South Dakota Easement Law

An easement is a limited right of use over the property of another. Easements may be established by grant or reservation and may be affirmative or negative, appurtenant or in gross, and express or implied. South Dakota law also recognizes easements by prescription.

By Grant or Reservation

A landowner may grant an easement to someone else or he may reserve an easement in himself. When a landowner grants an easement to someone else, he is giving that person a non-possessory interest in and a right of use over his property. On the other hand, when a landowner reserves an easement in himself, it benefits his retained property and gives him the right to use the property he has conveyed for a specific purpose.

Affirmative Easements vs. Negative Easements

An affirmative easement gives a person the right to use the land of another for a specific purpose. Examples of affirmative easements include:

• Right-of-way Easements;
• Driveway Easements; and
• Utility Easements.

A negative easement prohibits a landowner from using his property in a particular manner. Conservation easements and light and air easements are examples of negative easements.

Appurtenant Easements vs. Easements In Gross

An appurtenant easement is an easement that benefits an adjoining parcel of land. Easements appurtenant consist of a dominant estate and a servient estate. The dominant estate is the land which benefits from the easement; the servient estate is the land which is burdened by the easement.

Easements in gross benefit a particular individual. Easements in gross generally cannot be sold, assigned, or inherited.

Express Easements vs. Implied Easements

Express easements are created by written agreement between a grantor and a grantee. Express easements should include the following provisions:

• The location of the easement;
• The dimensions of the easement;
• The permitted use(s) of the easement;
• Which party will be responsible for the payment of property taxes and insurance;
• Which party will be responsible for maintaining the easement;
• Liability;
• Indemnification;
• Default;
• Termination; and
• Abandonment

Implied easements are inferred based on the intent of the parties and the facts and circumstances surrounding the transaction. There are several kinds of implied easements:

• Easements by Estoppel;
• Easements by Necessity; and
• Easements by Implication From Prior Use.

Easements By Prescription

An easement by prescription arises from the open, continued, and unmolested use of the land of another for the statutory period. In South Dakota the statutory period to acquire an easement by prescription is twenty years.

Easement and Property Boundary Line Disputes

An easement dispute may involve allegations of encroachment, misuse, interference, trespass, and abandonment. Moreover, easement disputes frequently arise because of poorly written easement agreements or because the parties are unclear of their rights and obligations under the easement agreement.

Help from a Real Estate Lawyer in South Dakota

One of the biggest mistakes a person who is involved in an easement dispute can make is to resort to self-help. Not only can self-help exacerbate the situation, it can also result in criminal prosecution. Therefore, it's best for anyone involved in an easement dispute to hire an experienced real estate attorney who can assess their case and recommend a viable course of action.