a limited privilege to use the other’s land. For reference, Exhibit A attached contains an index of the Nevada statutes most applicable to easements.
Some more common easement terms:3
Dominant estate – The property that enjoys the benefit of the easement.
Servient Estate – The property upon which the easement is located, or which is burdened by the easement.
Easement appurtenant – An easement that benefits an adjacent dominant estate. It attaches to the land permanently and benefits the dominant estate. An easement appurtenant requires different parcels of land with different owners. An easement appurtenant is a covenant that runs with the land, can only be used by the owner of the dominant estate, and cannot exist separate from the dominant estate. Easements appurtenant are transferred automatically when the servient or dominant tenement is sold to a new owner.
Easement in gross – An easement for use of a servient estate that is not appurtenant to any dominant estate and that does not benefit any other land. This type of easement is often personal to the holder and cannot be assigned. For example, a person may have an easement to enter another person’s land for the purpose of cutting and removing crops. Easements in gross may also be given for recreational use of land, such as for hunting or camping. If the servient estate is transferred, the easement is typically transferred with the property. However, the holder of the easement may have only a personal right, which cannot be assigned. For example, a power company may have the right to place power lines on a servient estate pursuant to an easement in gross. The power company could not transfer that easement to another person for another purpose.
Affirmative and negative easements - An affirmative easement is the right to use another’s property for a specific purpose, while a negative easement is the right to prevent another (the owner of the servient estate) from using their own property for what would otherwise be a lawful activity. Easements for views or light, that impose height restrictions on a person’s property, are negative easements for the benefit of a neighboring property (the dominant estate).
License – A personal property right to use another person’s property – usually for a limited period of time as well as for a limited purpose, and which does not create any real property right or interest in the property. However, courts sometimes find it difficult to distinguish between a license and an easement, although licenses are usually revocable, or set for a limited period of time, and non-assignable. A license confers a personal privilege, and does not run with the land.4
A. Two Party Easement Agreements or Grants
Easements create interests in real property, and generally must be in writing and recorded. An easement may be created by an express agreement, with the scope of the easement determined by the terms used to create it.5 In its simplest form, the owner of the servient estate grants an easement to the owner of the dominant estate, to enter upon or use the servient estate for a given purpose. The easement may be created by conveyance in a deed, whereby the seller grants to the buyer an easement over the seller’s property, or whereby the seller reserves an easement to use the buyer’s property.6 No particular language is required by Nevada statutes to grant an easement, but the intent of the grantor should be clear from the easement instrument. An easement may also be created by any other written agreement. A two party easement agreement should be executed by both parties, notarized, and recorded in the official county land records. As with any conveyance of land, the grantor must be the owner of the servient estate and must have legal capacity, and the conveyance must be in writing to satisfy the statute of frauds.7 It is possible for the holder of an easement to grant third parties the right to use their easement, if consistent with their easement and if such rights expire upon the expiration of the easement.8
Most easements identify a specific easement area on the servient estate. Ideally, the easement would include a description of the easement area that is sufficient to identify the portion of the servient estate burdened by the easement with some certainty. This may be accomplished by a surveyed metes and bounds legal description. However, it is not necessary to include a survey of the easement area. It may be identified my reference to an attached map or site plan, with the approximate location indicated. Or, it may be identified by reference to an existing property line, such as an easement “thirty (30) feet wide along the south boundary line” of the servient estate.
