Advocate Article: The Belt and Suspenders Approach to Easement Cases

Published in the Idaho State Bar Advocate Magazine, Mar/Apr 2015

by Travis J. Sorenson

When filing a case to enforce an easement, you should always use the belt and suspenders approach by pleading alternative theories. This article discusses the basic theories of easement law to provide options for attorneys who do not generally practice real property law. The author witnessed another attorney almost lose a case because he failed to plead alternative legal theories in a utility easement case. By pleading alternative theories, a fallback position is available if one theory unexpectedly fails due to facts discovered as the case progresses.

The near-miss involved a dispute between two homeowners in which Neighbor A’s (who we will call Smith) utility line ran across Neighbor B’s (who we will call Jones) property to connect to the public utility line thereon. When Smith needed access to Jones’ property to repair the private section of the utility line, a dispute broke out. Jones refused to let Smith enter and dig up the utility on his property fearing that his property would be damaged.

Smith’s attorney made a case for an express easement but failed to plead or argue for an easement under other theories because apparently it seemed obvious that the original developer recorded an express easement for the utility.

At trial, the Court rightfully found there was no express easement because the recorded express easement was an easement in gross reserved only for the original developer. Because it was an easement in gross, the easement was personal to the developer; it did not transfer to the city when it took over responsibility of the public line, or to Smith when he took ownership of the private line. Therefore, when the utility needed repair neither the city nor Smith held an express easement allowing access for maintenance.

The judge in that case was savvy enough to see an easement under different theories without help from Smith’s attorney. Smith would have lost completely and had no access to fix his utility if the judge had not taken judicial notice of other easement theories.

Relying on the court to initiate alternative legal theories is a dangerous litigation strategy. Understanding and pleading alternative easement theories can keep your clients from losing litigation if one theory fails because new information is brought to light during discovery.

Easements under Idaho law

In general, an easement is an interest in the land of another consisting of the right to use the land for a specific purpose.1 In Idaho, there are four methods by which an easement can be created: express easement, implied easement by prior use, implied easement by necessity, and easement by prescription. Each type of easement can be appurtenant or in gross. An appurtenant easement is one in which there is both a dominant and servient estate.2 The owner of the dominant estate is the holder of the easement, and the servient estate is the property across which the easement lies for the benefit of the dominant estate.3

An appurtenant easement will run with the land, meaning that when the land is conveyed, the easement will also be conveyed, and the easement cannot be separated from it.4

On the other hand, easements in gross are personal to the party holding the easement, and they do not run with the land and cannot be transferred.5 There is an easement in gross when there is a servient estate but no dominant estate.6 Most utility easements are easements in gross, and cannot be transferred.

Express easements

To create an express easement there must be (a) a writing that satisfies the statute of frauds; and (b) it must be clear from the writing that the parties intended to create a servitude. 7 There are no magic words necessary to create an express easement, but the writing must show the parties intended to create a servitude.8 If there is no writing or the writing does not show an intention to create a servitude, the express easement will be unenforceable.9

In Idaho, the statute of frauds for conveyances of real property are found in Idaho Code §§ 9-503 and 55-601. The grantor must sign the writing creating an easement and the property must be positively identified in a manner that does not require divergence into parol evidence.10 The writing does not need to be signed by the grantee, and must at least identify the servient estate, which is the property subject to the easement.11 If the easement is appurtenant, the conveyance instrument must identify both the servient estate and dominant estate or estates.

Even when there appears to be an express easement, there are several reasons why your case for express easement could fail. As in the Smith-Jones case discussed above, it may fail because it was created as an easement in gross, and there was a failed attempt to convey it. Because easements in gross are personal to the party holding the easement, they cannot be transferred.12 Most utility easements cannot be transferred because they are easements in gross.

Appurtenant easements, on the other hand, may fail if one not holding title to the dominant estate attempts to enforce it.13 Because appurtenant easements run with the land, the easement cannot be separated from it.14 When one attempts to separate an easement appurtenant from the land by conveyance, the easement fails.15 Appurtenant easements may also fail if the dominant and servient estates are brought into common title ownership.

Additionally, an express easement may fail if the writing was not recorded, and a subsequent purchaser bought it without actual notice.16 Because your express easement may fail, you should always make a case for easement by implication and easement by prescription if the facts support it. This belt and suspenders approach will keep your client from losing in litigation.

