eating "clogs on title").12
Conservation easements are "negative" and "in gross" under the traditional classification scheme. They are negative easements because the owner of the servient land has the obligation not to do something (i.e., not to engage in uses inconsistent with the conservation purposes for which the easement is established). The holder of the easement has a veto power over such inconsistent uses. Conservation easements are in gross because their object is not to benefit the owners of adjoining parcels. Rather, the owner of the easement need own no land in the area, and the easements are intended to benefit a broader community. At common law, the benefit of such an easement did not run with the land. The reason for this largely is a remnant of feudal and medieval times. Most people were illiterate and record keeping was primitive, thus introducing justifiable fears that complicated rights would make land ownership difficult to keep track of. It also was the result of undeveloped economic and social relationships, which made promises regarding land use for the benefit of those beyond the tiny village or manor difficult to comprehend. And, of course, our modern notion of "conservation" hardly was discernable.
The Common Law of Real Covenants
Just as easements permitted private regulation of land uses through real property law, real covenants subsequently evolved to permit regulation through contract law. The crucial issue is whether the promise (i.e., the covenant) is enforceable only against its maker, or whether it "runs with the land" so as to bind successors as well. In order for a real covenant to run, the common law propounded three tests: whether the covenant "touched and concerned" the land; whether the parties intended that successors be bound: and whether the parties had an otherwise close relationship, termed "privity of estate." Whether a given covenant had a close enough tie to the land (as opposed to the owners) so as to "touch and concern" has always been a vexing problem. Privity of estate in England was limited to those in a landlord-tenant relationship. In America, a buyer-seller relationship sufficed.
The influential Restatement of Property has taken the view, as do the laws of many states, that the burden of a real covenant is not imposed on successors to the owner of the servient estate if the benefit does not run with the land to be benefited.13 Furthermore, real covenants, like most contract rights, were enforceable only through money damages. This would be an entirely unsatisfactory remedy in the case of conservation easements, which must bind the burdened land, even though the benefit does not pertain to adjoining parcels, and where money damages are an insufficient remedy for violations.
The Common Law of Equitable Servitudes
The privity requirement for real covenants proved to be unduly technical and difficult to comply with. Also, money damages were viewed as less effective that the ability to enjoin violations of a covenant. For these reasons, courts of equity developed yet a third layer of controls, the equitable servitude. In the case of restrictions that were appurtenant, it was easy. If the parties intended that their successors be bound, if the subject matter of the agreement touched and concerned the land, and if the successor to ownership of the servient tenement had reason to know of the restriction, he was bound to it. Again, however, things were not so simple when a servitude in gross was concerned. If the benefit did not run with the land authorities differed as to whether the burden ran with the land so as to bind a succeeding owner.14 Once again, resistance to new types of restrictive arrangements prevailed.
Common Law Reform Doesn’t Address the Conservation Easement Problem
During the past few decades, American courts and legal scholars have concluded that the common law system of three overlapping but subtly different bodies of law for the private coordination of land use makes no sense. The new version of the Restatement of Property now being developed by the Am