What is an easement?
At a basic level, an easement is simply a non-possessory interest in land. Easements create a right to use land owned and possessed by someone else. For example, the owner of a parcel of real property might grant the owner of an adjacent parcel the right to cross his or her property. In this example, the tract of land upon which the easement runs is referred to as the servient tenement.
In Indiana, easements are generally categorized as one of two different types: (1) easements appurtenant or (2) easements in gross. The primary difference between the two is that easements appurtenant involve two tracts of land and grant the owner of one tract the right to use another tract. Again, the tract of land upon which the easement runs is referred to as the servient tenement and the beneficial tract of land is referred to as the dominant tenement. With easements appurtenant, the easement is said to “run with the land,” meaning use of the easement transfers to the successive owners of the dominant tenement upon conveyance or inheritance of the dominant tenement. An easement to cross another parcel for access purposes is a classic example of an easement appurtenant.
Conversely, an easement in gross is created where a person acquires a special right to use a tract of land independent of his or her ownership of another tract of land. With an easement in gross, the benefit runs to the easement holder, not the adjacent land. Easements in gross are typically only transferrable in certain circumstances. Courts also have a preference for construing easements as easements appurtenant (instead of easements in gross) when possible. A classic example of an easement in gross is a utility easement.
Indiana generally recognizes three methods by which an easement can be created: (1) by grant (or reservation), (2) by implication, or (3) by prescription. Because an easement is an interest in real estate, Indiana law typically requires an easement to be in writing and signed by the grantor. However, in some situations courts may imply an easement, even when there is no express writing. Courts may also declare an easement by prescription in certain circumstances, again, even though there is no express writing. Generally, an easement by prescription is a process akin to adverse possession where someone uses the land in an open and notorious manner, adverse to the claim of right of the owner, and continuously for a set period of time. Prescriptive easements are disfavored by courts because of this.