Do you own property close to but not directly on a private lake? Would you like to gain access to that lake? To better illustrate, imagine you live in the property marked in Figure 1 with an “X,” and would like to gain access to the lake using your neighbor’s land, marked in Figure 1 with an “N.”
Is it possible to do so without being a trespasser? Of course: simply ask for your neighbor’s permission; however, an oral permission to do so is (1) revocable, and (2) does not run with the land. In other words, the neighbor may at any time take back his or her consent and prevent you from accessing the water, and no one else may use your neighbor’s land except individuals who got the neighbor’s permission.
While full riparian rights and ownership may not be severed from riparian land and transferred to nonriparian backlot owners, some states allow riparian landowners to grant an easement to backlot owners to enjoy certain rights that are traditionally regarded as exclusively riparian.27 An easement is the right to use the land of another for a specified purpose. There are two types of easements that you must be aware of: an easement appurtenant and easement in gross. An appurtenant easement “attaches to land” and is incapable of existence apart from the land to which it is attached. It is thus
necessarily connected with the use or enjoyment of the benefited parcel and may pass with the benefited property when the property is transferred.28
Referring back to our example in the previous section, an easement appurtenant would attach to both N and X. Thus, if N and X create an easement appurtenant for X to use N’s land to access the lake, then the easement would be enforceable against a subsequent purchaser of N’s property (i.e. the easement attaches and runs with the land). In such a case, property X would be the benefiting parcel and property N is burdened by the easement.
If the resident of property X wishes to access the water via his neighbor’s property (N), he or she should consider getting an easement.
An easement in gross is one that benefits a particular person and not a particular piece of land. For example, the owner of property N may grant any person an easement in gross: granting him or her the right to access the lake using N’s property. In that case, only the person holding the easement in gross may use N’s land. Unlike an easement appurtenant, an easement in gross only benefits the holder of the easement.
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