Easements in Gross: Definition, Examples, and Practical Guid...

Introduction

An easement in gross is a right to use someone else’s land for a specific purpose, but the benefit belongs to a person or company—not to a neighboring parcel. Think utility lines, pipelines, billboards, cell towers, or a named person’s right to cross land to reach a fishing spot. This is different from an appurtenant easement, which benefits another piece of land and “runs with” that land.

Because easements in gross often affect access, safety, and property value, they show up in real estate deals, construction projects, energy development, and day-to-day property management. This guide explains the basics, highlights key court decisions, and offers practical steps for owners, buyers, lenders, and counsel across the U.S.

What You’ll Learn

• What an easement in gross is, and how it differs from an appurtenant easement
• Common uses: utilities, pipelines, billboards, conservation, and personal access rights
• How these rights are created, recorded, transferred, and enforced
• Commercial vs. personal easements in gross and why that distinction matters
• Scope rules, overburdening, relocation, and maintenance responsibilities
• How easements in gross can end (release, expiration, abandonment, and more)
• Case takeaways from Miller v. Lutheran Conference & Camp Association and Columbia Gas v. Tarbuck
• Drafting and due diligence tips to avoid disputes

Core Concepts

Easement in Gross vs. Appurtenant: Who Benefits

• Easement in gross
  • Benefit belongs to a person or entity (the holder), not to a “dominant estate.”
  • Burden falls on the “servient estate” (the land subject to the easement).
  • Typical examples: power lines, gas pipelines, telecom lines, billboard rights, conservation restrictions, and named-person access rights.
• Appurtenant easement
  • Benefit attaches to another parcel (the dominant estate) and passes with that land.
  • Typical examples: shared driveways or access roads serving a landlocked parcel.

Positive vs. negative easements

• Positive easements allow the holder to do something on the land (enter, maintain, lay lines).
• Negative easements restrict the landowner from doing something (for example, blocking a view or altering habitat in a conservation easement). Many conservation easements are drafted as in gross under state statutes.

Practical effect

• With an easement in gross, there is no “neighboring parcel” that gains the benefit. The focus is on the holder’s rights and the limits on the servient owner’s land.

Commercial vs. Personal; Transfer and Apportionment

• Commercial easements in gross
  • Common for utilities, pipelines, railroads, billboards, and telecom.
  • In many states and under the Restatement (Third) of Property: Servitudes, commercial easements in gross are transferable unless the document says otherwise.
  • Apportionment (sharing the easement with others) may be allowed when it does not add an unreasonable burden to the servient estate and when the grant was exclusive or clearly permits it.
• Personal easements in gross
  • Tied to a specific person (for example, a fisherman’s access).
  • Often non-transferable and may end on the holder’s death or when the stated purpose ends, unless the instrument says otherwise.

Always read the instrument

• The deed or easement agreement controls. If it speaks to transferability, exclusivity, or apportionment, courts usually follow that language.

Creating and Recording Easements in Gross

Common ways to create

• Express grant or reservation in a deed or separate easement agreement (Statute of Frauds generally requires a writing signed by the grantor).
• Prescription (long, open, notorious, adverse, and continuous use) in states that allow prescriptive easements in gross, often for utilities.
• Estoppel (rare): where an owner permits improvements or use, the holder relies on it, and it would be unfair to revoke permission.
• Condemnation or statute: some utilities and public entities can acquire easements by eminent domain or under specific statutes.

Recording and notice

• Record the easement in the county land records to bind later purchasers and to avoid title disputes.
• A clear legal description (location/centerline, width, access routes, and any temporary workspaces) is critical. Consider a survey exhibit.

Key drafting points

• Purpose and scope (what facilities, how many, what activities).
• Location and width; relocation rights (if any) and who pays.
• Access routes, hours, gates, and keys or codes.
• Surface restoration standards, vegetation control, and safety zones.
• Maintenance duties, cost allocation, indemnity, and insurance.
• Transferability, exclusivity, and apportionment limits.
• Term, renewal, termination triggers, and removal of improvements.
• Dispute resolution and attorney’s fees.

Scope, Relocation, and Maintenance

Scope and overburdening

• The holder must stay within the stated purpose and physical limits. Adding more lines, larger equipment, or new uses not contemplated by the grant can be an overburden.
• The servient owner retains all uses that do not unreasonably interfere with the easement (farming, parking, or even building, if the structure does not conflict with access or safety).

Relocation

• Some states allow the servient owner to relocate an easement at their expense if relocation does not lessen the utility of the easement or increase the burden on the holder. Others require consent or look to the deed. Check local law and the instrument.

Maintenance and access

• The holder generally has the right and duty to maintain the facilities and the area needed for safe operation.
• Access rights should be spelled out. Many utility easements include year-round 24/7 access for emergency work.
• Damage and restoration rules should be clear to prevent disputes after maintenance or upgrades.

Duration and Termination

Duration

• Many easements in gross are perpetual, but some are limited by years, a project lifecycle, or a condition (for example, “for so long as a pipeline is in service”).

