34
automatically transferred with the dominant estate—meaning that it “runs with the land.”
149
Under the majority U.S. common law authorities, an appurtenant easement does not require the
dominant and servient estates to be adjacent to one another—an easement may be appurtenant to
noncontiguous property if both estates are clearly defined and if it was the parties’ intent that the
easement be appurtenant.
150
There are some jurisdictions, however, that require the estates
affected by an appurtenant easement to be adjacent.
151
In such jurisdictions, there are a number
of ways to meet—or potentially relax—the adjacency requirement while furthering the goal of
private lands conservation. The following list is a brief sample of such methods:
a. Purchase by NGOs of land that can serve as adjacent estates
152
One method for meeting an adjacent lands requirement is for an NGO to acquire—by
purchase or donation—land adjacent to the property to be subject to the easement. This allows
the NGO’s property to be the dominant estate, and the NGO to hold the easement over adjoining
lands. However, with respect to the Dominican Republic, it is unknown whether a conservation
NGO could buy land in this manner for the purpose of creating a conservation easement with
adjacent, private property.
149
Roger Bernhardt and Ann Burkhart, Real Property in a Nutshell 191, 214 (4th ed. 2000). An interest “runs with the
land” when a subsequent owner of the land has the burden or benefit of that interest. An appurtenant easement runs
with the land since the servient estate remains subject to it after being transferred, and the dominant estate retains the
benefit after being transferred. With an easement in gross, the benefit cannot run with the land as there is no dominant
estate—however, provided certain requirements are met, the burden can run with the land.
150
Verzeano v. Carpenter, 108 Or.App. 258, 815 P.2d 1275 (1991) (“[W]e agree with the majority view that an
easement may be appurtenant to noncontiguous property if both tenements are clearly defined and it was the parties’
intent that it be appurtenant.”) (citing 7 Thompson on Real Property § 60.02(f)(4)); see also Day v. McEwen, 385 A.2d
790, 791 (Me.1978) (enforcing reserved “right of an unobstructed view” over servient tenement where dominant
tenement was on the other side of a public road); Private Road’s Case, 1 Ashm. 417 (Pa.1826) (holding that a
circumstance in which a navigable river intervenes between a meadow and an island is no legal reason why a way
across the former should not be appurtenant to the latter); Saunders Point Assn., Inc. v. Cannon, 177 Conn. 413, 415,
418 A.2d 70 (1979) (holding that while an easement appurtenant must be of benefit to the dominant estate, the servient
estate need not be adjacent to the dominant estate); Woodlawn Trustees, Inc. v. Michel, 211 A.2d 454, 456 (1965)
(holding that in cases of noncontiguous parcels, the easement over the land of the servient tenement is valid and
enforceable if, by means of a right of way of some sort which traverses land of another, the servient tenement benefits
the dominant tenement).
151
Environmental Law Institute, Legal Tools and Incentives for Private Lands Conservation in Latin America:
Building Models for Success 23 (2003).
152
The information in Part I § A.2 (a)–(e) is taken primarily from Environmental Law Institute, Legal Tools and
Incentives for Private Lands Conservation in Latin America: Building Models for Success 23–24 (2003).