Easements are generally defined as the right to use another person’s land in a certain manner. Once an easement is established, either by express grant, prescription, estoppel or implication, one of two types of easements is created: an easement in gross or an easement appurtenant. The primary difference between these two types of easements is that an easement appurtenant is attached to a piece of land, while an easement in gross is attached to a particular individual or entity, such as a utility company.
Easement in Gross
These types of easements are typically given to a utility or oil and gas company for utility lines or pipelines. Easements in gross ordinarily are not transferable or assignable (Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 203 (Tex.1963), unless there is specific language in the easement allowing for assignment. This language in the instrument that allows assignment usually states that “the terms, conditions and provisions of this contract shall extend to and be binding upon the grantee, his heirs, successors and assigns." An easement in gross gives the owner the sole privilege of the uses authorized by it, including the exclusion of the use by the subservient owner (Orange County, Inc. v. Citgo Pipeline Co., 934 S.W.2d 472, 476 (Tex. App.—Beaumont 1996, writ denied)). For example, you would not be able to interfere with an electric company’s right to run its lines above your property if it has an easement to do so.
Unlike easements in gross, an easement appurtenant usually “runs with the land,” meaning it may continue even if ownership of an estate is transferred. The instrument identifying this type of easement should identify a dominant and subservient estate. The dominant estate has the right to use the easement and the subservient estate is the estate that is allowing that use. Easements appurtenant are either positive or negative. A positive easement appurtenant gives the dominant landowner the right to some limited use of the subservient estate, such as to cross the subservient estate’s land to reach an access road. A negative easement appurtenant prohibits a certain activity, such as building an obstruction on the subservient estate.
Reviewing easements is important when purchasing a piece of property to determine who has limited rights to use your property and what uses you cannot interfere with. If you have any questions about different types of easements, particularly those identified in a survey, contact an experienced real estate attorney for advice. Easement law in Texas is complex and requires the necessary knowledge and skill in navigating the various types of easements.
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