What are the differences between easements and profits PDF

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Summary

An assignment that details the differences between easements and profits. As well as highlights their definitions...

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What are the differences between easements and profits-à-prendre under land law? What are the leading cases?

Question What are the differences between easements and profits-à-prendre?

Answer An easement is loosely defined as: the right to use another’s land for a specific purpose. Examples include gas pipes and a right of way. Re Ellenborough Park [1956] outlines four characteristics of an easement and they are: 1. 2. 3. 4.

There must be a dominant and servient tenement The easements must accommodate the dominant land The easement must be owned and occupied by different people The easement must be capable of forming the subject matter of a ‘grant’

A profit-a-prendre (profit) on the other hand is defined as: the right to go to another’s land and remove something that exists there naturally. Examples include a right to remove soil/mineral or to graze sheep on another’s land. Profits can appear in gross (completely separate not attached to a dominant land) or appurtenant (can only be used by owner of the adjacent property). As with easements, there is a requirement for there to be a servient land over which the right exists, however with profits there must always be a dominant land benefitted by the right.

Easements, Profits & Licenses An easement and profit are the concepts that one person has the legal right to a limited use of another person's real property. A license also allows the license holder to use another person's property, but a license does not include as many legal rights as an easement or a profit. .

This web page addresses "sharing sticks in the bundle" wherein one person is considered the owner but another person has a right to a "limited" use of the property.

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Easements, Profits and Licenses Easement - The owner of an easement has a right to lawful but limited use of another person's property; e.g., I have the right to drive across your land to reach my land. 

An easement is a burden on one estate for the benefit of another. See Nagel v. Emmons County ND Water Resource District, 474 N.W.2d 046 (ND 1991).

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An easement is a nonpossessory interest in land belonging to another which entitles the owner of the interest to a limited use or enjoyment of the land in which the interest exists. See Estate of Schatz, 419 N.W.2d 903 (N.D. 1988).

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Think of an easement as "a stick in the bundle" that allows me to have a limited use of your land; such as "I can drive on the path that crosses your land," or "you can build and maintain a powerline across my land."

An easement generally involves two tracts of land; the tract that is burdened with the easement and the tract that benefits from an easement on another tract.

When you can drive on my land to reach your land, my land is burdened with your easement and your land benefits because the easement on my land provides you access to your land. In this example, my land would be the servient tenement and your land would be the dominant tenement.

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Servient tenement - land subject to an easement ( N.D.C.C. §47-05-04) N.D.C.C. §47-05-04. Servient tenement defined. A servient tenement means the land upon which a burden or servitude has been placed.

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Dominant tenement - particular property benefited by easement (N.D.C.C. §47-05-03) N.D.C.C. §47-05-03. Dominant tenement defined. A dominant tenement means the land to which an easement is attached.

An important point about an easement is the idea of a "limited use". Once an easement is created, the "limited use" cannot be expanded without the agreement of the owner of the servient tenement.

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Assume you have an easement to drive over my land to reach your agricultural land, but you are interested in developing your land by subdividing it to sell for homes. The scope of the "limited use" of your easement (which you used occasionally to reach your land during the growing season) would not allow you to build a street for the new homeowners.

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Excerpt from an AP article that appeared in the The Forum several years ago also illustrates this point. 

"An appeals court is being asked to decide whether an oil company seeking to replace a pipe will have to do it the old-fashioned way -- with human hands and horses. In August, Judge ... Evans ruled that the Ohio Oil ... could not be barred from replacing the pipe it installed more than 60 years ago. But he said the company could not use heavy machinery that might damage the property outside the 10-foot easement it was granted in 1924. ...Evans ... citing a handwritten statement ... in the original document that said: "This grant covers the pipe line in the place and manner it is now laid." The judge ruled that ... statement limited the methods and machinery that could be used to those available in 1924. While the company may employ some modern materials.., the company "is not free to invade the defendants' land with a horde of monstrous machines which subject the land to much greater damage than ... was ever thought of ... in 1924." A witness for the company ... said that when the pipes were laid, men with shovels dug the trench, the pipes were hauled to the site by teams of horses and the pipes were laid by hand."

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The outcome of this case probably was that the oil company paid the current owner for an expanded right to enter onto the land; it is doubtful that the new pipeline was installed with old technology, or that the oil company moved the pipeline or stopped the project.

