rized in an elaborate common law classification scheme. For our purposes, the most important classification is whether easements are appurtenant or in gross. An easement appurtenant is intended to coordinate the uses of adjoining parcels of land. It is created for the benefit of the then-owner of the dominant land and his successors. On the other hand, the easement in gross is not attached (i.e., appurtenant) to a dominant parcel, but rather provides a benefit that is "personal" to the holder and independent of his ownership of land.
The common law singled out for special treatment the easement with a profit, which permits the holder to remove substance from the servient land. Common examples involve mining, timber cutting and hunting.
Easements may also be categorized as negative or affirmative. Negative easements provide the holder with a veto power over uses of the servient land that otherwise could be engaged in by the owner. An affirmative easement permits the owner to enter the servient land or to engage in activities that otherwise could be blocked by the servient owner, such as engaging in a nuisance.5
The easement came into being and flourished because it filled a practical need. Neighbors wanted to coordinate agricultural uses and, later, commercial and residential activities. Easements allowed separate parcels to be developed as if they had a single owner who would want to maximize total returns. So long as the agreement made the combined value of the parcels greater, it did not matter that not every party to an easement benefited equally. Even if some parcels lost value, the dominant owners could purchase the consent of the servient owners and still have a net gain. To illustrate, an agreement among A, B, and C that would increase the value of A’s land and B’s land each by $150,000 and would reduce the value of C’s land by $150,000 would be entirely feasible. If A and B each paid C $100,000, every one of the parties would wind up $50,000 better off. The community would be better off, too, since the total value of its land would increase by $150,000.
If C had made an ordinary contractual promise to restrict the use of his land, a subsequent purchaser of it would not be bound, and C subsequently might not be found or might not be able to pay a court’s award of money damages against him.6 The result would be that A and B each would have paid $100,000 and obtained no lasting benefit. Landowners thus would be discouraged from entering into such agreements in the future. To prevent this result, the common law provided that easements appurtenant automatically would inhere in the estate in land acquired by the successor to an original party without the need for any mention of the easement in the deed or will.7 This means that the use of the burdened land would be restricted in the hands of C’s purchaser just as it would had C continued to own it.
Likewise, the value of easements with a profit also could be maximized by free alienability. This type of easement in gross had not been permitted in medieval times, but later became widely accepted in England and America. As the common law evolved, the benefit of commercial easements in gross and most non-commercial easements in gross established for severance purposes were made freely transferable.8
However, with a few exceptions,9 the common law has treated most easements in gross that were not associated with profits very differently. In England, such easements are regarded not as interests in land, but rather as rights that are granted in favor of an individual and that die with that individual.10 In America, easements in gross have been the subject of great controversy. Some authorities have argued that, consistent with the general common law rule pertaining to interests in land, easements in gross should be freely alienable.11 Others have countered that novel burdens on land are apt to be detrimental to value, to create traps for the unwary over the generations, and to increase the difficulty and expense in land transfers generally (referred to in the common law as cr