Easement Law

Idaho is riddled with easements, some written and some unwritten. Some easements are readily identifiable because they house power lines, railroads, highways or other visible infrastructure. Others are unseen because they house buried pipes or cables or because the easement has simply not been put into action. At Racine Olson we have decades of experience identifying, creating, modifying, extinguishing, and resolving disputes over easements of all types.

An easement is the right to cross or use someone else’s land for a specific purpose. The owner of the easement does not own the land, just the right to use it. The owner of the land may also use the area covered by the easement as long as they do not interfere unreasonably with the purpose of the easement. For example, an easement for a buried gas line through a farm field typically does not prevent the landowner from farming over the gas line.

Some easements may be used by the public generally while others are limited to specific individuals. Land that is burdened by an easement (i.e. the land over which the easement runs) is called the “servient estate” whereas land that is benefitted by an easement (such as land that is accessed by an easement) is called the “dominant estate.”

Easements can be created in one of four ways in Idaho. First, the person or entity who wants the easement can purchase it from the landowner. To properly do this requires that the parties survey the easement and sign an easement agreement that is recorded in the public real property records of the county where the easement is located. (More information about easement agreements is found below.)

Second, in some circumstances an easement can be acquired by condemnation, also known as eminent domain. The Idaho Legislature decides who has the right to acquire property or easements by eminent domain, and for the most part that right is limited to governmental and quasi-governmental entities such as counties, cities, highway districts. Public utilities such as Idaho Power, Rocky Mountain Power, and Intermountain Gas also have been given the right to condemn easements as long as they comply with certain restrictions imposed by the Legislature. Quasi-governmental entities such as water and sewer districts likewise have eminent domain authority.

People are often surprised to learn that the Legislature has in a few limited instances granted the right of eminent domain to private entities and individuals, including canal companies and even individual farmers who need to build ditches or pipes to get water from a river or creek to their property.

A third way to acquire an easement is simply by using the property for many years without the permission of the landowner. This is called “prescriptive use,” and many old roads and highways in Idaho were originally created this way. Prescriptive easements most commonly exist for access roads and paths, but can also exist for floodways, irrigation ditches, and even light and sound.

Finally, in some instances an easement may be implied to exist even if it is not recorded in a written document and has not been established by prescriptive use. The most common occurrence of this is when a landowner splits off and sells off a portion of their property that does not have frontage on a road, without including an easement to access that property. To avoid the parcel being landlocked Idaho law assumes an easement was created by implication.

We advise and represent clients in all types of easement cases. Our experience includes:

• Negotiation and preparation of numerous easement agreements for roads, driveways, pipelines, irrigation ditches, and other infrastructure.
• Defense of landowners in Federal court to prevent the City of Idaho Falls from condemning an easement for power lines through property located outside city limits.
• Defense of claim for damages made by a homeowner against a farmer in Bear Lake County for irrigation water that historically flooded onto the homeowner’s property.
• Representation of canal companies in enforcing easement rights to clean, maintain, and repair irrigation canals in Madison County, Power County, Bannock County, and Franklin County.
• Defense of landowner against attempt by neighbor to condemn irrigation easement in Fremont County.
• Representation of numerous landowners in Oneida County and Bannock County in connection with Idaho Power’s installation of high voltage power line.
• Representation of landowners affected by public road and highway projects.

A written easement is always preferable to an easement created by prescriptive use or implication, since only written easements are found in county property records and appear on title insurance policies. Written easements may be created by a deed, contract, restrictive covenant, or other document. However, many written easements do not contain adequate information about the scope of the easement. Indeed, many easement conflicts arise because the document that created the easement does not clearly define the scope of the easement, such as who may use the easement, how it may be used, for how long, whether fences or gates may be installed, what type of maintenance obligations exist, whether the easement is transferrable, and when the easement will expire. Courts assume that easements are created to last forever if the easement agreement does not say otherwise.

Written easements should always be recorded in the public real property records of the county where the easement is located or they may not be enforceable against subsequent owners of the property. To be recorded the document must contain a proper legal description as well as notarized signatures. Thus, a survey is often required in connection with an easement.

Because easements affect how property may be used, they inherently add value to the dominant estate and usually diminish value of the servient estate. Moreover, easements force the owners of the dominant and servient estates to interact with each other, potentially giving rise to conflict when the parties have differing expectations as to how the easement should be used. Consequently, it is essential that easements be drafted by attorneys who have the experience and expertise to properly define the scope of the easement in a way that meets the expectations of both parties and can be clearly understood but their successors in interest.