Ways they end

• Release by the holder (usually a written, recorded document).
• Expiration if a term or condition ends.
• Abandonment, which generally requires more than nonuse; there must be conduct showing an intent to give up the right (removal of facilities, written statements, or acts inconsistent with continued use).
• Merger when the same party comes to own both the servient estate and the easement right.
• Condemnation, casualty making the use impossible, or marketable title statutes that extinguish stale interests if not preserved, depending on state law.

Key Examples or Case Studies

Utility easement (commercial, in gross)

• A power company holds a recorded easement to install, access, and maintain overhead lines across private land. The right is not tied to any neighboring parcel. The company can enter to trim trees, replace poles, and repair lines, consistent with the easement’s terms.

Personal access easement (personal, in gross)

• A landowner grants a named individual the right to cross a field to reach a river for fishing. The right is personal and ends if the document says it is non-transferable and the person dies or gives up the right. If the holder later tries to assign the right to friends, a court may block that as beyond the scope.

Billboard or sign easement (commercial, in gross)

• A media company secures an easement area and sight corridor to place and service a billboard. The grant defines height, lighting, access, and vegetation control. These are typically transferable with the company’s portfolio.

Miller v. Lutheran Conference & Camp Association (Pa. 1938)

• What happened: A recreational easement in gross allowed use of land for camping and related activities.
• Court’s view: The court recognized the validity of a recreational easement in gross when clearly granted. The opinion addressed how such rights may be used and, in some settings, transferred, so long as added use does not impose an unreasonable burden on the servient estate.
• Practice point: Recreational use rights can be enforceable if described with care. If assignment or sharing is intended, say so in the document and limit headcount or intensity to avoid overburdening claims.

Columbia Gas Transmission Corp. v. Tarbuck (3d Cir. 1995)

• What happened: Property owners placed fill and otherwise interfered with a gas pipeline right-of-way. The pipeline operator sought relief to protect access and safety.
• Court’s view: The court upheld the utility’s easement in gross and the operator’s right to keep the corridor clear and accessible for maintenance and safety.
• Practice point: Servient owners cannot obstruct access or increase risk. Easement holders should document interference promptly and seek injunctive relief when needed.

Practical Applications

For property owners and sellers

• Pull the last owner’s title policy, recorded deeds, and any easement agreements.
• Order a current title search and ALTA/NSPS survey to locate corridors, widths, and access points.
• Before grading, fencing, planting trees, or building, confirm no conflict with recorded easements.
• If you need a gate, coordinate with the holder for locks, keys, or approved designs.
• For older, unclear easements, consider a relocation agreement or an amended and restated easement to fix gaps.

For buyers, developers, and lenders

• Make easement review part of due diligence: documents, survey, and site walk.
• Ask sellers about unrecorded rights or ongoing uses (for example, long-standing utility access).
• Confirm scope: number and size of lines, vehicles allowed, hours, and restoration standards.
• If the project needs to cross or parallel a corridor, secure a crossing agreement before closing.
• Check for marketable title act issues that could affect stale interests or require preservation filings.

For utilities and companies that hold easements

• Use clear centerline and width descriptions, plus exhibits that can be staked in the field.
• Include access roads, staging areas, vegetation control, and emergency entry in the grant.
• Address relocation, upgrades, replacement rights, additional lines, and safety clearances.
• Record promptly and index correctly so the easement appears in title searches.
• Establish inspection schedules and document interference with photos, GPS data, and notices.

For attorneys and drafters

• State whether the easement is exclusive or non-exclusive, transferable, and apportionable.
• Define the term, termination events, and removal of improvements at end of term.
• Allocate maintenance costs; add indemnity and insurance clauses.
• Include remedies and fee-shifting to discourage interference.
• Align the instrument with local statutes for conservation, utility, or telecom easements.
• Consider subordination or non-disturbance agreements with current lenders.

Risk and valuation notes

• Easements in gross can reduce buildable area or limit tree height, but they may also support service reliability that buyers expect (utilities).
• Appraisals should account for corridor impacts, access requirements, and any restrictions on future improvements.

State law varies

• Many rules here are common, but details differ by state. Check local statutes, the Restatement (Third) of Property: Servitudes, and state case law.

Summary Checklist

• Confirm: Is it in gross (benefits a person/company) or appurtenant (benefits land)?
• Identify the servient estate and the holder; locate the corridor on a survey.
• Read the instrument for purpose, width, access, maintenance, transfer, and apportionment.
• Record any new easement; verify proper indexing and legal descriptions.
• For commercial easements, address relocation, upgrades, and additional facilities.
• For personal easements, state whether they are transferable and when they end.
• Avoid overburdening: no new uses or added facilities without clear authority.
• Set restoration standards, vegetation control, and emergency access in writing.
• Plan for termination: release, expiration, abandonment, merger, or condemnation.
• Keep good records: inspections, maintenance logs, interference notices, and photos.
• In disputes, consider injunctive relief early to protect access and safety.

Quick Reference

This guide provides general information for a U.S. audience. Always confirm current law in your state and the exact terms of the recorded instrument.