Easements and Rights-of-Way: A Primer

What is an Easement?

An easement is a non-possessory right to use another’s land, in general or for a specific use, and obligates the landowner not to interfere with the uses authorized by the easement. See Restatement (Third) of Prop.: Servitudes § 1.2 (Am. Law Inst. 2000). Pennsylvania has long recognized “the right of a grantor of land to reserve an easement over the land conveyed for his use.” Piper v. Mowris, 466 Pa. 89, 95 (1976) (citing Baptist Church in the Great Valley v. Urquhart, 178 A.2d 583 (Pa. 1962); Lauderbach-Zerby Co. v. Lewis, 129 A. 83 (Pa. 1925)); see also Held v. McBride, 3 Pa. Super. 155, 158-59 (1896) (stating “[i]t is settled law in Pennsylvania that an owner of land may arrange it as he pleases, doing no injury to others, and that any ways or other privileges which he may provide for the necessary or convenient use of the different parts of the land . . .”). An easement may be created by written agreement pursuant to the Statute of Frauds or by implication, necessity, or prescription. Morning Call, Inc. v. Bell Atlantic-Pennsylvania, Inc., 761 A.2d 139, 142 (Pa. 2000).

There are two types of easements: appurtenant easements and easements in gross.

Appurtenant Easement: Appurtenant is defined as the rights or obligations of an easement that are tied to ownership or occupancy of a particular unit or parcel of land. Restatement (Third) of Prop.: Servitudes § 1.5 (Am. Law Inst. 2000).  An appurtenant easement exists between two parcels known as the servient tenement (the property that gives the easement) and the dominant tenement (the property that benefits from the easement). See Lindenmuth v. Safe Harbor Water Power Corp., 163 A. 159, 160-61 (Pa. 1932); see also Kent's Run P'ship v. Glosser, 323 B.R. 408, 422 (W.D. Pa. 2005). The use of the easement must bear relation to the dominant tenement. Id. at 161. An appurtenant easement “runs with the land” meaning the easement can “conceivably last forever” automatically passing the benefit or burden of the easement to successors of the parcels. Brady v. Yodanza, 425 A.2d 726, 727 (Pa. 1981); see also Restatement (Third) of Prop.: Servitudes § 1.5 cmt. a (Am. Law Inst. 2000).

An example of an appurtenant easement is having access across your neighbor’s land (the servient tenement) so that you, the owner of your property (the dominant tenement), can drive across your neighbor’s land to access a public road.

Easement in Gross: An easement in gross, unlike an appurtenant easement, is an easement that has no dominant tenement. Lindenmuth, 163 A. at 160. Additionally, the benefit or burden of an easement in gross is “not tied to ownership or occupancy of a particular unit or parcel of land.” Restatement (Third) of Prop.: Servitudes § 1.5 (Am. Law Inst. 2000).  Instead, there is only a parcel that it burdened by the easement (the servient tenement) and typically a person or a party benefits from the easement. See Kent's Run P'ship, 323 B.R. at 422. Furthermore, easements in gross do not “run with land;” rather, they are transferred by assignment or delegation. Restatement (Third) of Prop.: Servitudes § 1.5 cmt. b (Am. Law Inst. 2000). 

An example of an easement in gross is an easement to a utility company to run a power line across a servient tenement. The utility company, as opposed to a parcel, is the benefited party.       

What is a Right-of-Way?

The oldest easement recognized by law is a right-of-way. Shaffer v. Baylor's Lake Asso., 141 A.2d 583, 587 (Pa. 1985). More specific than a general easement, a right-of-way is a type of easement that gives someone the right to travel across property owned by another person. See, e.g., Id. (providing an example of a right-of-way easement: a footpath across a neighbor's property). However, a right-of-way easement does not arise through simply detouring through your neighbor’s property. Under Pennsylvania law, to establish a right-of-way easement “more is required than an occasional use for some purposes, or on some extraordinary occasions.” Trexler v. Lutz, 118 A.2d 210, 211 (Pa. Super. Ct. 1955) (citing Esling v. Williams, 10 Pa. 126, 128 (1848)). Rather, a party claiming privilege to a right-of-way must show that the right-of-way across another’s property “was granted for the benefit of his property, that the easement exists, and that it continues to provide the benefit to the dominant tenement contemplated by the grantor.” Woodlawn Trustees, Inc. v. Michel, 418 Pa. 398, 403 (1965).