Posted by: Archipelago Law in Uncategorized on February 7, 2022

With the current real estate boom, potential buyers should be sure to conduct their due diligence before buying, otherwise they may be sharing their newly acquired land with unwanted visitors.  During a title search, title companies should identify any potential adverse interests in the property, including but not limited to easements.  Easements provide an interest in land to another person or property.  That interest may be the right to use a portion of your land for a specific limited purpose.  Many property disputes arise between dominant (those who benefit from an easement) and servient (those who are burdened by an easement) property owners resulting from ambiguous language or a simple lack of understanding of easement law.  Without limitation, a servient estate would bear an unreasonable burden; meanwhile, amplified use would make identifying the scope of the easement impossible and render the property unmarketable.  

Legally, the scope of an easement is restricted to what the parties intended when the easement was created. However, when the parties have not clearly described the scope of the easement, the rights of easement holders and the extent to which others can utilize the servient property becomes difficult to identify, often resulting in costly litigation.

Express Easements

The holder of an express easement may only utilize the servient estate within the scope allowed by the terms of the easement language.   If an express easement is in anyway ambiguous or the purpose of the easement is not specifically provided, courts will seek to ascertain the presumed intent of the parties by examining the circumstances surrounding the execution of the deed or contract.  The courts have identified certain criteria when examining the circumstances surrounding the conveyance such as: the relation of the parties, the nature and situation of the dominant and servient property, and the apparent purpose behind the grant.  Taking into consideration the specific circumstances surrounding the conveyance, the Court will determine the appropriate scope of use allowed by the dominate estate holder, or the size, location, and extent of the easement on the servient estate.

Implied Easements

Certain easements, not specifically described and granted in the instruments of conveyance, may be implied by the circumstances attending the conveyance of property.  Implied easements arise from inferences and circumstances surrounding the division and conveyance of land. The four circumstances most frequently causing implied easements are: (1) by continued and longstanding adverse use of another’s land; (2) strict necessity existing at the time of the grant; (3) quasi easements existing on the land prior to division and conveyance; and (4) amenities shown on a subdivision plan used to convey one or more lots. Implied easements do not have language of creation to look to when determining the scope of the easement because the easement was not created with express language; therefore, actual intent of the parties is not a viable method to determine the scope of an easement acquired by implication. 

  • Prescriptive Easements

This concept of a prescriptive easement allows the servient landowner to claim an easement by proving the elements of adverse possession. However, an easement by prescription only grants the dominant estate owner an easement without ousting the servient owner from possession.  Generally, prescriptive easements are construed narrowly and may be utilized only in the manner or character of the burden imposed during the prescriptive period. 

The physical extent of a prescriptive easement will generally be only as wide as the purpose or purposes for which the holder of the easement undertook the actions that led to the creation of the easement. The dimensions of the easement cannot be expanded to accommodate a future change in circumstances and is strictly limited to the actual extent of the usage during the period of adverse possession.  For example, if a landowner continuously utilized a pathway on an adjacent property openly and without permission of the landowner for the statutory period, they would have a valid claim for a prescriptive easement over the confines of that pathway.

When there is a conflict regarding expansion of use, a Court will ascertain the limits of the expanded use weighing the prior use during the prescriptive period against any later changes in the use that interfere with the enjoyment of the servient estate by its current owner. For example, where an easement has been used for vehicular access, the mere increase in vehicle access would not overburden the easement.  A prescriptive easement is limited in dimensions to the actual extent of the usage during the prescriptive period; however, the scope of use may be increased or decreased as long as it remains consistent with the use at the time of prescription.

  • Easement by Strict Necessity

An easement by necessity is created when the grantor sells a landlocked lot out of a larger parcel and access to the lot sold can only be achieved with an easement across what is or was the remaining land of the grantor.  A Court typically finds an easement by necessity when a lakefront owner sells the portion of their land between the lake and the road, completely cutting off their own access to the lakefront land.  As a rule, strict necessity, and not mere convenience, is required.  As a result of necessity, without the recognition of an implied easement, an actionable trespass must occur for a landowner to access their property.

Where an easement by implication is created based on necessity, the scope of the easement is strictly limited to the scope of the necessity, whether it be for the required use or the physical size and extent of the easement. An easement by necessity is not limited to needs at the time of creation.  An easement by necessity is meant to meet the reasonable needs, present and future, of the dominant estate.  Where the necessity varies over time, the scope of an easement may change to fulfill the full reasonable enjoyment of the servient estate for any lawful and reasonable use.

  • Quasi-Easements

In Maine, an implied quasi-easement, known as an easement by prior use in alternate jurisdictions, arises when a landowner conveys a parcel of land but retains all the surrounding land, effectively cutting off all access to the created parcel.  There is the intent that an easement exists to cross the remaining land of the grantor for access to the conveyed parcel.  Unlike an implied easement by necessity, where there is an implied quasi-easement, the feature (i.e. a road, pathway, etc.) in question must have existed on the face of the earth at the time that the dominant and servient parcels were held by the same owner(s) and strict necessity is not required.  For a court to determine that a quasi-easement is present, there must be favorable evidence proving the understanding of the lands historical use and existence of physical evidence of use on the site in question.

The scope of a quasi-easement is equivalent to the extent of the prior use. However, this rule only applies to the boundaries of the easement and not the permitted use itself.  In Maine, there is minimal case law nor any statutory determination of the permitted scope of an implied quasi-easement. However, other jurisdictions have held that an implied easement based on prior use at time of severance of estates entitles the dominant estate owner to reasonable, unrestricted use of the easement.  The owner of a dominant estate would be able to utilize the easement not only for the historical use, but any reasonable use after severance. For example, While a quasi-easement is limited in dimensions to prior use; the use is only limited by reasonableness, oppose to historical use.

Property disputes often arise between dominant and servient estate holders when the scope of use and extent of an easement is not clearly delineated or understood by both parties.  A trained land use professional is often required to determine what extent a dominant easement owner may utilize an express or implied easement.  The advice of a qualified property law attorney should be sought to help interpret the rights of all parties in the event of ambiguous easement language or potential easements by implication.


Michael J. Skolnick, Esq.

Archipelago Law, LLP