Generally, the easement holder has such rights to use the servient estate as are set forth in the written instrument that creates the easement. This may include any reasonable or necessary use. The scope of the easement may be expanded by the terms of the original grant, but the easement holder cannot overburden the servient estate by unreasonably increasing the burden contemplated by the easement agreement.9 The basic rules for determining the extent of an easement created by deed are set forth in Cox v. Glenbrook Co., 78 Nev. 254, 371 P.2d 647 (1962). The general rule is that “the extent of an easement created by conveyance is fixed by the conveyance”. Extrinsic evidence is not admissible for the purpose of interpreting clear and unambiguous terms. However, “(w)hen the width (of the easement) is not specified, the conveying instrument must be construed in the light of the facts and circumstances existing at its date and affecting the property, the intention of the parties being the object of inquiry.”10
In another case, the Nevada Supreme Court explained that the use may change, and still be consistent with the purposes of the easement:
[The owner of the servient estate] asserts that the easement, when reserved, was intended only to benefit the dominant tenement in its then agricultural use, and may not now be burdened by [the owners of the dominant estate] for domestic use. The reservation was not so restricted. It was simply for a road 23 feet in width. The use to which the road was to be put is not indicated by the documents, and the record may be read to show that the change in use, if a noticeable change at all, simply evolved along with the normal change in the character of the dominant tenement. The issue of burden upon the servient estate cannot be said to have been fully explored.11
In another case, based on a claimed right to distribute handbills on a sidewalk easement on the Las Vegas Strip, the Court concluded, “that the easement, by its express language, is limited to pedestrian uses of the sidewalk to travel from point A to point B. The language of the easement does not contemplate use by commercial businesses seeking to advance their own economic gains. The district court did not err in making a preliminary finding that the existence of the easement alone, without more, does not transform private property into a public forum for constitutional scrutiny.”12
And, use of an easement by the owner of the dominant estate is not exclusive. The owner of the servient estate may also use his land, for any purpose, as long as his use does not interfere with the rights of the easement holder. In some cases, the owner of the servient estate may be able to unilaterally relocate the easement, if possible without any detriment to the owner of the dominant estate. However, relocation of the easement may not be possible without the consent of the owner of the dominant estate if the easement agreement specifies the location and dimensions of the easement.13
A dispute may arise as to whether an easement is appurtenant or in gross. In such cases, the Court will look to the express language of the grant, and may conclude that the easement was intended to run with the land, and provide access across the servient property for the benefit of an adjoining property – even if there is ambiguity in the language of the grant. “Whether an easement is appurtenant or in gross ultimately is a question of the parties’ intentions, and the language of the instrument . . . . The law favors easements appurtenant, and if an easement fairly can be construed as appurtenant, it should be so construed.”14
B. Declarations and Reciprocal Easement Agreements
Express easements are typically found in Declarations of Covenants, Conditions, and Restrictions (“CC&Rs”) recorded to form a residential common interest community or commercial real estate project. See Exhibit “B” attached for an example. This is a Reciprocal Easement Agreement (“REA”) between two adjacent property owners, to provide cross access and parking between two commercial shopping centers. A real estate developer may record a Declaration of CC&Rs before subdividing and selling parcels of land within the development. CC&Rs and REAs typically both benefit and burden the subject land, run with the land, and thus are binding upon successors in interest.
C. Subdivision Map Easements
Easements may be required in connection with the subdivision of real property and can be created by recorded subdivision maps, in particular for utilities and roads. Utility easements may be “blanket” in nature, over the entire subdivision, but subject to future improvements made before the easement is used.Or, the subdivision map may designate a specific easement area.
NRS 278.372(9) Final map: Requirements and contents. The final map must show:
a. The definite location of the subdivision, particularly its relation to surrounding surveys.
b. The area of each lot and the total area of the land in the subdivision in the following manner:
(1)In acres, calculated to the nearest one-hundredth of an acre, f the area is acres of more or
(2)IN square feet if the area is less than 2 acres
(c) Any roads or easements of access which the owner intends to offer for dedication
(d) Except as otherwise provided in NRS 278.329, an easement for public utilities that provide gas, electric and telecommunication services and for any video service providers that are authorized pursuant to chapter 711 of NRS to operate a video service network in that area.
(e) Except as otherwise provided in NRS 278.329, an easement for public utilities that provide water and sewer services.
D. Other Means: Prescription, Necessity, Implied
(1) Prescription: An easement by prescription (or, prescriptive easement) is similar to acquiring land by adverse possession, except it creates a right to use the land rather than a claim to ownership of the land. As with adverse possession, the person claiming the easement must show that: (a) the easement is adverse or contrary to the interests, and the use is without the permission of, the owner of the land; (b) the use is open and notorious; and (3) the use is continuous and uninterrupted for the period of time required by state law (which is five (5) years in Nevada). Unlike an adverse possession claim, it is not necessary for the person claiming the easement to have paid the property taxes assessed against the land.15 (Because the person claiming the easement is not asserting ownership of the land.) While Nevada has codified by statute the requirements for adverse possession,16 there are no separate statutes defining the creation of an easement by prescription. However, many Nevada court cases have addressed prescriptive easement claims.
