SHEPARD, Justice.

This is an appeal from a judgment ordering partial abatement of a spite fence erected between two adjoining motels in Caldwell, Idaho. This action is evidently an outgrowth of a continuing dispute between the parties resulting from the 1966 sale of a motel. See: King v. H. J. McNeel, Inc., 94 Idaho 444, 489 P.2d 1324 (1971).

In 1966 Robert Bushnell sold a motel to defendants-appellants King. Bushnell then built another motel, the Desert Inn, on property immediately adjoining that sold to the Kings.

The Kings thereafter brought an action against Bushnell (H. J. McNeel, Inc.) based on alleged misrepresentations by Bushnell in the 1966 sale of the motel property. See: King v. H. J. McNeel, Inc., supra. In 1968 the Kings built a large structure, variously described as a fence or sign, some 16 inches from the boundary line between the King and Bushnell properties. The structure is 85 ft. in length and 18 ft. in height. It is raised 2 ft. off the ground and is 2 ft. from the Desert Inn building. It parallels the entire northwest side of the Desert Inn building, obscures approximately 80% of the Desert Inn building and restricts the passage of light and air to its rooms.

Bushnell brought the instant action seeking damages and injunctive relief compelling the removal of the structure. Following trial to the court, the district court found that the structure was erected out of spite and that it was erected in violation of a municipal ordinance. The trial court *368ordered the structure reduced to a maximum height of 6 ft.

The Kings appeal from the judgment entered against them and claim that the trial court erred in many of its findings of fact and its applications of law. The Kings assert the trial court erred in finding that the “sign” was in fact a fence; that the structure had little or no value for advertising purposes; that the structure cuts out light and air from the rooms of the Desert Inn Motel; that the structure has caused damage by way of diminution of the value of the Desert Inn Motel property; that the erection of the structure was motivated by ill-feeling and spite; that the structure was erected to establish a dividing line; and that the trial court erred in failing to find the structure was necessary to distinguish between the two adjoining motels.

We have examined the record at length and conclude that the findings of the trial court are supported by substantial although conflicting evidence. The trial court had before it both still and moving pictures of the various buildings. The record contains testimony that the structure is the largest “sign” then existing in Oregon, Northern Nevada and Idaho. An advertising expert testified that the structure, because of its location and type, had no value for advertising and that its cost, i. e., $6,300, would not be justified for advertising purposes. Findings of fact will not be set aside on appeal unless they are clearly erroneous, and when they are supported by substantial though conflicting evidence they will not be disturbed on appeal. Hisaw v. Bishop, 95 Idaho 145, 504 P.2d 818 (1972) ; I.R.C.P. 52(a).

The absence of findings of fact may be disregarded by an appellate court if the record is so clear that they are not necessary for a complete understanding of the issues. Call v. Marler, 89 Idaho 120, 403 P.2d 588 (1965).

The pivotal and dispositive issue in this matter is whether the trial court erred in requiring partial abatement of the structure on the ground that it was a spite fence. Under the so-called English rule, followed by most 19th century American courts, the erection and maintenance of a spite fence was not an actionable wrong. These older cases were founded on the premise that a property owner has an absolute right to use his property in any manner he desires. See: 5 Powell on Real Property, ¶696, p. 276 (1949 ed. rev’d 1968); Letts v. Kessler, 54 Ohio St. 73, 42 N.E. 765 (1896).

Under the modern American rule, however, one may not erect a structure for the sole purpose of annoying his neighbor. Many courts hold that a spite fence which serves no useful purpose may give rise to an action for both injunctive relief and damages. See: 5 Powell, supra, ¶696, p. 277; IA Thompson on Real Property, § 239 (1964 ed.). Many courts following the above rule further characterize a spite fence as a nuisance. See: Hornsby v. Smith; 191 Ga. 491, 13 S.E.2d 20 (1941); Barger v. Barringer, 151 N.C. 433, 66 S.E. 439 (1909); Annotation 133 A.L.R. 691.

One of the first cases rejecting the older English view and announcing the new American rule on spite fences is Burke v. Smith, 69 Mich. 380, 37 N.W. 838 (1888). Subsequently, many American jurisdictions have adopted and followed Burke so that it is clearly the prevailing modern view. See: Powell, supra, ¶696 at p. 279; Flaherty v. Moran, 81 Mich. 52, 45 N.W. 381 (1890); Barger v. Barringer, supra; Norton v. Randolph, 176 Ala. 381, 58 So. 283 (1912); Bush v. Mockett, 95 Neb. 552, 145 N.W. 1001 (1914); Hibbard v. Halliday, 58 Okla. 244, 158 P. 1158 (1916); Parker v. Harvey, 164 So. 507 (La.App.1935); Hornsby v. Smith, supra; Brittingham v. Robertson, 280 A.2d 741 (Del.Ch.1971). Also see the opinion of Mr. Justice Holmes in Rideout v. Knox, 148 Mass. 368, 19 N.E. 390 (1889).

In Burke a property owner built two 11 ft. fences blocking the light and air to his neighbors’ windows. The fences served no useful purpose to their owner and were erected solely because of his malice *369toward his neighbor. Justice Morse applied the maxim sic uiere tuo ut alienum non laedas, and concluded:

“But it must be remembered that no man has a legal right to make a malicious use of his property, not for any benefit or advantage to himself, but for the avowed purpose of damaging his neighbor. To hold otherwise would make the law a convenient engine, in cases like the present, to injure and destroy the peace and comfort, and to damage the property, of one’s neighbor for no other than a wicked purpose, which in itself is, or ought to be, unlawful. The right to do this cannot, in an enlightened country, exist, either in the use of property, or in any way or manner. There is no doubt in my mind that these uncouth screens or ‘obscurers’ as they are named in the record, are a nuisance, and were erected without right, and for a malicious purpose. What right has the defendant, in the light of the just and beneficent principles of equity, to shut out God’s free air and sunlight from the windows of his neighbor, not for any benefit or advantage to himself, or profit to his land, but simply to gratify his own wicked malice against his neighbor? None whatever. The wanton infliction of damage can never be a right. It is a wrong, and a violation of right, and is not without remedy. The right to breath the air, and to enjoy the sunshine, is a natural one; and no man can pollute the atmosphere, or shut out the light of heaven, for no better reason than that the situation of his property is such that he is given the opportunity of so doing, and wishes to gratify his spite and malice towards his neighbor.” 37 N.W. at 842.

We agree both with the philosophy expressed in the Burke opinion and with that of other jurisdictions following what we feel is the better-reasoned approach. We hold that no property owner has the right to erect and maintain an otherwise useless structure for the sole purpose of injuring his neighbor. The trial court found on the basis of substantial evidence that the structure served no useful purpose to its owners and was erected because of the Kings’ ill-will and emnity toward their neighboring competitor. We therefore hold that the trial court did not err in partially abating and enjoining the “sign” structure as a spite fence.

Our decision today is not entirely in harmony with White v. Bernhart, 41 Idaho 665, 241 P. 367 (1925). White held that an owner could not be enjoined from maintaining a dilapidated house as a nuisance, even though the house diminished the value of neighboring property. White is clearly distinguishable from the case at bar. Rather than a fence, it involved a dwelling house which was not maliciously erected. The rule announced herein is applicable only to structures which serve no useful purpose and are erected for the sole purpose of injuring adjoining property owners. There is dictum in White which suggests that a structure may only be enjoined when it is a nuisance per se. Such language is inconsistent with our decision today and it is hereby disapproved.

Appellants King assign error to findings and conclusions of the trial court relating to the applicability and interpretation of Caldwell Zoning Ordinance No. 1085. Our disposition of this appeal makes it unnecessary to consider those issues.

The judgment of the trial court is affirmed. Costs to respondent.

DONALDSON, C. J„ McQUADE and McFADDEN, JJ., and HAGAN, District Judge, concur.

