For an example of an easement implied by an existing use, see Van Sandt v. Royster, Supreme Court of Kansas (1938), 148 Kan. 495 . In this case, the court found that the defendant had an implied easement to use a lateral sewer system which ran across the plaintiff's land because the persons from whom the plaintiff acquired title were aware of the sewer and knew the sewer was for the benefit of the other homeowners in the development. The court found that the plaintiff did have notice of the easement because the lateral sewer was apparent from inspection of the property.
For an example of burdens running at law where there is constructive notice, see Sanborn v. McLean, Supreme Court of Michigan (1925), 233 Mich. 227 , 206 N.W. 496 , 60 A.L.R. 1212 . Defendant's deed contained no restrictions nor did the subdivision map. Defendant still could not open a commercial business on his plot. The original owner of the subdivision sold the first set of plots with restrictions against commercial development. Although other plots were later sold without the commercial development restriction, the owners of these plots were held to the restriction because there was a implied negative easement at the time those lots were sold. The defendant had constructive notice of the negative easement because the recorded deeds to other lots in the subdivision contained the restriction.
For an example of equitable servitude, see Tulk v. Moxhay , Court of Chancery, England,1848, 2 Phillips 774, 41 Eng. Rep. 1143. This was the first case that found that covenants are enforceable as equitable servitudes against subsequent purchasers with notice.
It is worth noting that England did not have an effective system of public records of land titles until 1925. One result was that English judges were reluctant to expand the range of negative easements--rights by one property owner to have another property owner not do something. Negative easements are harder to discover by inspection.
"The second paragraph of the assignment [filed in1971] states that the assignors intended to convey, and by this instrument conveyed to the assignee [Tours], "all interest of whatsoever nature in all working interests and overriding royalty interest in all Oil and Gas Leases in Coffey County, Kansas, owned by them whether or not the same are specifcially enumerated above ...." The interest of Grace V. Owens in the Kufahl lease ... would be included under this general description.
On January 30, 1975, the same Grace V. Owens executed and delivered a second assignment of her working interest in the Kufahl lease to the defendant, J.R. Burris. Prior to the date of that assignment, Burris personally checked the records in the office of the register of deed and, following the date of the assignment to him, Burris secured an abstract of title to the real estate in question. Neither his personal inspection nor the abstract of title reflected the prior assignment to Tours.
...
Burris admits that the general description and language used in the second paragraph of Owens's assignment to tours was sufficient to effect a valid transfer ... as between the parties to that instrument. Burris contents, however, that the general language ... which failed to state with specificity the names of the lessor and lessee, the date of the lease, any legal description, and the recording data, was not sufficient to give constructive notice to a subsequent innocent purchaser for value without actual notice of the prior assignment. "
(Prager, J. in Luthi v. Evans, Supreme Court of Kansas, 1978 223 Kan. 622, 576 P.2d 1064.)
Burris had won in the district court, lost in the Court of Appeals, and was appealing to the state Supreme Court, which found that Owens' assignment would have been sufficient if Burris had had actual knowledge of the transfer, but was not sufficient to give him constructive knowledge, and so reversed the Court of Appeals and affirmed the judgement of the district court.
The earliest recording acts were what are now called "race statutes," meaning that, if two different people had purchased the same property, the first to record--the one who wins the race to the recording office--gets it. Notice statutes, under which the second purchaser lost, even if he recorded first, if he knew of the prior (unrecorded) purchase, developed later. While this seems just, it raises the obvious practical problem of proving what the second purchaser did or did not know. For a more extensive discussion, see Duckminier and Krier, Property, pp. 711-721, much of which deals with Messersmith v. Smith, Supreme Court of North Dakota, 1953, 60 N.W. 2d 276 .
Some sorts of easements, such as fishing and mining rights, are held by some courts to be indivisable. If A, the owner of a lake, sells B the right to fish in it, B may transfer part of that right to C only if B and C will thereafter exercise the right jointly.
One possible defense of this rule is that multiple independent ownership (either B or C may license other people to fish anywhere they like in the lake) will result in overuse, both from the standpoint of economic efficiency (for the usual reasons associated with overuse of a commons) and relative to what the owner of the property could reasonably expect when he granted the easement. For a long discussion, see Miller V. Lutheran Conference & Camp Association, Supreme Court of Pennsylvania, 1938, 331 Pa. 241, 200 A. 646, 130 A.L.R. 1245 . The earliest statement of the principle is Mountjoy's Case, Co. Litt. 164b, 165a, which held that the grantee of a right to dig for ore "must assign his whole interest to one, two, or more; but then, if therere be two or more, they could make no division of it, but work together with one stock."
Other courts have held that recreational easements (for hunting, fishing, boating and camping) are not assignable, presumably on the ground that the grantor was agreeing to the level of use that was expected from a particular known grantee, not to whatever level of use any future assignee might choose. See "Note, The Easement in Gross Revisited: Transferability and Divisibility Since 1945," 39 Vand. L. Rev. 109 (1986).