Implied easements

Easements can be created by implication. Idaho courts have recognized two types of implied easements including implied easement by prior use and implied easement by way of necessity.17

Implied easements by prior use

The prima facie case for implied easement by prior use includes: “(1) unity of title or ownership and subsequent separation by grant of the dominant estate; (2) apparent continuous use long enough before separation of the dominant estate to show that the use was intended to be permanent; and (3) the easement must be reasonable necessary to the property enjoyment of the dominant estate.”18

It should be noted that to create an implied easement by prior use the easement must only be “reasonably necessary.”19 The reasonable necessary standard is something less than absolute necessity.20 A property does not need to be landlocked for a court to find that an easement is reasonably necessary.21 In determining what is reasonable, a court will “balance the respective convenience, inconvenience, costs, and other pertinent facts.”22

Thomas v. Madsen is a simple example of an easement created by prior use.23 The case involved a 50-acre parcel owned by members of the Thomas family.24 Different sections of the property were conveyed to the Thomas children, including the Plaintiff Dale Thomas (Thomas). 25 In turn, Thomas gifted part of his property to his son Dale Roy Thomas (Dale Roy).26 The road that provided access to Thomas’s property ran across Dale Roy’s property.27 The road had been used by the family to access Thomas’s property for over 100 years.28

Later, Dale Roy’s property was lost to the bank in foreclosure, and eventually sold to the Defendant Madsen.29 After taking possession, Madsen locked and chained a gate across the road, which Thomas cut in order to access his land to feed his cattle.30 A lawsuit followed.31 The Court affirmed the district court’s finding that Thomas had an implied easement by prior use across Madsen’s property.32 The Court made this finding despite the fact that Thomas’s property was bordered by a public highway because the Court found there was reasonable necessity when Thomas would have taken considerable expense to build a new road.33

Implied easement by way of necessity

An implied easement by way of necessity may become relevant in a case when there was no prior use or, when the prior use was not carried on long enough to show it was intended to be permanent. The primary difference between an implied easement by prior use and an implied easement by necessity is that the later requires a higher degree of necessity.34

The primia facie case for an implied easement by way of necessity requires a showing of: “(1) unity of title and subsequent separation of the dominant and servient estates; (2) necessity of the easement at the time of severance; and (3) great present necessity for the easement.”35 While element two can be satisfied by reasonable necessity, element three requires a higher degree of necessity – what the courts have termed “great present necessity.”36 Great and present necessity usually means the claimed easement is the only way to access the property.37 Great and present necessity does not exist if there is alternate access, even if the alternate access is extremely inconvenient or expensive.38

Easement by prescription

In some situations, the strongest case may be a prescriptive easement, even if there is an express easement in writing. An example of this is when the written document has limited the easement to a certain scope, but for many years the actual use of the property has greatly exceeded the scope of the express easement. The general rule is that the easement holder may not exceed the intended use of the easement.39 However, if an easement holder exceeds the intended use of the easement for the statutory period, the easement holder may have expanded it thereby creating more robust rights by prescriptive use.40 In this situation, the written document may no longer govern the scope of the easement, because of the expansion caused by prescriptive use.41

To prove a case for prescriptive easement, a landowner must show by clear and convincing evidence there has been use that is “(1) open and notorious, (2) continuous and uninterrupted, (3) adverse and under a claim of right, (4) with the actual or imputed knowledge of the owner of the servient tenement (5) for the statutory period of [five or 20] years.”42 Use that is permissive is not considered adverse.43

In many situations, the parties in a prescriptive easement lawsuit are not the same parties that were present when the use began. When a claimant provides proof of open, notorious, and uninterrupted use there is a presumption created that the use was adverse and under a claim of right, but only if there is no proof of how the use began.44 In this situation the burden of proof shifts to the opposing party to show the use was not adverse, but rather permissive.45 This presumption can be a weakness for a party defending against a prescriptive easement, but an asset to the party bringing the claim.

Additionally, statutory period for prescriptive use was changed by the legislature in 2006.46 Prior to 2006, the statutory period was merely five years; however, it is now 20 years.47 The five-year statutory period probably applies to a claimant who fulfilled the five-year statutory period before 2006, but brought a claim after 2006, although the Court has not pronounced this except in vague terms.48 Presumably in this situation, the easement rights vests in the adverse claimant when the statutory period is fulfilled regardless of whether it has been adjudicated. Therefore, a party’s case may remain viable if the adverse use is more than five years but less than 20 and if the rights arguably vested by operation of law under the five year statute prior to 2006.


Always use the belt and suspenders approach and plead multiple theories when bringing an easement case if the facts support them. Express easements can fail even when it seems obvious. If your express easement case fails, your fallback position is a case for implied easement or easement by prescription. Sometimes there will be a case for both an implied easement and a prescriptive easement. The prescriptive easement rights could be more robust than the express easement rights. Pleading multiple easement theories could ensure your client does not lose in litigation.


