Generally speaking, an easement is a real property interest that gives one party the right to go onto another party’s property. The easement is a real property interest, but separate from the legal title of the owner of the underlying land. While easements can take many different forms, this section will explain two different types: road and utility easements.
A road easement is an easement which allows for the construction and use of a road on a parcel of land by someone other than the property owner. The easement gives people the right to build and use the road, but it does not give them right of possession
A road easement can either be exclusive or non-exclusive. A nonexclusive easement can be for the benefit of multiple parties. An example of a non-exclusive easement would be a public easement, an easement that can be used by the public at large. An exclusive easement on the other hand, specifies the parties who have the benefit of the easement. For instance, the owner of a landlocked piece of property might have an exclusive easement to establish a road across another person’s property.
There are a number of settings in which road easements (and many other easements) can be established, and the details of the law can sometimes get extremely complicated. A simple way to create an easement is to expressly create it through a written or verbal contract between the private owner and another party.
Another classic reason to have a road easement is to allow someone access to a property which would otherwise be landlocked. This is referred to as an easement by necessity. Courts will find an easement by necessity if two parcels are so situated that an easement over one is strictly necessary to the enjoyment of the other. The creation of this sort of easement requires that at one time, both parcels of land were either joined as one or were owned by the same owner. Prior use of the easement, however, is not required. The most common example of an easement by necessity is landlocked property, so that access to a public road can only be gained by having a right of way over an adjoining parcel of land. The legal theory is the landlocked parcel was accidentally created, and the owner forgot to include an easement appurtenant to reach the road. A road easement gives them the right to pass over property belonging to someone else in order to reach the public road.
A similar type of easement is referred to as an implied easement. Implied easements generally have three requirements. First, the easement must be at least reasonably necessary to the enjoyment of the original piece of property. Second, the land must be divided in such a way that the owner of a parcel is either selling part and retaining part, or subdividing the property and selling pieces to different owners. Finally, the use for which the implied easement is claimed must have existed prior to the severance or sale.
The most commonly litigated type of easement is a prescriptive easement. In Minnesota, “the elements of proof required to establish a prescriptive easement are the same as those necessary to establish adverse possession.” Rogers v. Moore, 603 N.W.2d 650, 656 (Minn., 1999). The elements necessary to prove adverse possession are well established and require a showing that the property has been used in an actual, open, continuous, exclusive, and hostile manner for 15 years. See Ehle v. Prosser, 293 Minn. 183, 189, 197 N.W.2d 458, 462 (1972). In adopting the elements of adverse possession for prescriptive easements, Minnesota Courts have stated that they are “[s]ubject  to such differences as are necessarily inherent in the application of the rules in such cases.” mans v. Nadler, 217 Minn. 174, 14 N.W.2d 482, 485 (Minn., 1944). The Minnesota Supreme Court has stated that these inherent differences will necessarily revolve around the fundamental difference between possessing land in the case of adverse possession and using land in the case of a prescriptive easement. Furthermore, continuity of use will vary depending on the type of use, and accordingly the court should not view continuity of use in the context of a prescriptive easement as strictly as in the context of adverse possession.
A Utility easement may contain any type of utility: sanitary sewer, water, storm sewer, telephone, electric, gas, cable, etc. The Utility may be underground or overhead. These easements give companies the right to build or construct and maintain facilities within the easement area. For example, a utility easement might allow an electric company to install certain lines to provide electricity to the area. Another utility easement may allow the water company to construct pipes under your property. Such utility easements can either be owned by private or public entities such as the city you live in.
Like road easements, utility easements can technically arise in many different ways. However, the vast majority of utility easements are expressly agreed upon when the land was originally platted. These easements are attached to the property deed and will persist even when the property is transferred or sold.
One of the issues particularly important to utility easements concerns the scope of utility easements when new technologies arise. Generally, it is reasonable for the use of a specific easement to change with new technology. The legislative findings in Minn Stat. § 238.35 explicitly states that “changing technology has caused and will continue to cause over time the development of new cable communications services requiring changing uses of existing utility easements and public rights-of-way.”
Having an easement gives the utility the right to use the land, but the utility does not own it. However, the property owner may encounter certain restrictions on land use in an area covered by a utility easement. For example, if a power company has a utility easement, the property owner cannot plant tall trees in the area of the easement, because they could interfere with the power lines. Likewise, a swimming pool could not be dug out where there is a buried gas line.