SHIRLEY S. ABRAHAMSON, J.

This appeal from a judgment of the circuit court for Waukesha county, Max Raskin, circuit judge, was certified to this court by the court of appeals, sec. (Rule) 809.61, Stats. 1979-80, as presenting an issue of first impression, namely, whether an owner of a solar-heated residence states a claim upon which relief can be granted when he asserts that his neighbor’s proposed construction of a residence (which conforms to existing deed restrictions and local ordinances) interferes with his access to an unobstructed path for sunlight across the neighbor’s property. This case thus involves a conflict between one landowner (Glenn Prah, the plaintiff) interested in unobstructed access to sunlight across adjoining property as a natural source of energy and an adjoining landowner (Richard D. Mar-*225etti, the defendant) interested in the development of his land.

The circuit court concluded that the plaintiff presented no claim upon which relief could be granted and granted summary judgment for the defendant. We reverse the judgment of the circuit court and remand the cause to the circuit court for further proceedings.

I.

According to the complaint, the plaintiff is the owner of a residence which was constructed during the years 1978-1979. The complaint alleges that the residence has a solar system which includes collectors on the roof to supply energy for heat and hot water and that after the plaintiff built his solar-heated house, the defendant purchased the lot adjacent to and immediately to the south of the plaintiff’s lot and commenced planning construction of a home. The complaint further states that when the plaintiff learned of defendant’s plans to build the house he advised the defendant that if the house were built at the proposed location, defendant’s house would substantially and adversely affect the integrity of plaintiff’s solar system and could cause plaintiff other damage. Nevertheless, the defendant began construction. The complaint further alleges that the plaintiff is entitled to “unrestricted use of the sun and its solar power” and demands judgment for injunctive relief and damages.1

*226After filing his complaint, the plaintiff moved for a temporary injunction to restrain and enjoin construction by the defendant. In ruling on that motion the circuit court heard testimony, received affidavits and viewed the site.

The record made on the motion reveals the following additional facts: Plaintiff’s home was the first residence built in the subdivision, and although plaintiff did not build his house in the center of the lot it was built in accordance with applicable restrictions. Plaintiff advised defendant that if the defendant’s home were built at the proposed site it would cause a shadowing effect on the solar collectors which would reduce the efficiency of the system and possibly damage the system. To avoid these adverse effects, plaintiff requested defendant to locate his home an additional several feet away from the plaintiff’s lot line, the exact number being disputed. Plaintiff and defendant failed to reach an agreement on the location of defendant’s home before defendant started construction. The Architectural Control Committee of the subdivision and the Planning Commission of the City of Muskego approved the defendant’s plans for his home, including its location on the lot. After such approval, the defendant apparently changed the grade of the property without prior notice to the Architectural Control Committee.2 The problem with defendant’s proposed *227construction, as far as the plaintiff’s interests are concerned, arises from a combination of the grade and the distance of defendant’s home from the defendant’s lot line.

The circuit court denied plaintiff’s motion for injunc-tive relief, declared it would entertain a motion for summary judgment and thereafter entered judgment in favor of the defendant.

1 — 1 HH

The defendant argues that because the circuit court conducted a hearing and considered all material issues of fact, we should consider this case an appeal from a judgment after trial, not as an appeal from a summary judgment. We do not accept the defendant’s characterization of the circuit court’s proceedings.

The circuit court held a hearing to consider plaintiff’s motion for a temporary injunction. A primary consideration on such motion is whether the moving party has a reasonable probability of ultimate success; the ruling on the motion does not resolve the issue of whether the moving party will in fact ultimately succeed in the lawsuit. Werner v. Grootemaat, 80 Wis. 2d 513, 520, 259 N.W.2d 310 (1977). The circuit court denied the motion for a temporary injunction, concluding that there was no reasonable probability that the plaintiff would ultimately succeed and that the plaintiff had not stated a claim upon which relief could be granted. The circuit court ended its memorandum decision on the motion for a temporary injunction with the following comment:

*228“In as much as the court is of the opinion that the plaintiff has failed to state a claim upon which equitable relief can be granted, and the parties having joined issue, the court will entertain a motion by the defendant for summary judgment.”

This statement clearly indicates the intention and expectation of the circuit court to deal with this case on a motion for summary judgment. We therefore consider this as an appeal from a judgment entered on a motion for summary judgment.

In deciding a motion for summary judgment the initial question is the same as that on a sec. 802.06(2), Stats. 1979-80, motion to dismiss the complaint for failure to state a claim upon which relief can be granted, namely, whether the complaint states a claim upon which relief can be granted. Kanack v. Kremski, 96 Wis. 2d 426, 435, 291 N.W.2d 864 (1980) (Abrahamson, J., concurring) . If the complaint states a claim and the pleadings show the existence of factual issues, the court then examines the affidavits and other proof and determines whether there are disputed material facts that entitle the non-moving party to a trial. On summary judgment the court does not decide those issues of fact; it merely decides whether genuine issues of fact exist. Coleman v. Outboard Marine Corp., 92 Wis. 2d 565, 570-71, 285 N.W.2d 631 (1979).

In this case there is some ambiguity whether the judgment was based on the complaint or on factual matters outside the pleadings which were presented to the circuit court in connection with the motion for a temporary injunction. Consequently, we shall first test the sufficiency of the complaint and then determine whether the matters outside the pleadings present disputed material facts sufficient to justify a trial.

*229III.

In testing the sufficiency of the complaint the facts pleaded by the plaintiff, and all reasonable inferences therefrom, are accepted as true. Hartridge v. State Farm Mutual Auto Ins. Co., 86 Wis. 2d 1, 4-5, 271 N.W.2d 598 (1978). The pleadings are to be liberally construed with a view to substantial justice to the parties, sec. 802.02 (6), Stats. 1979-80, and the complaint should be dismissed as legally insufficient only if “it is quite clear that under no circumstances can the plaintiff recover.” Clausen & Lowe, The New Wisconsin Rules of Civil Procedure, Chapters 801-803, 59 Marq. L. Rev 1, 54 (1976), quoted with approval in Morgan v. Pennsylvania General Ins. Co., 87 Wis. 2d 723, 731, 275 N.W.2d 660 (1979).

The plaintiff presents three legal theories to support his claim that the defendant’s continued construction of a home justifies granting him relief: (1) the construction constitutes a common law private nuisance; (2) the construction is prohibited by sec. 844.01, Stats. 1979-80 ;3 *230and (3) the construction interferes with the solar easement plaintiff acquired under the doctrine of prior appropriation.4

As to the claim of private nuisance the circuit court concluded that the law of private nuisance requires the court to make “a comparative evaluation of the conflicting interests and to weigh the gravity of the harm to the plaintiff against the utility of the defendant’s conduct.” The circuit court concluded: “A comparative evaluation of the conflicting interests, keeping in mind the omissions and commissions of both Prah and Maretti, indicates that defendant’s conduct does not cause the gravity of the harm which the plaintiff himself may well have avoided by proper planning.” The circuit court also concluded that sec. 844.01 does not apply to a home constructed in accordance with deed and municipal ordinance requirements. Further, the circuit court rejected the prior appropriation doctrine as “an intrusion of judicial egoism over legislative passivity.”

We consider first whether the complaint states a claim for relief based on common law private nuisance. This state has long recognized that an owner of land does not have an absolute or unlimited right to use the land in a way which injures the rights of others. The rights of neighboring landowners are relative; the uses by one must not unreasonably impair the uses or enjoyment of the other.5 VI-A American Law of Property sec. 28.22, *231pp. 64-65 (1954). When one landowner’s use of his or her property unreasonably interferes with another’s enjoyment of his or her property, that use is said to be a private nuisance. Hoene v. Milwaukee, 17 Wis. 2d 209, 214, 116 N.W.2d 112 (1962); Metzger v. Hochrein, 107 Wis. 267, 269, 83 N.W. 308 (1900). See also Prosser, Law of Torts sec. 89, p. 591 (2d ed. 1971).

