Written by attorneys · grounded in primary & secondary sources — see below
A nonpossessory interest in land that entitles its holder to perform acts on the servient estate that would otherwise constitute a trespass. The interest arises by grant or other recognized means and burdens the servient parcel while benefiting the dominant parcel or the holder personally.
Sources & Authorities
How it applies
Common Examples
2
Pipeline and Tractor Access Across Field
Fairview Farm Co-op obtained a recorded agreement from Lopez allowing installation of underground irrigation pipes across Lopez's field and tractor travel over a marked lane to reach a well. Years later Lopez erected a fence blocking the lane and claimed the co-op could only walk in for inspections. The co-op sued. The court recognized the co-op's recorded rights as an affirmative easement because the agreement authorized repeated physical uses of Lopez's land that would otherwise be trespasses. Lopez could not unilaterally revoke or narrow those rights.
Overhead Conveyor Across Warehouse Yard
Riverton Manufacturing's recorded deed granted it the right to construct and operate an overhead conveyor and catwalk across the airspace above Harbor Logistics' loading yard. When Riverton widened the structure, Harbor sued to quiet title. The court held that Riverton possessed an affirmative easement authorizing ongoing physical occupation and use of Harbor's airspace. Harbor's title remained subject to that use right.
Select any source to read its text and confirm it supports the definition.
Restatements
Casebooks
Course Outlines
Study Supplements
Dictionaries
Bormann v. Board of Supervisors in and for Kossuth County584 N.W.2d 309 (Iowa 1998)
Common questions
Frequently Asked
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How does an affirmative easement differ from a license?+
An affirmative easement creates a nonpossessory property interest that runs with the land and binds successors. A license is a revocable personal privilege that creates no interest in land and does not bind subsequent owners. Written recorded grants of ongoing use rights are treated as easements rather than licenses.
Supporting sources
What acts qualify as the subject of an affirmative easement?+
Acts that would otherwise amount to trespass or nuisance on the servient land qualify. These include installing and maintaining pipes, driving vehicles across a lane, operating conveyors in airspace, or entering to inspect and repair equipment.
Supporting sources
Does an affirmative easement require a writing or recordation?+
Creation by express grant ordinarily requires a writing under the statute of frauds. Recordation provides notice to subsequent purchasers and ensures the burden runs with the servient land. Easements may also arise by prescription or implication without an initial writing.
Supporting sources
71 P.3d 938 (Colo. 2002)Property
…profit' in this Restatement." The Restatement distinguishes between easements and profits stating "[p]rofits à prendre are like affirmative easements in that they create rights to enter and use land in possession of another. However, they also create the right to remove something from the land." Restatement, supra , § 1.2(2) cmt. (a).…