uch of my legal practice involved easements. So what is an easement? An easement is a real property right authorizing the easement owner to do something or maintain something on the land of another. They are usually created by a granting instrument such as a deed. Most easements are “appurtenant,” meaning they are attached to and benefit a particular property. The benefited property is known as the “dominant” estate. Perhaps the most common type of easement is an ingress and egress easement, whereby the owner of the dominant estate has the right to cross other property, known as the “servient estate.”
Easements take many forms. Some of the oldest and most significant easements in Colorado are ditch easements, whereby the owner of an irrigation ditch has the right to run the ditch through other people’s properties. There are also drainage easements, flood easements, utility easements, and even “view” easements whereby the owner of the dominant estate can require the servient estate to keep structures and vegetation from blocking the dominant estate’s mountain view. Easements do not have to be appurtenant – they can also be “in gross,” that is, not attached to any particular property. An example would be a fishing or hunting easement.
Most easements are not “exclusive.” In other words, the servient estate’s owner may still make use of the burdened property so long as he or she does not unreasonably interfere with the easement. Because of this joint use of the same property, conflicts often arise:
- Permissible uses of the easement.
- Alterations of the easement to the detriment of one or more parties.
- Whether the easement can be moved.
- Easements created by years of use (prescriptive easements).
- The dimensions of the easement.
A fairly recent Colorado Supreme Court case reviewed the law of easements in general and provided guidance for attorneys and landowners regarding the scope and interpretation of easements created by grant. This case is known as Lazy Dog Ranch vs. Telluray Ranch Corporation. In this case, the Supreme Court of Colorado explained that the rights of the servient and dominant owners must be balanced with the goal of reasonable enjoyment for both estates. The Court also provided a complicated framework for interpreting written easements based on the text of the document and surrounding circumstances.