One California court succinctly described the difference between an adverse possession claim and a prescriptive easement claim:
[T]he technical terms “adverse possession” and “prescription” ... differ
from each other almost exclusively in the kinds of land interests
acquirable under the two processes. Adverse possession concerns itself
chiefly with the acquisition of an estate in fee simple absolute, but is a
term also applied to the acquisition of possessory interests of more
restricted duration. Prescription, on the other hand, concerns itself wholly
with the acquisition of what are called rights in the land of another, such
as easements. Thus adverse possession refers to title acquired by
continuous possession of another's land for the required statutory period of
time, while prescription generally refers to the right to use another's land
acquired by the use of same for the same period....(¶) Thus, the right to
use property of another gained by prescription is measured by the actual
use made of that property by the claimant, whereas the title obtained by
adverse possession is focused on the exclusive possession of the
premises.17
Easements by prescription necessarily impose a forfeiture on the servient estate, and are not favored by courts.18 If the same person owns the dominant and servient estates, and later transfers the servient estate, she cannot claim the period of time during which she owned both parcels as part of the five (5)-year period of use required to obtain a prescriptive easement over the servient estate.19
However, the “tacking” of time periods of use by successive owners of a dominant estate is acceptable to show five (5) years of continuous use.20
(2) Necessity: As explained by the Nevada Supreme Court: Although an implied easement arises by operation of law, the existence of an implied easement is generally a question of fact.” Jackson v. Nash, 109 Nev. 1202, 1208, 866 P.2d 262, 267 (1993). “An easement by necessity will generally be found to exist if two requirements are met: (1) prior common ownership, and (2) necessity at the time of severance.” Id. At 1209, 866 P.2d at 268. “A way of necessity arises from the ‘application of the presumption that whenever a party conveys property, he conveys whatever is necessary for the beneficial use of that property and retains whatever is necessary for the beneficial use of land he still possesses.’ Id. (quoting Daywalt v. Walker, 217 Cal.App.2d 669, 31 Cal.Rptr. 899, 901 (Ct.App.1963)).
The party who seeks to burden the property of another by way of necessity carries the burden of proof. Id. “In order for an easement by necessity to exist, both the benefited parcel and the burdened parcel must have been once owned by the same person.” Id. If such common ownership does not exist, there can be no easement by necessity. Id. at 1210, 866 P.2d 262, 866 P.2d at 268.21
As articulated by the Court in another case, “an easement by necessity exists if (1) there is prior common ownership of the land benefitted by the easement and the land burdened by the easement, and (2) the easement is reasonably necessary to use the land the easement benefits. . . . Easements by necessity are most often created where a possessor of land has no access to any public roadway except by way of passage through the servient estate.”22 The Court indicated that the proponent of the easement must show necessity at both the time the two estates were separate, and at the present time an action is brought to determine the validity of the easement. In this case, the proponent had access to two other public roads, so the easement was not necessary.
