Montana Easement Law

An easement is an interest in the land in and over which it is enjoyed.  An easement differs from a license in that a license bestows no legal interest in the land, but is rather a personal privilege to do a particular act on the land.

How Easements Are Created in MT

Easement may be granted which benefit a particular parcel of land or which benefit a particular individual.  When an easement benefits a specific parcel of land it is referred to as an easement appurtenant.  Easements appurtenant are characterized by the existence of a dominant estate and a servient estate.  The dominant estate is the property which benefits from the easement.  The servient estate is the property which is burdened by the easement.

Easements that benefit a specific individual, on the other hand, are referred to as easement in gross.   An easement in gross generally terminates upon the death of the easement holder.  Moreover, unless the parties expressly agree otherwise, an easement in gross cannot be sold or assigned.

Express Easements – An express easement may be established by deed, grant, or other written instrument.  An express easement should specify the location of the easement, its dimensions, the purpose or purposes for which the easement may be used, and who may use it.  Where an express easement is vague or ambiguous, courts will look to the circumstances surrounding the transaction in order to ascertain the intention of the parties.

Easement By Necessity – An easement by necessity will be found upon a showing of unity of ownership and strict necessity.

• Unity of Ownership – Unity of ownership exists where a parcel of land is owned by one person, who at some point, sells off a portion of that land that has no outlet to a public road.
• Strict Necessity – Montana courts define “strict necessity” as a lack of practical access to a public road for purposes of ingress and egress.  Strict necessity must exist both at the time unity of title is severed by conveyance and at the time of exercise of the easement.

Easements By Implication – To establish an easement by implication, a claimant must prove three elements:

1. Separation of title;
2. A long-standing, obvious use before separation of title, which demonstrates that the use was meant to be permanent; and
3. Necessity of the easement for the benefit of the parcel granted or retained.

Easements By Prescription – A claimant may establish an easement by prescription by proving that he has used the property over which he claims an easement openly, notoriously, exclusively, adversely, uninterruptedly, and continuously for a period of five years.

Easement Boundary Disputes

Easement issues may arise for a variety of reasons.  Poorly drafted easement agreements may give rise to confusion and disputes over the location and dimensions of the easement as well as the intended purpose of the easement and who may use the easement.

Other easement issues may involve allegations of:

• Misuse;
• Interference;
• Abandonment;
• Merger; and
• Termination

Help from a Real Estate Lawyer for Easements in Montana

The best way to prevent easement disputes is to hire a qualified real estate attorney to draft and record the easement.  If you are currently involved in an easement dispute, do not resort to self-help.  Instead, seek the advise of a qualified real estate attorney who will review the facts of your case and advise you as to the best strategy for protecting your interests.