CHAPTER 47-05 SERVITUDES 47-05-01. Easements attached to other lands

The following land burdens or servitudes upon lands may be attached to other land as incidents or appurtenances and then are called easements: 1

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The right of pasturage

The right of fishing

The right of way

The right of taking water, wood, minerals, and other things

The right of transacting business upon land

The right of conducting lawful sports upon land

The right of receiving air, light, or heat from or over, or discharging the same upon or over land

The right of receiving water from or discharging the same upon land

The right of flooding land

The right of having water flow without diminution or disturbance of any kind

The right of using a wall as a party wall

The right of receiving more than natural support from adjacent land or things affixed thereto

The right of having the whole of a division fence maintained by a coterminous owner

The right of having public conveyances stopped or of stopping the same on land

The right of a seat in church

The right of burial

47-05-01.1. Solar easement - Creation

Any easement obtained for the purpose of exposure of a solar energy device to the direct rays of the sun shall be created in writing and shall be subject to the same conveyancing and instrument recording requirements as other easements. The term "solar energy device" means the device, mechanism, or apparatus designed to receive the direct rays of the sun and convert those rays into heat, electrical, or other form of energy for the purpose of providing heating, cooling, or electrical power

47-05-01.2. Solar easement - Contents

Any instrument creating a solar easement shall include, but shall not be limited to, all of the following: The vertical and horizontal angles, expressed in degrees, at which the solar easement extends over the real property subject to the solar easement

Any terms, conditions, or both under which the solar easement is granted or will be terminated

Any provisions for compensation of the owner of the property benefiting from the solar easement in the event of interference with the enjoyment of the solar easement or compensation of the owner of the property subject to the solar easement for maintaining the solar easement

47-05-02. Servitudes not attached to land

The following land burdens or servitudes upon land may be granted and held, though not attached to land: The right to pasture, and of fishing

The right of a seat in church

The right of burial

The right of taking rents and tolls

The right of way

The right of taking water, wood, minerals, or other things

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A historic easement granted with respect to a state historic site and buildings and structures thereon, or property listed in the national register of historic places, in accordance with the provisions of section 55-10-08

47-05-02.1. Requirements of easements, servitudes, or nonappurtenant restrictions on the use of real property

Real property easements, servitudes, or any nonappurtenant restrictions on the use of real property, which become binding after July 1, 1977, shall be subject to the requirements of this section. These requirements are deemed a part of any agreement for such interests in real property whether or not printed in a document of agreement

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The area of land covered by the easement, servitude, or nonappurtenant restriction on the use of real property shall be properly described and shall set out the area of land covered by the interest in real property

The duration of the easement, servitude, or nonappurtenant restriction on the use of real property must be specifically set out, and in no case may the duration of any interest in real property regulated by this section exceed ninety-nine years. The duration of an easement for a waterfowl production area acquired by the federal government, and consented to by the governor or the appropriate state agency after July 1, 1985, may not exceed fifty years. A waterfowl production area easement that exceeds fifty years or which purports to be perpetual may be extended by negotiation between the owner of the easement and the owner of the servient tenement. A waterfowl production area easement that exceeds fifty years or which purports to be permanent and is not extended by negotiation is void. The duration of a wetlands reserve program easement acquired by the federal government pursuant to the Food, Agriculture, Conservation, and Trade Act of 1990 after July 1, 1991, may not exceed thirty years

3. No increase in the area of real property subject to the easement, servitude, or nonappurtenant restriction shall be made except by negotiation between the owner of the easement, servitude, or nonappurtenant restriction and the owner of the servient tenement

47-05-03. Dominant tenement defined

A dominant tenement means the land to which an easement is attached

47-05-04. Servient tenement defined

A servient tenement means the land upon which a burden or servitude has been placed

47-05-05. Servitude - Creation

A servitude can be created only by one who has a vested estate in the servient tenement

47-05-06. Holding of servitude

A servitude thereon cannot be held by the owner of the servient tenement

47-05-07. Servitude - Extent

The extent of a servitude is determined by the terms of the grant or the nature of the enjoyment by which it was acquired

47-05-08. Partition of dominant tenement - Burden apportioned - Limitations

In case of partition of the dominant tenement, the burden must be apportioned according to the division of the dominant tenement, but not in such a way as to increase the burden upon the servient tenement

Page No. 2 47-05-09. Right of future owner in easements

The owner of a future estate in a dominant tenement may use easements attached thereto for the purpose of viewing waste, demanding rent, or removing an obstruction to the enjoyment of such easement, although such tenement is occupied by a tenant

47-05-10. Enforcement of easement - Right of action

The owner of any estate in a dominant tenement, or the occupant of such tenement, may maintain an action for the enforcement of an easement attached thereto

47-05-11. Public servitude - Effect on owner of fee - Action for possession

The owner in fee of a servient tenement may maintain an action for the possession of the land against anyone unlawfully possessed thereof, though a servitude exists thereon in favor of the public

47-05-12. Extinguishment of servitude - Methods

A servitude is extinguished: 1

By vesting of the right to the servitude and the right to the servient tenement in the same person; By the destruction of the servient tenement; By the performance of any act upon either tenement by the owner of the servitude or with the owner's assent if it is incompatible with its nature or exercise; or 4. When the servitude was acquired by enjoyment, by disuse thereof by the owner of the 2

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servitude for the period prescribed for acquiring title by prescription

47-05-13. Restrictions on easements for forest purposes

Notwithstanding any other provision of law, a person may not create, convey, or record any easement, servitude, or nonappurtenant restriction on the use of real property within thirty-three feet [10.06 meters] of the centerline of any section line if the purpose of that easement, servitude, or restriction is to retain or protect forests

47-05-14. Wind easement - Definition

Redesignated as section 17-04-02 under S.L. 2007, ch. 204, ยง 5

47-05-15. Wind easements - Creation - Term - Development required

Redesignated as section 17-04-03 under S.L. 2007, ch. 204, ยง 5

47-05-16. Severance of wind energy rights limited

Redesignated as section 17-04-04 under S.L. 2007, ch. 204, ยง 5

47-05-17. Severance of the right of access for hunting access prohibited

The right of access to land to shoot, shoot at, pursue, take, attempt to take, or kill any game animals or game birds; search for or attempt to locate or flush any game animals and game birds; lure, call, or attempt to attract game animals or game birds; hide for the purpose of taking or attempting to take game animals or game birds; and walk, crawl, or advance toward wildlife while possessing implements or equipment useful in the taking of game animals or game birds may not be severed from the surface estate. This section does not apply to deeds, instruments, or interests in property recorded before August 1, 2007

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