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Abstract

Black's Law Dictionary defines an easement as a right of use over the property of another. An easement is a right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not inconsistent with a general property right in the owner. It is an interest that one person has in the land of another. A primary characteristic of an easement, that its burden falls upon the possessor of the land from which it issued, is expressed in the statement that the land constitutes a servient estate or tenement and the easement a dominant tenement. The servient estate may utilize the easement area for its own purposes or in conjunction with the dominant estate as long as such use does not interfere with the dominant estate. An easement is distinguishable from a “license,” which merely confers personal privilege to do some act on the land. Easements do not allow exclusive possession of the area. They are categorized as incorporeal hereditaments. Easements also are known as rights-of-way and servitudes, although there is some distinction among these terms. While roads for the most part are easements devoted to access and travel, not all easements are roads. Easements, more so than other forms of title, often are difficult to identify, research, and locate. This difficulty exists for three reasons. First, easements ordinarily are not contiguous to other easements. The records usually provide no references to adjoining easements that can be relied upon to correct a defective or vague description. Second, an easement is a nonpossessory estate that is shared with other persons. Public easements are enjoyed by all, and private easements do not necessarily restrict the servient estate from using the same area in any manner that will not interfere with the exercise of the dominant estate. As a result, it usually is not possible or desirable to spend time and money to mark the boundaries, set up barriers such as fences or walls, or clearly document the easement to prevent trespass and perpetuate the easement's boundaries, as normally would be done with a possessory estate. Third, the amount of effort required in title research or a survey is inversely proportional to the effort and care that went into the original description. Scriveners normally spent very little time preparing the original descriptions so that great effort may be required in subsequent title searches and surveys. Despite the difficulties surrounding easements, nearly every piece of property in Maine must rely on private or public easements for access and enjoyment. Consequently, the practitioner must be familiar with certain aspects of title regarding easements and their use. This Article will discuss various concepts regarding the use, creation, and extinguishment as well as other problems often associated with easements.

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