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Easement

An easement is the right to a limited use of someone's else land, for example, my right to use a path on your land to drive to my land is an easement.  Easements are also called servitudes because one tract of land is obligated to serve someone else.  In the previous example, your land is obligated to serve my land by allowing me to drive across your land to reach mine.

See N.D.C.C 47-50 Servitudes

In creating an easement, the extent of the limited use must be stated, the land that is burdened with the easement must be specified, and the duration of the easement must be indicated.  If the duration is not indicated, state law (such as the following North Dakota statute) will define the duration.  The following statute also states that the scope of the easement (that is, the scope of the limited use) cannot be altered except by agreement between the owner of the easement and the owner of the land burdened with the easement.

Real property easements, servitudes, or any nonappurtenant restrictions on the use of real property ... shall be subject to the requirements of this section. These requirements are deemed a part of any agreement for such interests in real property whether or not printed in a document of agreement.
1. The area of land covered by the easement, servitude, or nonappurtenant restriction on the use of real property shall be properly described and shall set out the area of land covered by the interest in real property.
2. The duration of the easement, servitude, or nonappurtenant restriction on the use of real property must be specifically set out, and in no case may the duration of any interest in real property regulated by this section exceed ninety-nine years. The duration of an easement for a waterfowl production area acquired by the federal government, and consented to by the governor or the appropriate state agency ... may not exceed fifty years. The duration of a wetlands reserve program easement acquired by the federal government pursuant to the Food, Agriculture, Conservation, and Trade Act of 1990 after July 1, 1991, may not exceed thirty years.
3. No increase in the area of real property subject to the easement, servitude, or nonappurtenant restriction shall be made except by negotiation between the owner of the easement, servitude, or nonappurtenant restriction and the owner of the servient tenement. (N.D.C.C.§47-05-02.1.)

The land that is burdened with an easement is called the servient tenement; that is, it is required to serve someone else.  In the previous example, your land would be the servient tenement because it is burdened with the obligation to allow me to drive on the path on your land.

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

The land that benefits from an easement is the dominant tenement.  In the example, my land would be the dominant tenement because it benefits (that is, I can actually reach my land) from the burden on your land (you having to allow me to drive on your land).

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

All servitudes do not include a dominant tenement.  For example, in the case where a utility company has the right to constrcut and maintain a powerline on your land and the land of many other individuals, there is no dominant tenement.  Technically, the utility company's interest is a profit (not an easment) but we almost always use the term easment to describe the company's interest.

A servitude can be created only by one who has a vested estate in the servient tenement. (N.D.C.C. §47-05-05)

A servitude thereon cannot be held by the owner of the servient tenement. (N.D.C.C. §47-05-06)

The extent of a servitude is determined by the terms of the grant or the nature of the enjoyment by which it was acquired. (N.D.C.C. §47-05-07)

In case of partition of the dominant tenement, the burden must be apportioned according to the division of the dominant tenement, but not in such a way as to increase the burden upon the servient tenement. (N.D.C.C. §47-05-08)

The owner of any estate in a dominant tenement, or the occupant of such tenement, may maintain an action for the enforcement of an easement attached thereto. (N.D.C.C. §47-05-10)

A servitude is extinguished:
1. By vesting of the right to the servitude and the right to the servient tenement in the
same person;
2. By the destruction of the servient tenement;
3. By the performance of any act upon either tenement by the owner of the servitude or
with the owner's assent if it is incompatible with its nature or exercise; or
4. When the servitude was acquired by enjoyment, by disuse thereof by the owner of
the servitude for the period prescribed for acquiring title by prescription. (N.D.C.C. §47-05-12)

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