Easements, Rights-of-Way, and Encumbrances
Core concepts
An easement is a nonpossessory right to use another's land. Candidates must distinguish appurtenant from in gross, affirmative from negative, and prescriptive from express easements. A right-of-way is a type of easement; the fee underlying it may remain with the abutting owner. Encumbrances include liens, mortgages, restrictive covenants, and easements-anything that burdens title.
Traps
Questions often blur the difference between the centerline and the limits of a right-of-way. A deed to a street "subject to" a right-of-way does not necessarily convey the fee to the centerline. Another trap: prescriptive easements require open, notorious, adverse, and continuous use for the statutory period, and permissive use defeats the claim. Also watch for the distinction between an easement's location and its width-an undefined width may default to a reasonable width.
Worked example
A 30-foot-wide utility easement described as "the 15 feet on each side of the following centerline" is measured perpendicular to the centerline at every point, so on a curve the outer edge is longer than the inner edge.
Rule of thumb
An easement grants use, not ownership; the servient owner retains fee unless the instrument says otherwise.