een a donor and an easement holder, there is considerable flexibility in tailoring their relationship. On one hand, the land trust or other holder might assume the complete day-to-day management of the donor’s undeveloped land and have the responsibility of nurturing a particular endangered species or other purpose of the easement. Alternatively, the role of the holder could be limited to ensuring that the donor and his successors do not violate the terms of the easement through impermissible development. Or, the parties could structure the easement to provide the holder with an intermediate level of responsibility and authority. Thus, to the extent the law permits and the holder is willing, the donor could structure the easement to provide what in his view is an optimal mix of economic and family utilization of land and stewardship of resources.
However, conservation easements do present potential problems. It is possible that the land trust holding the easement might insist on more Draconian controls on the land than the donor had agreed to. On the other hand, the easement holder might be lax, and the land might not be properly cared for or the donor’s heirs might be permitted to undermine the intended land stewardship. Conditions might change so that, for instance, an endangered species sought to be protected becomes plentiful or extinguished. The Internal Revenue Service might unfairly interpret the highly technical rules for favorable tax treatment. Powerful land trusts might serve as conduits by which land intended for private stewardship comes under the control of government. In all of this, it is important that statutes permit donors to retain as much ability to deal with future changes in scientific knowledge, social and economic conditions, and family needs as is consistent with the purposes of the easement. And it is important that donors structure conservation easements to permit them to exercise that freedom.
Thus, a carefully drafted conservation easement might provide owners with a good method of maintaining private ownership, reducing tax burdens, and ensuring sensitive stewardship. The challenge for the legislator or citizen advocate is to examine each aspect of the state’s conservation easement law or Federal tax requirement to ensure that easements live up to their promise while minimizing potential burdens to families and to the community.
Easements for Conservation under the Common Law
While common law easements, real covenants, and equitable servitudes have been important aspects of property law, they do not provide an adequate foundation for the modern conservation easement. This is because the common law was resistant to the imposition of burdens upon land that were not directly related to the coordination of their use with the uses of neighboring lands. In explaining this situation, it is useful to begin with a general review of these common law methods by which owners coordinated the use of their lands.
The Common Law of Easements
An easement is "an interest in land in the possession of another" that entitles the owner of the easement to "limited use enjoyment" of that land and "is capable of creation by conveyance."2 As one recent case put it, an easement is "the right to use the land of another for a specific purpose that is not inconsistent with the general use of the property owner."3 Easements have been traced back to Roman days. By the early 19th century, their increasing importance resulted in their characterization in England as a separate category of property rights.4 Since the owner of an easement often makes substantial investments in the expectation that the land subject to it (i.e., the servient land) would be used as agreed, it is important that the restrictions survive the death of the servient owner or the sale or his parcel. Likewise, the value of the benefit of an easement is maximized when the holder is free to transfer his interest to another.
The extent to which the burdens and benefits of easements survive beyond their original owners depends on how the easements are catego