In his 1968 book The Last Landscape, William Whyte wrote this extraordinarily clear explanation of what easements are and how they relate to our historical conception of property rights:
…Through the ancient device of the easement, we can acquire from an owner a right in his property–the right that it remain open and undeveloped.
To understand the device, let us go back to the origin of the term “fee simple.” In medieval times, a great lord would grant a man a tract of land to use in return for which the man would be obligated to perform certain services, or fees. The land with the fewest strings attached–the simplest fee, you might say–was the closest to outright ownership. But there were always strings.
There still are. The fee simple has never been absolute or indivisible, nor, laissez-faire economics to the contrary, have landowners inherited license to do anything they please with the land. What the landowner has is a bundle of rights–the right to build on the land, for example, or the right to grow timber on it, or to farm the land. Some rights he does not have: his riparian rights to a stream running through his property may not include throwing a dam across it. All of his rights, furthermore, are subject to the eminent domain of the state.
When we wish to acquire a man’s property, we usually buy the whole bundle of rights from him–the fee simple. But we can buy less. To achieve a particular purpose, we may only need one or a few rights in the property. We buy these, in the form of an easement, and leave the rest of the bundle with the owner.
One class of easements is positive; that is, we acquire the right to do something with part of the man’s property. A public agency may buy a right of way for a public footpath or a hiking or bicycle trail; it may buy the fishing rights so the public may use the banks of a stream. Utilities may buy a right to lay a pipeline or high-tension wires across the property, and they have not the slightest qualms about using condemnation powers to do it. Businessmen may buy rights to cut timber on the land, to graze livestock on it, or to dig minerals under it. They may buy air rights to build a structure above it, or to make sure that nobody else does. When a property is being subdivided, municipalities require the developer to give easements for sewer lines and roads. There are few properties that do not have some sort of easement on them.
The other main category of easement is negative. In this case we do not ask for physical access to the property; what we do is to buy away from the owner his right to louse it up. Through a conservation or scenic easement we acquire from the owner a guarantee that he will not put up billboards, dig away hillsides, or chop down trees; with a wetland easement, we acquire a guarantee that he will not dike or fill his marshland. Except for the restrictions, he continues to farm or use the land just as he has before; one of the main points of the easements, indeed, is to encourage him to do just that.
This is the first installment in the Pinchy Dot Org City Planning Virtual Symposium. Expect to see a lot more of this sort of thing now that I’m in graduate school.