Best if printed in landscape.

This web page addresses "sharing sticks in the bundle" wherein one person is considered the owner but another person has a right to a "limited" use of the property.

Easements, Profits and Licenses

Easement - The owner of an easement has a right to lawful but limited use of another person's property; e.g., I have the right to drive across your land to reach my land.

• An easement is a burden on one estate for the benefit of another. See Nagel v. Emmons County ND Water Resource District, 474 N.W.2d 046 (ND 1991).
• An easement is a nonpossessory interest in land belonging to another which entitles the owner of the interest to a limited use or enjoyment of the land in which the interest exists. See Estate of Schatz, 419 N.W.2d 903 (N.D. 1988).
• Think of an easement as "a stick in the bundle" that allows me to have a limited use of your land; such as "I can drive on the path that crosses your land," or "you can build and maintain a powerline across my land."

An easement generally involves two tracts of land; the tract that is burdened with the easement and the tract that benefits from an easement on another tract. 

When you can drive on my land to reach your land, my land is burdened with your easement and your land benefits because the easement on my land provides you access to your land.  In this example, my land would be the servient tenement and your land would be the dominant tenement.

• Servient tenement - land subject to an easement ( N.D.C.C. §47-05-04)

  N.D.C.C. §47-05-04. Servient tenement defined. A servient tenement means the land upon which a burden or servitude has been placed.

• Dominant tenement - particular property benefited by easement (N.D.C.C. §47-05-03)

  N.D.C.C. §47-05-03. Dominant tenement defined. A dominant tenement means the land to which an easement is attached.

An important point about an easement is the idea of a "limited use".  Once an easement is created, the "limited use" cannot be expanded without the agreement of the owner of the servient tenement.

• Assume you have an easement to drive over my land to reach your agricultural land, but you are interested in developing your land by subdividing it to sell for homes. The scope of the "limited use" of your easement (which you used occasionally to reach your land during the growing season) would not allow you to build a street for the new homeowners.
• Excerpt from an AP article that appeared in the The Forum several years ago also illustrates this point.
  • "An appeals court is being asked to decide whether an oil company seeking to replace a pipe will have to do it the old-fashioned way -- with human hands and horses. In August, Judge ... Evans ruled that the Ohio Oil ... could not be barred from replacing the pipe it installed more than 60 years ago. But he said the company could not use heavy machinery that might damage the property outside the 10-foot easement it was granted in 1924. ...Evans ... citing a handwritten statement ... in the original document that said: "This grant covers the pipe line in the place and manner it is now laid." The judge ruled that ... statement limited the methods and machinery that could be used to those available in 1924. While the company may employ some modern materials.., the company "is not free to invade the defendants' land with a horde of monstrous machines which subject the land to much greater damage than ... was ever thought of ... in 1924." A witness for the company ... said that when the pipes were laid, men with shovels dug the trench, the pipes were hauled to the site by teams of horses and the pipes were laid by hand."
• The outcome of this case probably was that the oil company paid the current owner for an expanded right to enter onto the land; it is doubtful that the new pipeline was installed with old technology, or that the oil company moved the pipeline or stopped the project.

The creation and termination of easements is discussed on another page.

When the dominant tenement is sold or transferred, the easement on the servient tenement transfers to the new owner of the dominant tenement and the new owner of the dominant tenement has the right to use the easement as the former owner did. The owner of the servient tenement cannot stop the transfer of the easement when the dominant tenement is transferred, but the owner of the servient tenement can require that the new owner of the dominant tenement (and easement) abide by the limitations imposed in the original agreement creating the easement. This point is discussed again on another web page (HINT:  violating the "limited use" of an easement is a trespass).

When the servient tenement is sold or transferred, the owner of the dominant tenement is unaffected.  The owner of the dominant tenement may continue to use the easement as before, and the new owner of the servient tenement cannot stop the owner of the dominant tenement from doing so.

Answer to a frequent question: "A landowner may not be held liable for a claim resulting from the use or condition of a road across the landowner's property unless the landowner is primarily and directly responsible for the construction and maintenance of the road or an affirmative act of the landowner causes or contributes to the claim." N.D.C.C. §47-01-23.

Profit - right to lawful but limited use of another's property when there is no dominant tenement; e.g., you have the right to construct and maintain a powerline over my land.

Easements and profits:

• An easement and profit are similar; the primary difference is that a profit does not include a dominant tenement. However, we often use the word easement to also refer to a profit. See the following excerpt from a North Dakota Supreme Court decision.

  "where Minnkota had acquired a general easement for a power line which said nothing about the maximum voltage that the line would carry, we said that that utility company had "the right to uprate the line to a reasonable degree." ... we said that the holder of a general easement may avail himself of all modern inventions and all improvements reasonably necessary, consistent with the purpose for which the easement was granted. It naturally follows that these rules do not apply when the easement contains specific limitations."  Otter Tail Power Co. v. Demchuk , 314 N.W.2d 298 (N.D. 1982)

• The owner of servient tenement can assure (enforce) that owner of easement or profit does not exceed the limited use by seeking an injunction or compensation for violating the use.
• Easement or profit can be transferred by sale, gift or bequest (N.D.C.C. §47-10-11).
• Easement or profit cannot be terminated by owner of servient tenement.
• Restated, the owner of the easement or profit holds a stick in the bundle of rights that can be transferred like any other property right; similarly, the owner of the servient tenement can do nothing to take "the stick" from the owner of the easement or profit.