The private nuisance doctrine has traditionally been employed in this state to balance the conflicting rights of landowners,6 and this court has recently adopted the analysis of private nuisance set forth in the Restatement (Second) of Torts. CEW Mgmt. Corp. v. First Federal Savings & Loan Association, 88 Wis. 2d 631, 633, 277 N.W.2d 766 (1979). The Restatement defines private nuisance as “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Restate*232ment (Second) of Torts Sec. 821D (1977). The phrase “interest in the private use and enjoyment of land” as used in sec. 821D is broadly defined to include any disturbance of the enjoyment of property. The comment in the Restatement describes the landowner’s interest protected by private nuisance law as follows:

“The phrase ‘interest in the use and enjoyment of land’ is used in this Restatement in a broad sense. It comprehends not only the interests that a person may have in the actual present use of land for residential, agricultural, commercial, industrial and other purposes, but also his interests in having the present use value of the land unimpaired by changes in its physical condition. Thus the destruction of trees on vacant land is as much an invasion of the owner’s interest in its use and enjoyment as is the destruction of crops or flowers that he is growing on the land for his present use. ‘Interest in use and enjoyment’ also comprehends the pleasure, comfort and enjoyment that a person normally derives from the occupancy of land. Freedom from discomfort and annoyance while using land is often as important to a person as freedom from physical interruption with his use or freedom from detrimental change in the physical condition of the land itself.” Restatement (Second) of Torts, Sec. 821D, Comment b, p. 101 (1977).

Although the defendant’s obstruction of the plaintiff’s access to sunlight appears to fall within the Restatement’s broad concept of a private nuisance as a nontres-passory invasion of another’s interest in the private use and enjoyment of land, the defendant asserts that he has a right to develop his property in compliance with statutes, ordinances and private covenants without regard to the effect of such development upon the plaintiff’s access to sunlight. In essence, the defendant is asking this court to hold that the private nuisance doctrine is not applicable in the instant case and that his right to develop his land is a right which is per se superior to his neighbor’s interest in access to sunlight. *233This position is expressed in the maxim “cujus est solum, ejus est usque ad coelum et ad infernos,” that is, the owner of land owns up to the sky and down to the center of the earth. The rights of the surface owner are, however, not unlimited. U.S. v. Causby, 328 U.S. 256, 260-1 (1946). See also 114.03, Stats. 1979-80.

The defendant is not completely correct in asserting that the common law did not protect a landowner’s access to sunlight across adjoining property. At English common law a landowner could acquire a right to receive sunlight across adjoining land by both express agreement and under the judge-made doctrine of “ancient lights.” Under the doctrine of ancient lights if the landowner had received sunlight across adjoining property for a specified period of time,7 the landowner was entitled to continue to receive unobstructed access to sunlight across the adjoining property. Under the doctrine the landowner acquired a negative prescriptive easement and could prevent the adjoining landowner from obstructing access to light.8

Although American courts have not been as receptive to protecting a landowner’s access to sunlight as the English courts, American courts have afforded some protection to a landowner’s interest in access to sunlight. American courts honor express easements to sunlight. American courts initially enforced the English common law doctrine of ancient lights, but later every state which considered the doctrine repudiated it as incon*234sistent with the needs of a developing country. Indeed, for just that reason this court concluded that an easement to light and air over adjacent property could not be created or acquired by prescription and has been unwilling to recognize such an easement by implication. Depner v. United States National Bank, 202 Wis. 405, 408, 232 N.W. 851 (1930) ; Miller v. Hoeschler, 126 Wis. 263, 268-69, 105 N.W. 790 (1905).

Many jurisdictions in this country have protected a landowner from malicious obstruction of access to light (the spite fence cases) under the common law private nuisance doctrine.9 If an activity is motivated by malice it lacks utility and the harm it causes others outweighs any social values. VI-A Law of Property sec. 28.28, p. 79 (1954). This court was reluctant to protect a landowner’s interest in sunlight even against a spite fence, only to be overruled by the legislature. Shortly after this court upheld a landowner’s right to erect a useless and unsightly sixteen-foot spite fence four feet from his neighbor’s windows, Metzger v. Hochrain, 107 N.W. 267, 83 N.W. 308 (1900), the legislature enacted a law specifically defining a spite fence as an actionable private nuisance.10 Thus a landowner’s interest in sunlight has been pro*235tected in this country by common law private nuisance law at least in the narrow context of the modern American rule invalidating spite fences. See, e.g., Sundowner, Inc. v. King, 95 Idaho 367, 509 P.2d 785 (1973) ; Restatement (Second) of Torts, sec. 829 (1977).

This court’s reluctance in the nineteenth and early part of the twentieth century to provide broader protection for a landowner’s access to sunlight was premised on three policy considerations. First, the right of landowners to use their property as they wished, as long as they did not cause physical damage to a neighbor, was jealously guarded. Metzger v. Hochrein, 107 Wis. 267, 272, 83 N.W. 308 (1900).

Second, sunlight was valued only for aesthetic enjoyment or as illumination. Since artificial light could be used for illumination, loss of sunlight was at most a personal annoyance which was given little, if any, weight by society.

Third, society had a significant interest in not restricting or impeding land development. Dillman v. Hoffman, 38 Wis. 559, 574 (1875). This court repeatedly emphasized that in the growth period of the nineteenth and early twentieth centuries change is to be expected and is essential to property and that recognition of a right to sunlight would hinder property development. The court expressed this concept as follows:

“As the city grows, large grounds appurtenant to residences must be cut up to supply more residences. . . . The cistern, the outhouse, the cesspool, and the private drain must disappear in deference to the public waterworks and sewer; the terrace and the garden, to the need for more complete occupancy. . . . Strict limitation [on the recognition of easements of light and air over adjacent premises is] in accord with the popular conception upon which real estate has been and is daily being conveyed in Wisconsin and to be essential to easy and rapid development at least of our municipalities.” Mil*236ler v. Hoeschler, supra, 126 Wis. at 268, 270; quoted with approval in Depner, supra, 202 Wis. at 409.

Considering these three policies, this court concluded that in the absence of an express agreement granting access to sunlight, a landowner’s obstruction of another’s access to sunlight was not actionable. Miller v. Hoeschler, supra, 126 Wis. at 271; Depner v. United States National Bank, supra, 202 Wis. at 410. These three policies are no longer fully accepted or applicable. They reflect factual circumstances and social priorities that are now obsolete.

First, society has increasingly regulated the use of land by the landowner for the general welfare. Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) ; Just v. Marinette, 56 Wis. 2d 7, 201 N.W.2d 761 (1972).

Second, access to sunlight has taken on a new significance in recent years. In this case the plaintiff seeks to protect access to sunlight, not for aesthetic reasons or as a source of illumination but as a source of energy. Access to sunlight as an energy source is of significance both to the landowner who invests in solar collectors and to a society which has an interest in developing alternative sources of energy.11

*237Third, the policy of favoring unhindered private development in an expanding economy is no longer in harmony with the realities of our society. State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974). The need for easy and rapid development is not as great today as it once was, while our perception of the value of sunlight as a source of energy has increased significantly.

Courts should not implement obsolete policies that have lost their vigor over the course of the years. The law of private nuisance is better suited to resolve landowners’ disputes about property development in the 1980’s than is a rigid rule which does not recognize a landowner’s interest in access to sunlight. As we said in Ballstadt v. Pagel, 202 Wis. 484, 489, 232 N.W. 862 (1930), “What is regarded in law as constituting a nuisance in modern times would no doubt have been tolerated without question in former times.” We read State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974), as an endorsement of the application of common law nuisance to situations involving the conflicting interests of landowners and as rejecting per se exclusions to the nuisance law reasonable use doctrine.