Easements by necessity result because under common law, it was assumed that when a person conveys property, he conveys whatever is necessary for the beneficial use of that property, but also retains whatever is necessary for the beneficial use of the land he continues to own. It is also required that the use of the servient estate be necessary by the dominant estate, and not simply convenient or beneficial.23
(3) Implied: By common law, an implied easement is created when the parties intended to create an easement but, for whatever reason, did not include it in a written instrument. This may commonly occur when the owner of a larger parcel of land subdivides the land into smaller parcels and transfers a smaller parcel to another person, while intending, as a matter of necessity, to retain the right to an easement on the transferred land. For example, when utility lines are located on the purchased parcel, and the seller needs to retain access to those lines to connect the improvements on his parcel to the utilities, an easement may be implied for such purpose. An implied easement may be created only in connection with a conveyance, when two parcels of land were at one time treated as a single tract, or owned by a common owner, where one part of the property had been subject to use by another part of the property, and is implied by such existing use if necessary for the use and enjoyment of one parcel of land. Implied easements are distinguished from easements by necessity in that implied easements are based on continuation of an existing use. By implication, the seller intended to reserve the easement in order to continue to use and enjoy the land retained. Easements by necessity are not dependent upon a prior use. However, implied easements are not favored by courts, since they are contrary to the requirements that an easement be in writing.24
(4) Easement by estoppel: May be created by a court if a seller of land represents to the buyer that an easement exists, and the buyer relies on the representation, even though no easement is included in the grant of the land or otherwise recorded in favor of the buyer’s dominant estate.25 Contrary to the requirements of the statute of frauds, an easement may, with applicable facts, be created by an oral agreement if there is sufficient partial performance by the holder of the dominant estate.26
E. Public Easements
A public easement grants an easement for a public use. Easements may be acquired by the government using its power of eminent domain in a condemnation proceeding.27 For subdivision map approvals, easements may be required by statute. In federal land grants, easements may be reserved for the use of the public, for rights of way and roadways, as well as for mineral extraction. The Nevada Supreme Court recently resolved issues arising from an eminent domain action brought by the City of Las Vegas to acquire a 40–foot–wide strip of real property from a private owner. Title to this property was originally acquired by the owner’s predecessor-in-interest through a federal land patent granted in 1956. The patent stated that the property “is subject to a right-ofway not exceeding 33 feet in width, for roadway and public utilities purposes, to be located along the boundary of said land.” The Court concluded that the federal land patent did create a 33-foot wide easement (which is identical to a “right of way”) which the City was entitled to use, based on the plain language in the patent. As such, the City's proposed use of the easement did not constitute a taking, because that use was within the scope of the easement granted by the patent.28 The Court also noted that, as a general rule, where the language of a public land grant is subject to reasonable doubt, ambiguities are resolved strictly against the grantee and in favor of the government. This is the reverse of the rule controlling the construction of grants or conveyances by private grantors.
NRS 321.355 Rights-of-way reserved to State for public access to other land open for public use.
1. Before any state land may be leased, exchanged, sold or contracted for sale,
the State Land Registrar, in consultation with the Department of Transportation
and with counties and local governments, shall designate any existing routes
over the land which the State Land Registrar determines to be necessary for
public access to any other land that is open to public use. If such a route is
designated, the land must be conveyed with a right-of-way and all rights of
access and abutter’s rights for the route reserved in the name of the State of
Nevada. Any right-of-way reserved pursuant to this subsection may, when
necessary as determined by the State Land Registrar and otherwise approved as
required by law, be used by a public utility pursuant to the requirements set forth
in NRS 322.050 and 322.060.
2. After the land or interest in the land is conveyed, if the route is determined
by the State Land Registrar, in consultation with the Department of
Transportation and with counties and local governments, to be no longer
necessary for public access to other land which is open to public use, the State
Land Registrar shall, subject to the provisions of subsections 3 and 4, release the
right, title and interest of the State in and to the right-of-way to the purchaser or
lessee of the land, his or her assigns or successors in interest.
. . .
In the Brooks case, the proponent of the easement also claimed a “residual easement,” over an abandoned public right of way that the City no longer uses, but which abutted his neighbor’s property. The Court did not recognize this easement, and by statute title to the land reverts to the adjacent property owner and the easement is destroyed. The Court also concluded that “abutter’s rights to an easement only exist in Nevada insofar as there is an easement by necessity that exists.”29 Because there was no easement by necessity, there was no easement based
In Summary:
A written express easement with unambiguous terms as to use and a clearly described easement area is ideal for creating an easement. But, don’t forget to record it: The written agreement which is the subject of this action was executed in November of 1957 by [the parties, one of whom, the owner of the purported servient estate] owned a large tract of land in Clark County and agreed to sell a portion of the land to [the other], with a third party . . . to be the lessee of a market [to be constructed] on the property. The record on appeal indicates that [the owner of the purported servient estate] wished to develop his [remainder] property as a shopping center, [and pursuant to the agreement, he] would not construct any buildings in excess of 50,000 square feet on his property adjoining the conveyed property for a period of twenty years. It was intended that the remainder of his property would be used by the parties as “joint parking privileges for the customers of the respective parties hereto.” The agreement was not recorded until August of 1976 although the deed to [the owner of the dominant estate] was recorded on February 6, 1958. [The owner of the claimed dominant estate] requested injunctive relief when [the owner of the purported servient estate] erected a fence between the properties in 1976, [arguing that] this agreement gave them an express easement on [the purported servient estate]. In the alternative, [the owner of the claimed dominant estate] claim that they acquired an implied or prescriptive easement or an irrevocable license on the land retained by [the owner of the purported servient estate] for purposes of parking.