  1. Tower Asset Sub Inc. v. Lawrence, 143 Idaho 710, 714, 152 P.3d 581, 585 (2007); citing Akers v. D.L. White Const., I nc., 142 Idaho 293, 301, 127 P.3d 196, 204 (2005).
  2. King v. Lang, 136 Idaho 905, 909, 42 P.3d 698, 702 (2002).
  3. King, 136 Idaho at 909.
  4. Id.
  5. Id.
  6. Id.
  7. Tower Asset Sub Inc., 143 Idaho at 714, 152 P.3d at 585 (citing Shultz v. Atkins, 97 Idaho 770, 773, 554 P.2d 948, 951 (1976)) (citing I.C. § 9-503); McReynolds v. Harrigfeld, 26 Idaho 26, 140 P. 1096 (1914).
  8. Id. (citing Benninger v. Derifield, 142 Idaho 486, 489, 129 P.3d 1235, 1238 (2006) (quoting Seccombe v. Weeks, 115 Idaho 433, 436, 767 P.2d 276, 279 (Ct. App. 1989))).
  9. Ray v. Frasure, 200 P.3d 1174, 1177, 146 Idaho 625, 628 (2009) (citing Hoffman v. S V Co., Inc., 102 Idaho 187, 190, 628 P.2d 218, 221 (1981) (citing 72 Am.Jur.2d Statute of Frauds § 285 (1974); 73 Am.Jur.2d Statute of Frauds § 513 (1974))).
  10. Id. (citing Garner v. Bartschi, 139 Idaho 430, 435, 80 P.3d 1031, 1036 (2003)).
  11. Id. (citing Garner v. Bartschi, 139 Idaho 430, 435, 80 P.3d 1031, 1036 (2003) & Machado, v. Ryan, 153 Idaho 212, 218, 280 P.3d 715, 721 (2012) (citing Hodgins v. Sales, 139 Idaho 225, 233, 76 P.3d 969, 977 (2003))).
  12. King, 136 Idaho at 909, 42 P.3d at 702.
  13. Id.
  14. Id.
  15. Id.
  16. I.C. § 55-812.
  17. Davis v. Peacock, 133 Idaho 637, 642, 991 P.2d 362, 367 (1999).
  18. Id.
  19. Id. at 643, 991 P.2d at 368.
  20. Id.
  21. Machado v. Ryan, 153 Idaho 212, 219, 280 P.3d 715, 722 (2012).
  22. Id.
  23. Thomas v. Madsen, 142 Idaho 635, 132 P.3d 392 (2006).
  24. Id.
  25. Id. at 637, 132 P.3d at 394.
  26. Id.
  27. Id.
  28. Id.
  29. Id.
  30. Id.
  31. Id.
  32. Thomas, 132 P.3d at 395-96, 142 Idaho at 638-39.
  33. Id. at 638-39, 132 P.3d at 395-96.
  34. Machado, 153 Idaho at 219, 280 P.3d at 722.
  35. Id. (citing Backman v. Lawrence, 147 Idaho 390, 394, 210 P.3d 75, 79 (2009) (quoting Bear Island Water Ass’n, Inc. v. Brown, 125 Idaho 717, 725, 874 P.2d 528, 536 (1994))).
  36. Id.
  37. Id.
  38. Id.
  39. Villager Condominium Ass’n, Inc. v. Idaho Power Co., 121 Idaho 986, 988, 829 P.2d 1335, 1337 (1992).
  40. Id.
  41. Id.
  42. Hughes v. Fisher, 142 Idaho 474, 480, 129 P.3d 1223, 1229 (2006) (citing I.C. § 5-203).
  43. Id.
  44. West v. Smith, 95 Idaho 550, 557, 511 P.2d 1326, 1333 (1973).
  45. Id.
  46. Capstar Radio Operating Co. v. Lawrence, 283 P.3d 728, 737 n.2, 153 Idaho 411, 420 n.2 (2012); I.C. § 5-203 (2006).
  47. Capstar Radio Operating Co., 153 Idaho at 420 n.2, 283 P.3d at 737 n.2,; I.C. § 5-203 (2006).
  48. Capstar Radio Operating Co., 153 Idaho at 420 n.2, 283 P.3d at 737 n.2.

About the Author

Travis J. Sorenson is an associate attorney at the firm of Bristol George, PLLC. He graduated from BYU Idaho in 2004 with a Bachelor’s Degree in Business Management, and from Creighton University School of Law in 2013. He is a licensed attorney in both Idaho and Utah. He routinely handles litigation cases for Bristol George, PLLC, focusing on real property, land use, water, and construction law.

Note: This post is not legal advice, and should not be relied upon as such. Different sets of facts will likely lead to different legal conclusions. If you need assistance with real property matters, call Bristol George, PLLC for a forty-five minute, no charge consultation to see if we can help.

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