What are the different types of easements in Idaho?

There are two general types of easements: easements appurtenant and easements in gross. Hoch v. Vance, 155 Idaho 636, 639, 315 P.3d 824, 827 (2013). The Idaho Supreme Court explained the difference in legalese, but we like to use an example everyone can relate to. Credit for this example is given to Professor Peter T. Wendel of Pepperdine University School of Law who presented it to the first year law students.

The Surfer

The Surfer lives in Malibu, California. She owns a small house about a mile from the beach. She likes to surf at a particular beach, but the only access to the beach is a 3 mile walk along the beach from a public access or over a trail on private property. The Owner of the property offers to sell the Surfer an "easement in gross" to get to the beach. The Surfer does some research and learns that an "easement in gross" is an easement that benefits only the Surfer. The Surfer can not transfer the right to cross the land to anyone else. 

The Surfer would prefer to get an "appurtenant easement" to her land. In other words, the easement can be used by anyone who owns her land. This makes her land more valuable because she can sell the land and the easement goes with it. Once Surfer sells the land, she can no longer use the easement.

This is how a Court explains the difference between the two types of easements:

An easement appurtenant is a right to use a certain parcel, the servient estate, for the benefit of another parcel, the dominant estate. Essentially, an easement appurtenant serves the owner of the dominant estate in a way that cannot be separated from his rights in the land. When an appurtenant easement is created, it becomes fixed as an appurtenance to the real property, which is subject to the prescriptive use and may be claimed by a successor in interest. In contrast, an easement in gross benefits the holder of the easement personally, without connection to the ownership or use of a specific parcel of land. Thus, easements in gross do not attach to property. In cases of doubt, Idaho courts presume the easement is appurtenant. 

Hoch, 155 Idaho at 639-40, 315 at 827-28.

Easement Appurtenant is Presumed

If there is a question as to whether an easement is appurtenant or in gross, an Idaho court will presume an easement appurtenant. In other words, it runs with the land rather than the person. The reason for this presumption is an easement in gross only runs with a person. Courts presume that if an easement is granted, it is intended to be benefit land - not an individual person. 

If you have questions about the different types of easements, please feel free to contact us.