The creation and termination of easements is discussed on another page. When the dominant tenement is sold or transferred, the easement on the servient tenement transfers to the new owner of the dominant tenement and the new owner of the dominant tenement has the right to use the easement as the former owner did. The owner of the servient tenement cannot stop the transfer of the easement when the dominant tenement is transferred, but the owner of the servient tenement can require that the new owner of the dominant tenement (and easement) abide by the limitations imposed in the original agreement creating the easement. This point is discussed again on another web page (HINT: violating the "limited use" of an easement is a trespass).

When the servient tenement is sold or transferred, the owner of the dominant tenement is unaffected. The owner of the dominant tenement may continue to use the easement as before, and the new owner of the servient tenement cannot stop the owner of the dominant tenement from doing so.

Answer to a frequent question: "A landowner may not be held liable for a claim resulting from the use or condition of a road across the landowner's property unless the landowner is primarily and directly responsible for the construction and maintenance of the road or an affirmative act of the landowner causes or contributes to the claim." N.D.C.C. §47-01-23.

Profit - right to lawful but limited use of another's property when there is no dominant tenement; e.g., you have the right to construct and maintain a powerline over my land.

Easements and profits: 

An easement and profit are similar; the primary difference is that a profit does not include a dominant tenement. However, we often use the word easement to also refer to a profit. See the following excerpt from a North Dakota Supreme Court decision. "where Minnkota had acquired a general easement for a power line which said nothing about the maximum voltage that the line would carry, we said that that utility company had "the right to uprate the line to a reasonable degree." ... we said that the holder of a general easement may avail himself of all modern inventions and all improvements reasonably necessary, consistent with the purpose for which the easement was granted. It naturally follows that these rules do not apply when the easement contains specific limitations." Otter Tail Power Co. v. Demchuk , 314 N.W.2d 298 (N.D. 1982)

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The owner of servient tenement can assure (enforce) that owner of easement or profit does not exceed the limited use by seeking an injunction or compensation for violating the use.

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Easement or profit can be transferred by sale, gift or bequest (N.D.C.C. §47-10-11).

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Easement or profit cannot be terminated by owner of servient tenement.

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Restated, the owner of the easement or profit holds a stick in the bundle of rights that can be transferred like any other property right; similarly, the owner of the servient tenement can do nothing to take "the stick" from the owner of the easement or profit.

Interesting fact pattern: [¶2] In 2003, BNSF closed a grade crossing on a spur line connecting BNSF's main line with the State Mill and Elevator in Grand Forks. The grade crossing provided access from State Mill Road across BNSF's spur line to property now owned by Home of Economy, and there was evidence BNSF ran forty to seventy cars per day on the spur line to the State Mill and Elevator. According to Cliff Olson, the previous owner of Home of Economy's property, the grade crossing had existed on BNSF's spur line since 1925. According to Olson, until the early 1950s, the grade crossing provided the only access from State Mill Road to his property, but in the early 1950s, Highway 81 was routed to also provide access to his property, and each access road had been used equally by his customers. According to Olson, there were no signs at the crossing when he owned the property, and BNSF placed a stop sign at the grade crossing after Home of Economy acquired the property from him in 1994. According to Wade Pearson, a vice president of Home of Economy, BNSF informed him in 1994 that it intended to close the grade crossing, but Pearson objected and BNSF placed a stop sign at the crossing. [¶3] In June 2003, without notice to Home of Economy or any other entity, BNSF removed the wooden planks between the tracks, excavated the soil, and bulldozed a barrier on both sides of the spur line, making it impossible for vehicular traffic to cross the spur line from State Mill Road to Home of Economy's property. Home of Economy sued BNSF in a North Dakota state court for damages and to reopen the crossing,

claiming an easement for access to its land had existed from the State Mill Road across the spur line since the 1920s. Home of Economy alleged an easement by prescription, easement by necessity, and easement by estoppel. Home of Economy v. Burlington Northern, 2005 ND 74, 694 N.W.2d 840.

The chief distinction between an easement and a profit à prendre is that whereas an easement only confers a right to use the servient tenement in a particular manner or to prevent the commission of some act on that tenement1, a profit à prendre confers a right to take from the servient tenement some part of the soil of that tenement or minerals under it or some part of its natural produce or the wild animals (animals ferae naturae) existing upon it...