In Deetz the court abandoned the rigid common law common enemy rule with respect to surface water and adopted the private nuisance reasonable use rule, namely that the landowner is subject to liability if his or her interference with the flow of surface waters unreasonably invades a neighbor’s interest in the use and enjoyment of land. Restatement (Second) of Torts, sec. 822, 826, 829 (1977). This court concluded that the common enemy rule which served society “well in the days of burgeoning national expansion of the mid-nineteenth and *238early-twentieth centuries” should be abandoned because it was no longer “in harmony with the realities of our society.” Deetz, supra, 66 Wis. 2d at 14-15. We recognized in Deetz that common law rules adapt to changing social values and conditions.12

Yet the defendant would have us ignore the flexible private nuisance law as a means of resolving the dispute between the landowners in this case and would have us adopt an approach, already abandoned in Deetz, of favoring the unrestricted development of land and of applying a rigid and inflexible rule protecting his right to build on his land and disregarding any interest of the plaintiff in the use and enjoyment of his land. This we refuse to do.13

*239Private nuisance law, the law traditionally used to adjudicate conflicts between private landowners, has the flexibility to protect both a landowner’s right of access to sunlight and another landowner’s right to develop land. Private nuisance law is better suited to regulate access to sunlight in modern society and is more in harmony with legislative policy and the prior decisions of this court than is an inflexible doctrine of non-recognition of any interest in access to sunlight across adjoining land.14

*240We therefore hold that private nuisance law, that is, the reasonable use doctrine as set forth in the Restatement, is applicable to the instant case. Recognition of a nuisance claim for unreasonable obstruction of access to sunlight will not prevent land development or unduly hinder the use of adjoining land. It will promote the reasonable use and enjoyment of land in a manner suitable to the 1980’s. That obstruction of access to light might be found to constitute a nuisance in certain circumstances does not mean that it will be or must be found to constitute a nuisance under all circumstances. The result in each case depends on whether the conduct complained of is unreasonable.

Accordingly we hold that the plaintiff in this case has stated a claim under which relief can be granted. Nonetheless we do not determine whether the plaintiff in this case is entitled to relief. In order to be entitled to relief the plaintiff must prove the elements required to establish actionable nuisance, and the conduct of the defendant herein must be judged by the reasonable use doctrine.

IV.

The defendant asserts that even if we hold that the private nuisance doctrine applies to obstruction of access to sunlight across adjoining land, the circuit court’s granting of summary judgment should be affirmed.

Although the memorandum decision of the circuit court in the instant case is unclear, it appears that the circuit court recognized that the common law private nuisance doctrine was applicable but concluded that defendant’s conduct was not unreasonable.15 The circuit court ap*241parently attempted to balance the utility of the defendant’s conduct with the gravity of the harm. Sec. 826, Restatement (Second) of Torts (1977).16 The defendant urges us to accept the circuit court’s balance as adequate. We decline to do so.

*242The circuit court concluded that because the defendant’s proposed house was in conformity with zoning regulations, building codes and deed restrictions, the defendant’s use of the land was reasonable. This court has concluded that a landowner’s compliance with zoning laws does not automatically bar a nuisance claim. Compliance with the law “is not the controlling factor, though it is, of course, entitled to some weight.” Bie v. Ingersoll, 27 Wis. 2d 490, 495, 135 N.W.2d 250 (1965). The circuit court also concluded that the plaintiff could have avoided any harm by locating his own house in a better place. Again, plaintiff’s ability to avoid the harm is a relevant but not a conclusive factor. See secs. 826, 827, 828, Restatement (Second) of Torts (1977).

Furthermore, our examination of the record leads us to conclude that the record does not furnish an adequate basis for the circuit court to apply the proper legal principles on summary judgment. The application of the reasonable use standard in nuisance cases normally requires a full exposition of all underlying facts and circumstances. Too little is known in this case of such matters as the extent of the harm to the plaintiff, the suitability of solar heat in that neighborhood, the availability of remedies to the plaintiff, and the costs to the defendant of avoiding the harm.17 Summary judgment is not an appropriate procedural vehicle in this case when the circuit court must weigh evidence which has not been presented at trial. 6 (Pt. 2) Moore’s Federal Practice, 56.15 [7], pp. 56-638 (1982) ; 10 Wright and Miller, Federal Practice and Procedure — Civil, secs. 2729, 2731 (1973).

Because the plaintiff has stated a claim of common law private nuisance upon which relief can be granted, the judgment of the circuit court must be reversed. We need not, and do not, reach the question of whether the complaint states a claim under sec. 844.01, Stats. 1979-*24380, or under the doctrine of prior appropriation. Attoe v. Madison Professional Policemen’s Assoc., 79 Wis. 2d 199, 205, 255 N.W.2d 489 (1977).

For the reasons set forth, we reverse the judgment of the circuit court dismissing the complaint and remand the matter to circuit court for further proceedings not inconsistent with this opinion.

By the Court. — The judgment of the circuit court is reversed and the cause remanded for proceedings not inconsistent with this opinion.

Ceci, J., took no part.

WILLIAM G. CALLOW, J.

(dissenting). The majority has adopted the Restatement’s reasonable use doctrine to grant an owner of a solar heated home a cause of action against his neighbor who, in acting entirely within the applicable ordinances and statutes, seeks to design and build his home in such a location that it may, at various times during the day, shade the plaintiff’s solar collector, thereby impeding the efficiency of his heating system1 during several months of the year. Because I believe the facts of this case clearly reveal that a cause of action for private nuisance will not lie, I dissent.

The majority arrives at its conclusion that the common law private nuisance doctrine is applicable by analogizing this situation with the spite fence cases which protect a landowner from malicious obstruction of access to light. Supra, at 233-235. See Piccirilli v. Groccia, 114 R.I. 36, 39, 327 A.2d 834, 837, (1974) (plaintiff must prove allegedly objectionable fence was erected solely for the avowed purpose of damaging the abutting neighbor and not for the advantage of the person who constructed the fence) ; Schorck v. Epperson, 74 Wyo. 286, 287-88, 287 P.2d 467 (1955) (doctrine of private nuisance founded *244on maxim that no one should have a legal right to make a malicious use of his property for no benefit to himself but merely to injure another). Accord Daniel v. Birmingham Dental Mfg. Co., 207 Ala. 659, 661, 93 S. 652 (1922); Green v. Schick, 194 Okla. 491, 492, 153 P.2d 821 (1944). See also Comment, Obstruction of Sunlight as a Private Nuisance, 65 Calif. L. Rev. 94, 99-102 (1977) (“the ironclad rule has been that the obstruction of a neighbor’s light and air is not a nuisance if it serves any useful purpose”). Id. at 101 (emphasis in original). Courts have likewise refused to limit interference with television reception and other broadcast signals. The People ex rel. Hoogasian v. Sears, Roebuck and Co., 52 Ill. 2d 301, 305, 287 N.E.2d 677 (1972), cert. denied, 409 U.S. 1001. Clearly, the spite fence cases, as their name implies, require malice which is not claimed in this case.

The majority then concludes that this court’s past reluctance to extend protection to a landowner’s access to sunlight beyond the spite fence cases is based on obsolete policies which have lost their vigor over the course of the years. Supra, at 237. The three obsolete policies cited by the majority are: (1) Right of landowners to use their property as they desire as long as no physical damage is done to a neighbor; (2) In the past, sunlight was valued only for aesthetic value, not a source of energy; and (3) Society has a significant interest in not impeding land development. Supra, at 235. See Comment, Obstruction of Sunlight as a Private Nuisance, supra at 105-12. The majority has failed to convince me that these policies are obsolete.

