---
title: "Easement by Implication"
type: Legal Rule
source: https://casebriefly.com/legal-rules/easement-by-implication
---

# Easement by Implication

An easement implied from the circumstances of a conveyance when a prior use of one part of the property for the benefit of another part existed before severance and is reasonably necessary to the enjoyment of the dominant parcel.

## Definition

An easement by implication (also called an implied easement from prior existing use) arises when a property owner uses one part of the property for the benefit of another part (a quasi-easement) and then conveys one of the parcels to another person. If certain conditions are met, the law implies an easement based on the presumed intent of the parties, even though no easement was expressly created in the conveyance.

The three traditional requirements are: (1) common ownership of both parcels prior to severance; (2) a prior use of one parcel that benefited the other in a manner that was apparent and continuous; and (3) reasonable necessity of the easement at the time of severance. The 'apparent' requirement does not necessarily mean visible -- it means that a reasonable inspection of the property would have revealed the use (for example, underground pipes may be 'apparent' if their existence would be discoverable upon inspection). The reasonable necessity standard is less demanding than the strict necessity required for an easement by necessity.

Easements by implication can be either appurtenant (benefiting a specific parcel) or, more rarely, in gross (benefiting an individual). They may benefit either the grantee (implied grant) or the grantor who retains the dominant parcel (implied reservation), though courts traditionally scrutinize implied reservations more closely because the grantor had the opportunity to include an express easement in the deed. The scope of an implied easement is determined by the nature and extent of the prior use.

## Elements

- Common ownership of both parcels prior to severance
- A quasi-easement existed: prior use of one part of the property for the benefit of another
- The prior use was apparent (discoverable upon reasonable inspection) and continuous
- Reasonable necessity of the easement for the enjoyment of the dominant parcel at the time of severance
- The easement may arise as an implied grant (benefiting the grantee) or an implied reservation (benefiting the grantor)

## Key Case

Van Sandt v. Royster, 148 Kan. 495 (1938)

## Landmark Cases

| Name | Citation | Significance |
| --- | --- | --- |
| Van Sandt v. Royster | 148 Kan. 495 (1938) | The leading case on implied easements from prior existing use, holding that an underground sewer line created an implied easement even though it was not visible, because it was 'apparent' upon reasonable inspection. |
| Othen v. Rosier | 148 Tex. 485 (1950) | Distinguished easement by implication from easement by necessity, analyzing the prior use and necessity requirements for each. |
| Romanchuk v. Plotkin | 215 Minn. 156 (1943) | Addressed the standard for apparent use in the context of an implied easement, holding that the use must be discoverable upon reasonable inspection of the premises. |

## Exam Tips

- Look for facts showing a prior use that existed BEFORE the severance. If there was no prior use, consider easement by necessity instead.
- The 'apparent' requirement does not mean visible to the naked eye -- it means discoverable upon a reasonable inspection. Underground utilities can be apparent.
- Courts are more willing to imply an easement in favor of the grantee (implied grant) than in favor of the grantor (implied reservation), because the grantor could have included an express easement.

## Common Mistakes

- Equating 'apparent' with 'visible' -- apparent means discoverable upon reasonable inspection, not necessarily visible on the surface.
- Confusing the reasonable necessity standard (for easement by implication) with the strict necessity standard (for easement by necessity) -- implication requires less necessity but demands proof of prior use.

## Mnemonic Or Memory Aid

Implication = Prior use Implied. Three requirements: Common ownership, Apparent prior use, Reasonable necessity (CAR).

## Related Rules

- easement-by-necessity
- easement-by-prescription
- covenant-running-with-the-land

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Source: [Easement by Implication — CaseBriefly](https://casebriefly.com/legal-rules/easement-by-implication)