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Vanderbilt Law Review

Alan D. Hegi

First Page

109

Abstract

Courts have disagreed about the nature, obligations, and privileges that accompany the easement in gross. Generally, an easement is an interest in land which gives the easement holder the right to use that land for a specific purpose, free from the will of the landowner. An easement is in gross when the benefit from the use of another's land inures to the easement holder personally, rather than to the holder's land. The land that is subject to the holder's right of use is the servient tenement. Courts agree on these basic principles of an easement in gross, but have disagreed on the holder's right to transfer his interest to a third party. Similarly, no uniformity exists among courts on the right of the holder of an easement in gross to divide and share his interest with a third party.

In the mid-1940's, two commentators compiled and analyzed the state of the law concerning the transferability and divisibility of easements in gross." Both writers attested to the importance of easements in gross in facilitating commercial activity, especially in the area of transportation rights of way and public utilities. Each author noted that the common law rule disfavored transferability and divisibility of easements in gross because the rights accompanying the easement were personal to the holder." The two writers noted, however, that the common law rule was beginning to changeand that courts were allowing limited transfers and divisions of easements in gross.' Emphasizing that a party could not realize the maximum value of an easement in gross unless the courts allowed the easement holder to transfer or divide his interest, both men concluded their essays with a call for a greater consensus among the courts and for fewer restrictions on the transferability and divisibility of easements in gross."

These commentaries appeared over forty years ago. Today,easements in gross continue to play an important commercial role and are finding new uses in fields such as environmental conservation and historic preservation.' Despite the growing importance of easements in gross, commentators during this forty-year span have neglected to address the questions of transferability and divisibility. The purpose of this Note is to gather and analyze the law of transferability and divisibility of easements in gross as the law has developed since 1945. Part II of this Note differentiates easements in gross from other types of real servitudes. Part III discusses the variety of approaches that courts and legislatures have taken in addressing the question of transferability. Part IV deals with the development of the independent exercise doctrine of divisibility.Last, part V advocates that courts should place less emphasis on terminology and should direct more attention toward the parties'intentions and the surrounding circumstances of the easement interest when determining the transferability and divisibility of easements in gross.

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