Where the owner of a building has acquired an express or implied easement of support in the adjoining land, the excavator is absolutely liable for the damage to the land as well as the buildings. The rule regarding easements is stated in the Restatement, Property, § 476, comment a. Accordingly, an easement created by implication arises as an inference of the intention of the parties to a conveyance of land and to draw an inference of intention from such circumstances, they must be or must be assumed to be within the knowledge of the parties. The inference drawn represents an attempt to attribute an intention to parties who had not put the intention into writing, or to parties who actually had not consciously formed an intention. In the latter case, which happens often, facts will be examined to attribute an intention which they did not actually have, but would have had had they actually foreseen what they might have foreseen from information available at the time of the conveyance.[i]
In determining whether the circumstances under which a conveyance of land is made imply an easement, factors including the nature of the claimant, the terms of the conveyance, consideration, the extent of necessity of the easement to the claimant, whether reciprocal benefits result to the conveyor and the conveyee, are important. In addition, the manner in which the land was used prior to its conveyance, and the extent to which the manner of prior use was or might have been known to the parties are also considered.
Three things are essential to create an easement by implication upon severance of unity of ownership, viz.: “(1) a separation of title; (2) the use which gives rise to the easement shall have been so long continued and apparent as to show that it was intended to be permanent; and (3) that the easement is necessary to the beneficial enjoyment of the land granted.”[ii] A subsequent change of conditions will not defeat an easement and such a change cannot create an easement. The burden of proving the necessity of easement is upon the party who claims the easement.[iii]
In the matter of a party wall between two pieces of land, which qualifies as an easement to the adjacent owner, it is to be noted that a grant of a portion of a tract of land with a building upon it impliedly grants support for the wall only in its existing condition, and the grantee has the burden of supporting the increased weight due to additions to the wall in case of excavation by the grantor on the adjoining property. However, courts have held that it is not essential that the wall should rest equally upon the land of the adjoining owners in order to maintain the easement of support.[v] If the wall has been erected between two buildings, or has been used between or as a part of two buildings under circumstances giving to the owner of each an easement of support in the wall, the owner has a right to retain it, though the building may be chiefly or wholly upon or may overhang the land of the other owner. Moreover, an owner who has acquiesced in the erection of a party-wall has no right to tear it down, though on his own land, and thus destroy the support of the building of the adjoining owner. Such an act will destroy the easement rights of the adjacent owner. [vi]
[i] Restatement, Property, § 476, comment a.
[ii] Romanchuk v. Plotkin, 215 Minn. 156 (Minn. 1943)
[iii] Olson v. Mullen, 244 Minn.31 (Minn.1955)
[iv] Briggs v. Klosse, 5 Ind. App. 129 (Ind. Ct. App. 1892)
[v] Christensen v. Mann, 187 Wis. 567, 597 (Wis. 1925).