It is a fundamental principle of law that a “landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.” United States v. Causby, 328 U.S. 256, 264 (1946) ; In Re Honolulu Rapid Transit Co., 54 Hawaii 402, 408, 507 P.2d 755 (1973) ; Granberry v. Jones, et al., 188 Tenn. 51, 54-55, 216 S.W.2d 721 (1949). As stated in *245the frequently cited and followed case of Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So. 2d 357 (Fla. Dist. Ct. App. 1959), cert. denied, 117 So. 2d 842 (Fla. 1960) :

“There being, then, no legal right to the free flow of light and air from the adjoining land, it is universally heid that where a structure serves a useful and beneficial purpose, it does not give rise to a cause of action, either for damages or for an injunction under the maxim sic utere tuo ut alienum non laedas, even though it causes injury to another by cutting off the light and air and interfering with the view that would otherwise be available over adjoining land in its natural state, regardless of the fact that the structure may have been erected partly for spite.” Id. at 359 (emphasis in original).

See Venuto v. Owens-Corning Fiberglas Corp., 22 Cal. App. 3d 116, 127, 99 Cal. Rptr. 350, 357 (1971). I firmly believe that a landowner’s right to use his property within the limits of ordinances, statutes, and restrictions of record where such use is necessary to serve his legitimate needs is a fundamental precept of a free society which this court should strive to uphold.

As one commentator has suggested:

“It is fashionable to dismiss such values as deriving from a bygone era in which people valued development as a ‘goal in itself,’ but current market prices for real estate, and more particularly the premiums paid for land whose zoning permits intensive use, suggest that people still place very high values on such rights.”

Williams, Solar Access and Property Rights: A Maverick Analysis, 11 Conn. L. Rev. 430, 443 (1979) (footnote omitted). Cf. Goble, Solar Access and Property Rights: Reply to a “Maverick” Analysis, 12 Conn. L. Rev. 270 (1980).

The majority cites two zoning cases, Village of Euclid v. Ambler Realty Company, 272 U.S. 365 (1926), and Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 *246(1972), to support the conclusion that society has increasingly regulated private land use in the name of public welfare. Supra, at 236. The cases involving the use of police power and eminent domain are clearly distinguishable from the present situation as they relate to interference with a private right solely for the public health, safety, morals, or welfare. In the instant case, we are dealing with an action which seeks to restrict the defendant’s private right to use his property, notwithstanding a complete lack of notice of restriction to the defendant and the defendant’s compliance with applicable ordinances and statutes. The plaintiff who knew of the potential problem before the defendant acquired the land seeks to impose such use restriction to accommodate his personal, private benefit — a benefit which could have been accommodated by the plaintiff locating his home in a different place on his property or by acquiring the land in question when it was for sale prior to its acquisition by the defendant.

1 know of no cases repudiating policies favoring the right of a landowner to use his property as he lawfully desires or which declare such policies are “no longer fully accepted or applicable” in this context. Supra, at 236.2 The right of a property owner to lawful enjoyment of his property should be vigorously protected, particularly in *247those cases where the adjacent property owner could have insulated himself from the alleged problem by acquiring the land as a defense to the potential problem or by provident use of his own property.

The majority concludes that sunlight has not heretofore been accorded the status of a source of energy, and consequently it has taken on a new significance in recent years. Solar energy for home heating is at this time sparingly used and of questionable economic value because solar collectors are not mass produced, and consequently, they are very costly. Their limited efficiency may explain the lack of production.

Regarding the third policy the majority apparently believes is obsolete (that society has a significant interest in not restricting land development), it cites State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974). I concede the law may be tending to recognize the value of aesthetics over increased volume development and that an individual may not use his land in such a way as to harm the ‘public. The instant case, however, deals with a private benefit. I note that this court in Deetz stated: “The reasonable use rule retains ... a policy of favoring land improvement and development.” Id. at 20. See also id. at 15. Accord Moritz v. Buglewicz, 187 Neb. 819, 194 N.W.2d 215 (1972). I find it significant that community planners are dealing with this country’s continued population growth and building revitalization where “[t]he number of households is expected to reach almost 100 million by the end of the decade; that would be 34 percent higher than the number in 1970.” F. Strom, 1981 Zoning and, Planning Law Handbook, sec. 22.02 [8], 396 (1981). It is clear that community planners are acutely aware of the present housing shortages, particularly among those two groups with limited financial resources, the young and the elderly. Id. While the majority’s policy arguments may be directed to a cause of action for *248public nuisance, we are presented with a private nuisance case which I believe is distinguishable in this regard.3

I would submit that any policy decisions in this area are best left for the legislature. “What is ‘desirable’ or ‘advisable’ or ‘ought to be’ is a question of policy, not a question of fact. What is ‘necessary’ or what is ‘in the best interest’ is not a fact and its determination by the judiciary is an exercise of legislative power when each involves political considerations.” In re City of Beloit, 37 Wis. 2d 637, 644, 155 N.W.2d 633 (1968). See generally Holifield v. Setco Industries, Inc., 42 Wis. 2d 750, 758, 168 N.W.2d 177 (1969) ; Comment, Solar Rights: Guaranteeing a Place in the Sun, 57 Or. L. Rev. 94, 126-27 (1977) (litigation is a slow, costly, and uncertain method of reform). I would concur with these observations of the trial judge: “While temptation lingers for the court to declare by judicial fiat what is right and what should be done, under the facts in this case, such action under our form of constitutional government where the three branches each have their defined jurisdiction and power, would be an intrusion of judicial egoism over legislative passivity.”

*249The legislature has recently acted in this area. Chapter 354, Laws of 1981 (effective May 7, 1982), was enacted to provide the underlying legislation enabling local governments to enact ordinances establishing procedures for guaranteeing access to sunlight. This court’s intrusion into an area where legislative action is being taken is unwarranted, and it may undermine a legislative scheme for orderly development not yet fully operational.

Chapter 354, Laws of 1981, sec. 66.032, provides specific conditions for solar access permits. In part that section provides for impermissible interference with solar collectors within specific limitations:

“66.032 Solar access permits. (1) . . .

“(f) ‘Impermissible interference’ means the blockage of solar energy from a collector surface or proposed collector surface for which a permit has been granted under this section during a collector use period if such blockage is by any structure or vegetation on property, an owner of which was notified under sub. (3)(b). ‘Impermissible interference’ does not include:

“1. Blockage by a narrow protrusion, including but not limited to a pole or wire, which does not substantially interfere with absorption of solar energy by a solar collector.

“2. Blockage by any structure constructed, under construction or for which a building permit has been applied for before the date the last notice is mailed or delivered under sub. (S)(b).

“3. Blockage by any vegetation planted before the date the last notice is mailed or delivered under sub. (3) (b) unless a municipality by ordinance under sub. (2) defines impermissible interference to include such vegetation.” (Emphasis added.)

Sec. 66.032(3) (b) provides for notice:

“ (3) Permit applications.

“(b) An agency shall determine if an application is satisfactorily completed and shall notify the applicant of its determination. If an applicant receives notice that *250an application has been satisfactorily completed, the applicant shall deliver by certified mail or by hand a notice to the owner of any property which the applicant proposes to be restricted by the permit under sub. (7). The applicant shall submit to the agency a copy of a signed receipt for every notice delivered under this paragraph. The agency shall supply the notice form. The information on the form may include, without limitation because of enumeration:

“1. The name and address of the applicant, and the address of the land upon which the solar collector is or will be located.

“2. That an application has been filed by the applicant.

“3. That the permit, if granted, may affect the rights of the notified owner to develop his or her property and to plant vegetation.

“4. The telephone number, address and office hours of the agency.

“5. That any person may request a hearing under sub. (4) within 30 days after receipt of the notice, and the address and procedure for filing the request.” (Emphasis added.)

This legislative scheme would deal with the type of problem presented in the present case and precludes the need for judicial activism in this area.