We need not pause to determine whether the intent was to grant an easement or to provide appellants with a license. The lower court found respondent lessees [the owner of the purported servient estate] to be purchasers for value without notice of encumbrances on their property. See NRS 111.320, 111.325. See also Commercial Bank v. Pritchard, 126 Cal. 600, 59 P. 130, 132 (1899) (a lease is a conveyance); Cal.Civ.Code s 1214 (1954). As bona fide purchasers, respondents took their lease interests free of any right which [the owner of the claimed dominant estate] may have had through that instrument. Further, the record supports the trial court’s finding that any use of the property by [the owner of the claimed dominant estate] during the time respondents have been in possession was a permissive use. As such, [the owner of the claimed dominant estate] could not acquire an easement by prescription. Jackson v.Hicks, 95 Nev. 826, 829, 604 P.2d 105, 106 (1979).30
Termination of Easements
“Making easements is easy compared to remaking or terminating them. It is particularly easy when land is subdivided and access must be provided from some or all of the new parcels for ingress and egress and utilities. . . . The projections of the parties who create easements as to likely future advantages and costs may change in ways that were not anticipated, and the party who wants change will run into difficulty.”31 As Professor French points out, easements are often created by simple documents, they may last forever, they may become obsolete, and little thought is given to future changes that may require renegotiation or termination.32
A. By Agreement of Parties
It is difficult to terminate an easement without the consent of the owner of the dominant estate. However, just as an easement can be created by the agreement of the parties, it can also be terminated if all parties to the easement agree. (Or, in the case of a Declaration of CC&Rs, REA or similar instrument, by amendment with the approval of a sufficient number of property owners, as set forth in the original document.) The owner of the dominant estate would terminate and release the easement by written, recorded instrument, thereby extinguishing it. Or the dominant owner can transfer the easement by deed to the servient owner, whereupon the easement would terminate by merger.
B. By Merger of Estates
If the dominant estate and the servient estate are owned by the same person, the easement would terminate by “merger.” This is the result even if the common owner did not intend to terminate the easement, because a person cannot hold an easement over his own land, separate from his fee estate. The Nevada Supreme Court has applied the doctrine of merger to easements, holding that, “when one party acquires present possessory fee simple title to both the servient and dominant tenements, the easement merges into the fee of the servient tenement and is terminated” and, once an easement is extinguished by merger, it cannot come into existence again merely by severing the dominant and servient estates. Thus, the easement is not reinstated or revived if the owner later separates the two estates, by selling either parcel to another owner.33 Note that in Nevada, the same general principles govern both restrictive covenants and easements, with both automatically extinguished upon common ownership34
C. By Abandonment
If the owner of the dominant estate abandons his easement, the easement may be terminated. But, termination is not automatic, and is subject to a case by case analysis, including with regard to the length of time the easement has not been used and the intentions of the dominant estate owner. An express easement does not, by itself, end if not used.35 An easement holder may discontinue use for a reasonable period of time with the intent to resume use at a future date, as needed. Thus, if a railroad with an easement discontinues use of a rail line, it would not necessarily be found to have abandoned the easement. However, if it removes the tracks, this may be sufficient evidence of its intent to abandon the easement without any desire to resume use at a later date. These principles were articulated by the Nevada Supreme Court, as follows:
The loss of an easement by abandonment turns upon the intent of the
owner of the dominant tenement, which intention is manifested by the
circumstances of the particular case. Nonuse of the easement is evidence
of an intention to abandon it. This court, in Mallett v. Uncle Sam
Mining Co., 1 Nev. 188 (1865), stated at 204:
‘In determining whether one has abandoned his property or rights, the
intention is the first and paramount object of inquiry; for there can be no
strict abandonment of property without the intention to do so; . . .’
