Implied easement (by prior use)

An implied easement by prior existing use arises from the circumstances of a severance rather than from any written grant. Before one parcel is divided, an owner may use part of the land to benefit another part — a driveway, a drainage line, a path to a well. When the parcel is split into two ownerships, courts may imply an easement to continue that use if it was apparent, continuous, and reasonably necessary to the enjoyment of the conveyed (or retained) parcel at the time of severance. The doctrine reflects the presumed intent of the parties: they are presumed to have intended the visible, established use to continue. Standards for the degree of necessity required vary by state, which is exactly where per-state research matters.

The elements

• Common ownership of the whole parcel before the split (severance)
• An existing use of one part for the benefit of another before the split
• The use was apparent and continuous at the time of severance
• The use is reasonably necessary to enjoyment of the dominant parcel