I examine with interest the definition of nuisance as set out in the Restatement (Second) of Torts and adopted in the majority opinion: “A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Restatement (Second) of Torts sec. 821D (1977) (emphasis added). The majority believes that the defendant’s obstruction of the plaintiff’s access to sunlight falls within the broad definition of “use and enjoyment of land.” Supra, at 230-232. I do not believe the defendant’s “obstruction” of the plaintiff’s access to sunlight falls within the definition of “invasion,” as it applies to the private use and enjoyment of land. Invasion is typically synonymous with *251“entry,” “attack,” “penetration,” “hostile entrance,” “the incoming' or spread of something unusually hurtful.” Webster’s Third International Dictionary, 1188 (1966). Most of the nuisance cases arising under this definition involve noxious odors, smoke, blasting, flooding, or excessive light invading the plaintiff’s right to the use of enjoyment of his property. See Prosser, Law of Torts, sec. 89, 591-92 (4th ed. 1971) .4 See Williams, Solar Access and Property Rights: A Maverick Analysis, 11 Conn. L. Rev. at 441 (there are significant practical differences between dust and noise, on the one hand, and solar access blockage on the other). Clearly, an owner who merely builds his home in compliance with all building code and municipal regulations is not “invading” another’s right to the use and enjoyment of his property. To say so is to acknowledge that all construction may be an “invasion” because all construction has some restrictive impact on adjacent land. A “view,” for example, is modified by any construction simply because it is there.

In order for a nuisance to be actionable in the instant case, the defendant’s conduct must be “intentional and unreasonable.”5 It is impossible for me to accept the majority’s conclusion that Mr. Maretti, in lawfully seeking to construct his home, may be intentionally and unreasonably interfering with the plaintiff’s access to sunlight. In addressing the “unreasonableness” component of the actor’s conduct, it is important to note that *252“ [t] here is liability for a nuisance only to those to whom it causes significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose.” Restatement (Second) of Torts sec. 821F (1979). The comments to the Restatement further reveal that “[if] normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even though the idiosyncracies of the particular plaintiff may make it unendurable to him.” Id. Comment d.6 See Bie v. Ingersoll, 27 Wis. 2d 490, 493, 135 N.W.2d 250(1965) ; Belmar Drive-In Theatre Co. v. The Illinois State Toll Highway Commission et al., 34 Ill. 2d 544, 547-49, 216 N.E.2d 788 (1966).

I conclude that plaintiff’s solar heating system is an unusually sensitive use. In other words, the defendant’s proposed construction of his home, under ordinary circumstances, would not interfere with the use and enjoyment of the usual person’s property. See W. Prosser, supra, sec. 87 at 578-79. “The plaintiff cannot, by devoting his own,land to an unusually sensitive use, such *253as a drive-in motion picture theater easily affected by light, make a nuisance out of conduct of the adjoining defendant which would otherwise be harmless.” Id. at 579 (footnote omitted).7

Looking solely at the defendant’s conduct, the circuit court concluded that the defendant’s construction of a house did not create a cause of action for nuisance because the defendant’s proposed home was in conformity with zoning regulations, building codes, deed restrictions, as well as the fact that the defendant’s use of the land to build his home was reasonable. The majority, however, cites Bie v. Ingersoll, supra, for the proposition that compliance with the law is not the controlling factor in evaluating a nuisance claim. I note that Bie involved the operation of an asphalt plant from which dust and odors permeated the plaintiff’s adjoining residence. The defendants asserted that, because the property occupied by the asphalt plant was zoned for industrial use, the plant could not constitute a nuisance. This court concluded that the zoning classification was not the controlling factor. “It is rather ‘the peculiar nature and the location of the business, not the fact that it is a business, that constitutes the private nuisance.’ ” 27 Wis. 2d at 495. The Bie case is clearly distinguishable from the case at bar. Here, *254the defendant seeks to build his home in compliance with all existing laws, and it will have no “peculiar nature.” As I read the Bie case, the negative implication from its facts is that a business which does not emit dust or odors (i.e., which has no peculiar nature) and which is in conformity with zoning regulations is not a private nuisance. I would hold under the facts of the instant case that the defendant’s conduct is not unreasonable per se, and consequently, a nuisance cause of action cannot stand.

I further believe that the majority’s conclusion that a cause of action exists in this case thwarts the very foundation of property law. Property law encompasses a system of filing and notice in a place for public records to provide prospective purchasers with any limitations on their use of the property. Such a notice is not alleged by the plaintiff. Only as a result of the majority’s decision did Mr. Maretti discover that a legitimate action exists which would require him to defend the design and location of his home against a nuisance suit, notwithstanding the fact that he located and began to build his house within the applicable building, municipal, and deed restrictions.

Obviously, the legislature was cognizant of the importance of notice. In Chapter 354, Laws of 1981, secs. 66.032(5) and (6) deal with notice to an adjoining landowner :

“(5) Permit grant, (a) The agency shall grant a permit if the agency determines that:

“1. The granting of a permit will not unreasonably interfere with the orderly land use and development plans of the municipality;

“2. No person has demonstrated that she or he has present plans to build a structure that would create an impermissible interference by showing that she or he has applied for a building permit prior to receipt of a notice under sub. (3) (b), has expended at least $500 on planning or designing such a structure or by submitting any other credible evidence that she or he has made substan*255tial progress toward planning or constructing a structure that would create an impermissible interference; and

“3. The benefits to the applicant and the public will exceed any burdens.

“ (b) An agency may grant a permit subject to any condition or exemption the agency deems necessary to minimize the possibility that the future development of nearby property will create an impermissible interference or to minimize any other burden on any person affected by granting the permit. Such conditions or exemptions may include but are not limited to restrictions on the location of the collector and requirements for the compensation of persons affected by the granting of the permit.

“(6) Record op permit. If an agency grants a permit:

“(a) The agency shall specify the property restricted by the permit under sub. (7) and shall prepare notice of the granting of the permit. The notice shall include the identification required under s. 706.05(2) (c) for the owner and the property upon which the solar collector is or will be located and for any owner and property restricted by the permit under sub. (7), and shall indicate that the property may not be developed and vegetation may not be planted on the property so as to create an impermissible interference with the solar collector which is the subject of the permit unless the permit affecting the property is terminated under sub. (9) or unless an agreement affecting the property is filed under sub. (10).

“(b) The applicant shall record with the register of deeds of the county in which the property is located the notice under par. (a) for each property specified under par. (a) and for the property upon which the solar collector is or will be located.”

In recognizing this common law cause of action, this court’s decision is in direct conflict with the 1981 legislative provisions for the granting of solar access permits. In a municipality which enacts the ordinance in conformity with the statute, neighbors know their respective rights. Under the majority decision, in a municipality which does not enact the ordinance, a common law cause of action for nuisance exists without any defined rights.

*256I believe the facts of the instant controversy present the classic case of the owner of a solar collector who fails to take any action to protect his investment. There is nothing in the record to indicate that Mr. Prah disclosed his situation to Mr. Maretti prior to Maretti’s purchase of the lot or attempted to secure protection for his solar collector prior to Maretti’s submission of his building plans to the architectural committee. Such inaction should be considered a significant factor in determining whether a cause of action exists.

The majority’s failure to recognize the need for notice may perpetuate a vicious cycle. Maretti may feel compelled to sell his lot because of Prah’s solar collector’s interference with his plans to build his family home. If so, Maretti will not be obliged to inform prospective purchasers of the problem. Certainly, such information will reduce the value of his land. If the presence of collectors is sufficient notice, it cannot be said that the seller of the lot has a duty to disclose information peculiarly within his knowledge. I do not believe that an adjacent lot owner should be obliged to experience the substantial economic loss resulting from the lot being rendered un-buildable by the contour of the land as it relates to the location and design of the adjoining home using solar collectors.8

I am troubled by the majority’s apparent retrospective application of its decision. I note that the court in Deetz saw the wisdom and fairness in rendering a prospective decision. 66 Wis. 2d at 24. Surely, a decision such as this *257should be accorded prospective status. Creating the cause of action after the fact results in such unfair surprise and hardship to property owners such as Maretti.