The testimony of the witnesses appearing at the trial supports the trial
judge's conclusion that the easement had not been abandoned. Although
the record shows that there may have been intervening periods when the
roadway had little if any use, the record does demonstrate that the
roadway has been used since 1931. From 1931 to 1941, [the owners of the
dominant estate] used the roadway to take care of chickens they had on the
[servient estate]. Later the road was used to feed livestock, and from 1961
to date the [owners of the dominant estate] have used the road for ingress
to and egress from their home, except for two brief periods when [the
owner of the servient estate] attempted to close the road. Thus the record
clearly shows that the easement has been used irregularly but continuously
since its inception. An easement once established, as in the instant case, is
presumed to continue unless there is a manifest showing of an intent to
abandon it. Goldfield Con. v. O.S.A. Co., 38 Nev. 426, 150 P. 313 (1915);
Cornell v. Gobin, 49 Nev. 101, 238 P. 344 (1925).36
If an easement holder has and exclusively uses an alternative means of access to his property, and stops using and maintaining a road easement provided for that purpose, this may evidence his intent to abandon the road easement. If the owner of the servient estate puts up a fence preventing the use of an easement, and the owner of the dominant estate does not object, this may evidence her intent to abandon the easement. A court may look for more than an express statement by the owner of the dominant estate to abandon the easement, such as some affirmative action or inaction that evidences his or her intent.
For public easements:
NRS 278.480 Vacation or abandonment of street or easement: Procedures, prerequisites and effect; appeal; reservation of certain easements; sale of vacated portion.
- . . . any abutting owner or local government desiring the vacation or abandonment of any street or easement owned by a city or a county, or any portion thereof, shall file a petition in writing with the planning commission or the governing body having jurisdiction.
- The governing body may establish by ordinance a procedure by which, after compliance with the requirements for notification of public hearing set forth in this section, a vacation or abandonment of a street or an easement may be approved in conjunction with the approval of a tentative map pursuant to NRS 278.349.
- A government patent easement which is no longer required for a public purpose may be vacated by:
(a) The governing body; or
(b) The planning commission, hearing examiner or other designee, if authorized to take final action by the governing body, without conducting a hearing on the vacation if the applicant for the vacation obtains the written consent of each owner of property abutting the proposed vacation and any utility that is affected by the proposed vacation.
D. Other Means
(1) Expiration: If the term of an easement is not expressly limited, it does not expire. However, by its express terms, an easement may be created for a specified period of time, and would expire upon the end of that time period. An easement may also be created to expire upon the occurrence of a specified event, such as upon the discontinuance of the use of the dominant estate for a particular purpose. In either case, the easement would expire automatically upon the end of the time period, or the occurrence of the event.37 However, if the easement is ambiguous as to the intent of the grantor as to how the occurrence of the event is defined, a dispute may ensue that requires court intervention to interpret the instrument.
(2) Nonuse of a Prescriptive easement: The owner of a servient estate burdened with a prescriptive easement may terminate the easement by the same means used to create the easement: (a) use that is adverse or contrary to the interests of the easement holder (such as fencing off the easement area) without the permission of the easement holder; (b) the use is open and notorious; and (3) the use is continuous and uninterrupted for the period of time required by law. In an applicable case, the Nevada Supreme Court explained:
An easement may be extinguished by prescription-that is, use of the
servient tenement by the possessor of it which would be privileged if the
easement did not exist, provided the use is adverse to the owner of the
easement and such adverse use is, for the period of prescription,
continuous and uninterrupted. Rest.Prop. s 506 (1944). The period of
prescription for extinguishing an easement is the same as that fixed by
local law for obtaining one. In Nevada, that period is five years. Stix v.
LaRue, 78 Nev. 9, 11, 368 P.2d 167 (1962); Howard v. Wright, 38 Nev.
25, 29, 143 P. 1184 (1914). Although extinguishment by prescription is
not specifically pleaded in this case, the servient owner . . . does claim fee
title to the 23 foot strip by adverse possession, the elements of which, in
large part, coincide with prescription. It is for this reason that we mention
extinguishment by prescription. It seems to us that the facts already
related concerning use of the way by the [owner of the dominant estate]
and their predecessors prima facie denies loss of their easement by
prescription.