Interesting fact pattern:

[¶2] In 2003, BNSF closed a grade crossing on a spur line connecting BNSF's main line with the State Mill and Elevator in Grand Forks. The grade crossing provided access from State Mill Road across BNSF's spur line to property now owned by Home of Economy, and there was evidence BNSF ran forty to seventy cars per day on the spur line to the State Mill and Elevator. According to Cliff Olson, the previous owner of Home of Economy's property, the grade crossing had existed on BNSF's spur line since 1925. According to Olson, until the early 1950s, the grade crossing provided the only access from State Mill Road to his property, but in the early 1950s, Highway 81 was routed to also provide access to his property, and each access road had been used equally by his customers. According to Olson, there were no signs at the crossing when he owned the property, and BNSF placed a stop sign at the grade crossing after Home of Economy acquired the property from him in 1994. According to Wade Pearson, a vice president of Home of Economy, BNSF informed him in 1994 that it intended to close the grade crossing, but Pearson objected and BNSF placed a stop sign at the crossing.

[¶3] In June 2003, without notice to Home of Economy or any other entity, BNSF removed the wooden planks between the tracks, excavated the soil, and bulldozed a barrier on both sides of the spur line, making it impossible for vehicular traffic to cross the spur line from State Mill Road to Home of Economy's property. Home of Economy sued BNSF in a North Dakota state court for damages and to reopen the crossing, claiming an easement for access to its land had existed from the State Mill Road across the spur line since the 1920s. Home of Economy alleged an easement by prescription, easement by necessity, and easement by estoppel. Home of Economy v. Burlington Northern, 2005 ND 74, 694 N.W.2d 840.

North Dakota's WIND ENERGY PROPERTY RIGHTS, see N.D.C.C. 17-04

• "... wind easement means a right ... for the purpose of ensuring adequate exposure of a wind power system to the winds."

North Dakota's RIGHT OF ACCESS FOR HUNTING, see N.D.C.C. §47-05-17

• "Severance of the right of access for hunting access prohibited. The right of access to land to shoot ... may not be severed from the surface estate. This section does not apply to deeds, instruments, or interests in property recorded before August 1, 2007."

License - A license (a right to use) differs from an easement of profit because the owner of servient tenement can terminate "right to use"; e.g., I give you permission to hunt on my land; but I can revoke that permission at any time.

• How would one distinguish a license from an easement or a profit?
• In Lehman v. Williamson, 533 P.2d 63, 65 (Colo.App.1975), the Court said:
  • "There is a clear distinction in the legal interest conveyed by a license and an easement. An easement, while distinct from ownership of land itself, is an interest in land. [Citation omitted.] A license is, however, merely a personal privilege to do some particular act or series of acts on land without possessing any estate or interest therein. [Citations omitted.] Also, a license is, ordinarily, revocable at the will of the licensor and is not assignable." Lee v. North Dakota Park Service, 262 N.W.2d 467 (N.D. 1977)
• What is the significance that permission to drive, hunt or use software is called a license?
• How does the concept of a license apply to the bio-technology that is being incorporated into plant and livestock genetics?
• Often the company providing the bio-tech seed has the farmer sign a document stating that the farmer is merely acquiring a license to use the seed. Why would the company want the relationship to be considered a license? Also, do not overlook that the bio-technology that has been incorporated into the seed is an "intangible property."

Additional Examples of One Person having a Right in Another Person's Land

Mineral owner's use of surface owner's land

Also consider the situation where one person owns the surface rights to land and another person owns the mineral rights (that is, the ownership of the mineral rights has been separated or severed from the ownership of the surface). What legal authority does the owner of the severed mineral rights have to enter onto the land to explore for or develop the minerals?  Is the surface owner entitled to be compensated for disruptions or damages caused by the exploration or development of the severed mineral rights? See N.D.C.C. 38-18.

Mortgage (a lien against the land)

Another common situtation wherein someone holds "a stick in the bundle of rights" in property owned by someone else is a mortgage (or more generally referred to as a lien against the land). In these situations, the property owner has likely borrowed cash from a lender (such as a bank), and in exchange has promised to repay the loan (with interest), plus provide the lender the legal right to seize the property if the loan is not repaid. This legal right to seize the property is often referred to as a mortgage or a lien; this legal right can also be considered "a stick in the bundle" entitling the lender to seize the land if the debt is not repaid according to the terms of the loan agreement (or note).

A mortgage is another example of someone other than the property owner holding a stick in the bundle of property rights.

Summary of Key Points

This page introduced easements and profits, licences, and several other examples of one person having a right ("stick in the bundle") in another person's land. Review:

• The concept of a "limited use" of someone else's property.
• Easement/profit as stick in the "bundle of rights."

The next page introduces the process of transferring property rights from one owner to another.

Last updated March 13, 2010

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