Because I do not believe that the facts of the present case give rise to a cause of action for private nuisance, I dissent.

JUSTICE STEWART

delivered the opinion of the court:

The plaintiffs — Larry Dobbs, Frances Dobbs, Wayne Richard, and Lorena Richard — filed a complaint against their neighbor, Donald Wiggins, to enjoin a private nuisance caused by numerous dogs kenneled on Wiggins’s property. On July 21, 2009, the circuit court of Jefferson County, Illinois, entered a judgment against Wiggins that ordered him to decrease the number of dogs in his possession to no more than six and to take all the steps necessary to adequately suppress any noise caused by any barking dogs. Wiggins filed a timely notice of appeal of the circuit court’s judgment. On appeal, Wiggins argues as follows: (1) that the circuit court’s finding that his dogs constituted a nuisance was against the manifest weight of the evidence presented at the trial, (2) that an injunction permanently limiting him to no more than six dogs was unjust and unreasonable, and (3) that the circuit court improperly admitted audio recordings of his barking dogs. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

The plaintiffs and the defendant all reside on a dead-end road, Triton Lane, in rural Jefferson County, Illinois. Larry and Frances Dobbs live on a parcel of property that is directly north of Wiggins’s property, and Wayne and Lorena Richard lived on a parcel of property that lies north of the Dobbs property. The Dobbses and the Richards have lived on their property for approximately 30 years. Wiggins purchased his property on Triton Lane in 1995, built a home and dog kennels on the property, and began raising, training, and kenneling bird dogs.

On November 19, 2007, the Dobbses and the Richards filed a complaint against Wiggins that alleged that barking dogs on the Wig*369gins property constituted a private nuisance. They requested the circuit court to enjoin Wiggins from kenneling dogs on his property or, alternatively, to order him to reduce the number of dogs to a reasonable number and take the steps necessary to adequately suppress the noise caused by any barking dogs.

The circuit court began a two-day bench trial on the plaintiffs’ complaint on April 15, 2009. At the trial, Larry Dobbs testified that he had lived on his property on Triton Lane for 30 years and that his wife, Frances, had lived there with him for 16 years. Wiggins’s property was directly south of his property line. Larry testified that he enjoyed working outside in his garden, in his flower bed, and around his fish pond, sitting outside on his deck, and hosting cookouts for family members. Wiggins’s land used to be farmland, and after Wiggins purchased it in 1995, he began keeping dogs on the property. According to Larry, at first Wiggins “didn’t have that many” dogs, and the dogs did not bark much. However, the noise from barking dogs kenneled on Wiggins’s property grew worse over time. In an attempt to alleviate some of the noise, Larry planted a row of cedar trees on his property.

Larry told the court that his house was approximately 200 to 250 yards from a barn where Wiggins kenneled many of his dogs. Larry testified that the barking was constant, day and night. The dogs might bark for two straight hours, take a break, and start barking again, but there was never any extended period of time in which they completely quit barking. According to Larry, there was rarely a complete hour in which the dogs did not bark. The dogs barked more when they were being fed or when they thought they were going to be taken out of their kennels. In addition, deer and other wildlife running across the property and coyotes howling at night tended to stir up the dogs.

Larry stated that in 2007 the barking was at its worst. When he went outside to do chores, he did not spend any time outside enjoying his property like he had in the past. He used to enjoy having his windows at his home open, but he now keeps them shut because of the barking noise. According to Larry, the noise was worse during the summer months as compared to the winter months. Larry approached Wiggins sometime in August of 2007 to complain about the noise. During the conversation, Wiggins never said he would do anything about the noise; therefore, Larry called the animal control office. Larry told the court that the animal control office forced Wiggins to comply with kennel licensing requirements but did not do anything about the noise. He admitted that since he had filed his lawsuit, he noticed a decrease in the volume of the barking.

*370Larry could not say which year’s noise level was the worst, but he testified that he reached his “breaking point” in July of 2007. He testified that the noise was less at the time of the trial than in July of 2007 because there were fewer dogs on Wiggins’s property; however, the barking noise was still a problem that made it hard for him to enjoy his property. He testified that he could hear the barking from inside his house. Wiggins testified that on February 16, 2009, the parties inspected Wiggins’s kennels in preparation for the trial, and at that time, he counted a total of 69 dogs on Wiggins’s property. During the inspection, whenever someone arrived, the dogs barked for 20 to 30 minutes before quieting down. After the dogs quieted down, they could carry on a normal conversation in front of the kennels.

Frances testified that she had been married to Larry for 16 years and had lived on their property on Triton Lane since that time. Frances noticed the noise from Wiggins’s barking dogs sometime after Wiggins purchased his property. Frances described the barking as “[ejxcessive, continuous, chronic barking.” Frances testified: “I’m an early riser and sometimes I would be up five, six in the morning and they would be barking and continue barking for hours. Then, you know, they might quit for half an hour, couple of minutes. Sometimes I would think, oh, thank goodness, you know, they’ve quit barking and I’d step outside and here they go again and I would have to go back into the house.” Prior to Wiggins kenneling dogs on his property, Frances liked to open the windows to her home in the springtime and let fresh air in. Now she no longer liked to open her windows because of Wiggins’s barking dogs. Frances claimed that the barking could be heard inside and that she had to turn on a radio or television to drown out the noise. She testified that a lot of nights, she could not go to sleep because of the noise.

She told the circuit court that she was an outdoor person who liked to garden, host barbecues in her yard for friends and family, read outside on her deck, and walk for exercise. However, the barking noise had caused her stress and restricted her and Larry from enjoying any outside activities in their yard. She testified that the dogs barked all day. In describing the extent of the barking, she testified that there were one or two “chronic barkers” that set off the other dogs. There were periods when all the dogs barked, and there were periods when one or two dogs barked, which caused the other dogs to bark or howl. In addition, she heard “a lot of whimpering, whining.” From the end of 2007 to the date of the trial, she had not noticed any change in the level or frequency of the barking. She believed that the barking dogs adversely affected the value of their property.

*371Wayne Richard testified that he had lived on Triton Lane with his wife for 30 years. Wayne testified that his house was 200 to 250 yards north of the Dobbs house. He estimated that his house was approximately 500 yards northwest of Wiggins’s property. His house and the Dobbs house were the houses closest to Wiggins’s property. Wayne testified that he liked to garden, mow, and race lawnmowers with his grandson in his yard. In the evenings, he liked to sit outside on his patio and listen to the sounds of nearby wildlife, including coyotes, turkeys, geese, and occasionally, nearby cattle. He testified that the coyotes howling would cause Wiggins’s dogs to start barking.

According to Wayne, Wiggins purchased his property on Triton Lane approximately 15 years ago, and the noise from the dogs on Wiggins’s property gradually increased over time. He stated that it was noticeable in 2007 and became a “real nuisance” to him in 2007. He described the noise as constant barking, at least one dog all the time. At times, the barking was “substantial” and sounded like thousands of dogs. He testified, “[W]e can’t do anything outside without hearing the dogs.” Wayne used to like having his windows open, but with the windows open, he could hear the dogs barking from everywhere in the house. He had to close his windows, and he usually turned on his television or his radio so he could not hear the barking. Wayne had been to the Dobbses’ property and heard the dogs barking inside and outside of their house as well.

Wayne testified that he had two conversations about the dogs with Wiggins. According to Wayne, Wiggins stated that he wanted to be a good neighbor and had bought some device to quiet the dogs but that he was “within his rights” regardless of how many dogs were barking. Wiggins told Wayne that he moved to the country so he could raise the dogs, and Wayne responded that he moved to the country to get away from noise.

