aintaining 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 categorized 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 to