We have mentioned the counterclaim of [the owner of the servient estate]
through which she asserts fee title to the 23 foot strip by adverse
possession. It is her contention that full title to the 23 foot strip and the
entire parcel was acquired . . . because she had lived on the property since
1931, improved it, paid the taxes assessed and claimed it as her own. . . .
This contention would carry weight if the possession of the parcel by [the
owner of the servient estate] was hostile to the [owners of the dominant
estate]. Actual and peaceable possession is not enough. The possession
must be hostile in its inception; actual, peaceable, open, notorious,
continuous and uninterrupted for the statutory period. McDonald v. Fox,
20 Nev. 364, 368, 22 P. 234 (1889). Moreover, the evidence needed to
show hostility must be stronger in a case between relatives than that
required in a case between strangers. Lanigir v. Arden, 82 Nev. 28, 409
P.2d 891 (1966). [The owner of the servient estate] moved onto the
parcel in issue in 1931 . . . Thereafter, [the owners of the dominant estate]
used the road over that parcel without objection by their grantees [who
were their son and daughter-in-law]. . . . In these circumstances hostile
possession is denied as a matter of law. . . .38
(3)End of the Necessity: With an easement by necessity, if the necessity that created the easement ends, the easement may also end. For example, if a new public street is put in adjacent to a dominant estate that was previously “land locked,” the owner of the servient estate may seek to terminate a driveway easement across his property that allowed the owner of the dominant estate to reach a more distant public street.
(4) Foreclosure of Deed of Trust. If an easement is recorded after a Deed of Trust, it may be terminated by the foreclosure of the Deed of Trust, as a subordinate lien on the property.
(5) By Condemnation. An express easement is an interest in land and therefore may be taken and is compensable in an eminent domain action.39 Note the following limitations on condemnation of easements and compensation of the owner of the dominant estate:
For eminent domain purposes there is a difference in treatment between
positive easements such as rights of passage and use, restrictive covenants,
and the implied negative easements of light, air and view. The
extinguishment of a positive easement by public acquisition gives rise to
compensation. The leading [U.S. Supreme Court] case, established the
right to compensation under the Fifth Amendment to the United States
Constitution and has served as a guide to state court decisions. In Nevada,
such an easement is expressly subject to condemnation for public use, and
compensable. Similarly, we have ruled that the extinguishment of a
restrictive covenant by public authority for public use is compensable),
since such a covenant is in large measure identical with the express grant
of a positive easement. Each normally is created by a legal instrument.
The recording of a deed of a positive easement makes it binding upon all
subsequent owners of the servient estate in favor of the owners of the
dominant estate; and the recordation of restrictions imposes upon all
subsequent owners the burden of compliance that is enforceable by the
other landowners in the subdivision. Additionally, . . . the identity of
landowners who may have a compensable right can readily be ascertained
from the public records. We are now urged to treat the claimed implied
negative easement of light, air and view in similar fashion. . . .
As we see it, the fallacy of this argument is the underlying assumption that
there exists in Nevada the doctrine of implied negative easements. As
heretofore noted, the easement for which compensation is claimed in this
case is the implied easement of light, air and view. We are not here
concerned with a negative easement of light, air and view created by
express covenant. Nevada has expressly repudiated the doctrine of implied
negative easement of light, air and view for the purpose of a private suit
1 See Law.com; 25 Am Jur 2d, Easements and Licenses §1.
2 See 25 Am Jur 2d, Easements and Licenses §4 regarding “profits a prendre.”
3 See: http://legal- dictionary.thefreedictionary.com/easement
4 25 Am Jur 2d, Easements and Licenses §3
5 Brooks v. Bonnet, 124 Nev 372, 185 P. 3d 346 (2008).
6 NRS 111.105: Conveyances of lands, or of any estate or interest therein, may be made by deed, signed by the person from whom the estate or interest is intended to pass, being of lawful age, or by the person’s lawful agent or attorney, and acknowledged or proved, and recorded, as directed in this chapter.
7 NRS 111.205(1): No estate or interest in lands, other than for leases for a term not exceeding 1 year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall be created, granted, assigned, surrendered or declared . . . unless by act or operation of law, or by deed or conveyance, in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by the party’s lawful agent thereunto authorized in writing.
