The Assignability of Easements, Profits and Equitable Restrictions

Abstract

The concept of an interest "running" with particular realty is employed in connection with assignments of easements and profits to develop rules which are reasonably clear and free from dispute in most situations. The burden, on the servient land passes with such land to all takers thereof. In theory this end of the easement or profit runs with the servient tenement itself, rather than merely with an estate therein, and hence is binding upon even adverse possessors of the freehold. The benefit of an easement appurtenant to some dominant tenement passes freely therewith even without separate mention. The benefit of a profit appurtenant passes in similar fashion. The only limitation is that the servient land must not be "surcharged," or unduly burdened, by certain transfers as described below.s The benefit of a profit in gross is freely assignable from one person to another, subject only to the rule that where assigned to more than one the new takers must "work together with one stock" that is, in common as one person. But when we come to easements in gross, a serious difference of opinion exists on the question whether or not they are transferable. A large portion of this essay will be devoted to a consideration of this particular problem.