tal 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 creating "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