8 25 Am Jur 2d, Easements and Licenses §15
9 Breliant v. Preferred Equities Corporation, 109 Nev. 842, 858 P. 2d 1258 (1993).
10 Sievers v. Zenoff, 94 Nev. 53, 573 P.2d 1190 (1978).
11 Brooks v. Jensen, 87 Nev. 174, 483 P.2d 650 (1971).
12 S.O.C., Inc. v. Mirage Casino-Hotel, 117 Nev. 403 at 409, 23 P.3d 243 (2001).
13 St. James Village, In. v. Cunningham, 125 Nev. 2011, 210 P. 3d 190 (2009).
14 Peake Development, Inc. v. R.B. Properties, Inc., 2014 WL 859215 (Nev.)
15 See Nehring v. Weir, 2011 WL 5868418 (Nev.), implying that a separate claim is possible for a prescriptive easement where a claim for adverse possession fails as a result of the claimant not having paid taxes on the land. See also Michelsen v. Harvey, 107 Nev. 859, 822 P. 2e 660 (1991).
16 See NRS 11.130 (an actual continued occupation of premises, under a claim of title, exclusive of any other right, but not founded upon a written instrument, or a judgment or decree) and NRS 11.150 and it is shown that the land has been occupied and claimed for the period of 5 years, continuously, and that the party or persons, their predecessors and grantors have paid all taxes, state, county and municipal, which may have been levied and assessed against the land for the period mentioned, or have tendered payment thereof.
17 Thompson v. Dypvik, 174 Cal.App.3d 329, 338-339, 220 Cal.Rptr. 46, 50-51 (1985).
18 25 Am Jur 2d, Easements and Licenses §45.
19 25 Am Jur 2d, Easements and Licenses §49.
20 25 Am Jur 2d, Easements and Licenses §70.
21 Spittler v Routsis, Slip Copy, 2013 WL 3324284. The claimant failed to show his property was landlocked, and the easement was denied.
22 Brooks v. Bonnet, 124 Nev 372, 185 P. 3d 346, at 349 (2008).
23 25 Am Jur 2d, Easements and Licenses §§35; 37.
24 25 Am Jur 2d, Easements and Licenses §§23; 38.
25 25 Am Jur 2d, Easements and Licenses §17.
26 25 Am Jur 2d, Easements and Licenses §21.
27 See City of North Las Vegas v. 5th & Centennial, LLC, 2014 WL 1226443 (Nev.)(March 21, 2014), finding the City must pay pre-condemnation damages for announcing a proposed major super-arterial roadway that would require condemnation of a significant amount of property to secure required rights of way, even when the condemnation was not commenced.
28 City of Las Vegas v. Cliff Shadows Professional Plaza, 293 P.3d 860, 129 Nev. Adv. Op. 2 No. 55877. Jan. 31, 2013.
29 Brooks v. Bonnet, 124 Nev 372, 185 P. 3d 346, at 350 (2008).
30 Jones v. Bank of Nevada, 96 Nev. 661, 615 P.2d 242 (1980)(emphasis added).
31 French, Susan F., Making Easements is Easy; Remaking Them is Hard, Probate & Property, Vol 27 No. 5 (Sept/Oct 2013) at p. 34(hereafter, “French”).
32 French, at 35.
33 Breliant v. Preferred Equities Corp., 109 Nev. 842, 846–47, 858 P.2d 1258, 1261 (1993).
34 Glenbrook Club v. Match Point Properties (2011), citing Meredith v. Washoe Co. Sch. Dist., 84 Nev. 15, 17, 435 P.2d 750, 752 (1968) and Restatement (Third) of Property: Servitudes § 1.1(2) (2000).
35 French at 36.
36 Jensen v. Brooks, 88 Nev. 651 at 653, 503 P.2d 1244 (1972)
37 25 Am Jur 2d, Easements and Licenses §108.
38 Brooks v. Jensen, 87 Nev. 174, 483 P.2d 650 (1971).
39 State v. Wells Cargo, Inc., 82 Nev. 82, 411 P.2d 120 (1966)