Wayne’s wife, Lorena (Lori), testified that she enjoyed various activities outside, including gardening, reading, playing with kids, and cooking out. Now everything she did outside was “to the accompaniment of barking dogs.” She did not invite people over for an outside activity very often anymore because of the noise. She used to like to keep the windows in her house open in the spring before it got too hot, but they did not open the windows as often because of the barking, and they no longer slept with the windows open.

According to Lori, when Wiggins moved into the area, he started raising dogs and the noise began to escalate as he accumulated more dogs. Lori testified that, in 2006, she could no longer ignore the noise. Every time she was outside — morning, noon, and evening — she could hear the dogs barking, whining, howling, and yipping. The noise got *372worse in 2007 and continued through 2009 at the same frequency and intensity. At times, the penned dogs barked so loud she thought they had gotten out and onto her property. Lori testified that she had also heard the dogs barking from both inside and outside of the Dobbs house.

Mary McKowen lived in a house that was approximately 21k miles north of the Dobbs house, and she had lived there for approximately 40 years. She was a longtime friend of Larry Dobbs and his family. McKowen testified that when she and her husband, Nolan, were outside on their property, they could hear Wiggins’s dogs barking to the south. When the wind was coming from the south, the barking was louder than at other times. McKowen testified that in 2007, Frances Dobbs was redecorating at her house, and during this time, McKowen visited the Dobbs property several times a week, sometimes twice a day. During her visits at the Dobbs residence in 2007, McKowen could hear the dogs barking outside every time she visited, which she felt was very annoying.

Charles Downey lived on Triton Lane approximately one mile north of the Dobbs residence, and he had lived there for nearly 30 years. Downey testified that he heard Wiggins’s dogs barking from his property. He could hear the dogs barking when he was outside, but his house was far enough away that the barking did not bother him. Downey had been friends with Larry Dobbs for approximately 30 years. He had been to the Dobbs house at various times and had heard the dogs barking at the Dobbs home. Downey described the barking as “quite a bit louder” at the Dobbs property and testified that the barking would be annoying to listen to all the time.

Downey testified that he also, from time to time, helped Wiggins at his property, including feeding his dogs and horses. In addition, Downey designed and built some of Wiggins’s kennels. Downey estimated that in 2007 Wiggins had more than 100 dogs on his property. The dogs barked when he was at the Wiggins property, but most of the time he could “holler at them” and they would quiet down. Downey testified that he would not want to live where the Dobbses lived because he did not want to “listen to the dogs.” According to Downey, there were approximately six dogs that barked constantly. He could hear the dogs barking from his property as recently as a week or so before the trial.

Randy Phillips, a contractor, testified that the Dobbses hired him to help with their remodeling project in the spring and summer of 2007. He spent approximately 372 months at their property building an addition onto the house, tearing off and replacing the roof on the house, replacing the roof on two garages, tearing off and replacing the *373siding on the house, and tiling the kitchen and dining room. Phillips testified that he would work at the Dobbs home all day and that he could hear the dogs barking all day long. According to Phillips, they never quit barking, and he could hear the dogs from both inside and outside of the house. Although he did not know how many dogs were harking at once, he testified that it was more than one or two dogs.

During cross-examination, Phillips testified that he thought it was not good for a dog to be tied up or confined in a pen. He testified that he had two dogs of his own and that he treated his dogs like they were his kids. He told the court that he hated to see a dog penned. However, he stated that he was different than most people when it came to his dogs and that he was not prejudiced against people who tied up their dogs or penned them outside. He testified that, although he would not pen his own dogs, it did not bother him that Wiggins penned his dogs. He also admitted that there were periods of time that he was making a lot of construction noise that might have caused the dogs to react. However, he testified that the dogs also barked during long periods when he did not make any noise, and he could not remember any time spent at the Dobbs home when he did not hear the dogs barking. He testified that he would not want to live at the Dobbs home and would not consider purchasing the property because of the barking dogs.

Martin Boykin of the Jefferson County animal control testified that in January of 2008, he responded to Triton Lane in response to a complaint that a dog owned by the Dobbses was acting aggressively, trying to bite people, and not allowing the mail to be delivered. On that occasion, he spoke with both Wiggins and Larry Dobbs near their property line for at least a half an hour. In describing the barking coming from the Wiggins property during this visit, Boykin testified: “You could hear somewhat some barking but nothing to — you couldn’t really tell, I mean, a number of dogs or anything like that. It wasn’t nothing loud or, you know, anything that would disturb anyone, I would assume.” He told the circuit court that he did not believe the barking level was “disturbing.” He testified that he had not been to the property except on that one occasion.

For about 17 years, Randy Childers was the mail carrier for the homes on Triton Lane. He testified that when he delivered the mail, he kept either one window or both windows down on his mail truck. Childers did not recall any noise from Wiggins’s dogs when he delivered the mail. He testified that he was there for about a minute, five days a week and that, during that time, he was “delivering the mail [and] not paying much attention to anything else.”

At the trial, veterinarian Gordon Rhine testified by way of an evidence deposition. Rhine owned two dogs that lived inside his house, *374and he owned six dogs that he kenneled outside his house. His kennels were located approximately 150 yards from his nearest neighbor. Rhine testified that he visited Wiggins’s property and inspected his kennels. He inspected the kennels for approximately 45 minutes to an hour. He testified that when he first entered the building where some of the kennels were located, the dogs barked, and as he walked around, more dogs barked. Eventually the barking dogs calmed down, although there continued to be some barking throughout the visit. Rhine described Wiggins’s kennels as typical bird dog kennels that were pretty clean. According to Rhine, the dogs visually appeared to be healthy and happy.

Wiggins testified that he had been involved in raising and training bird dogs since he was a child helping his grandfather raise and train bird dogs. Wiggins liked to compete in field trials with his dogs, and he had won his first field trial in 1984 or 1986. He won his first national field trial title in 2003. In 1985, Wiggins lived in Goreville, Illinois, and raised and trained approximately 60 dogs. He moved to Kentucky in 1989, and in November of 1995, he moved to the property on Triton Lane in rural Jefferson County, Illinois. When he moved back to Illinois, he had approximately 60 to 70 dogs, and he initially moved approximately half of them to his Triton Lane property. He built kennels on the property for penning all of his dogs, and by 1996, he had 50 to 70 dogs in the kennels on his property. Wiggins testified that from 2002 to 2008, he has had a total income of $139,295 from selling his bird dogs. In addition to raising and training bird dogs, Wiggins also ran his own trucking company, which was his primary source of income.

Wiggins testified that after he moved to his Triton Lane property and built his kennels, he asked Larry several times every year whether his dogs bothered him in any way. According to Wiggins, Larry always told him that the dogs were not a problem and that he could not hear them. Wiggins testified that he had hundreds of such conversations with Larry over the years. However, in a conversation on August 11, 2007, Larry told Wiggins that the barking was out of control and asked him to do something about it. According to Wiggins, that was the first time Larry had complained about the barking in the 15 years he had lived there. At that time, he owned approximately 100 dogs.

After that conversation, Wiggins made attempts to reduce the noise level. He believed that there were approximately 20 dogs that barked the most, and he began finding new homes for those dogs. At the time of the trial, he had four of five of the “troublemaker” dogs left. Wiggins also purchased water sprinklers that activated automatically and sprayed the dogs when they barked, he started using 15 or *37516 bark collars that he rotated among the dogs, he placed the noisier dogs inside his barn, he used a training muzzle on some dogs, he played the radio for the dogs, and he installed electronic kennel silencers. In addition, he stored bales of hay along the border of Larry’s property to absorb some of the sound. Wiggins believed that because of these measures, the dogs were quieter at the time of the trial than they had been in 2007.

At the conclusion of the evidence, the circuit court took the matter under advisement. On July 21, 2009, the circuit court entered a judgment in favor of the plaintiffs. Based on the evidence presented, the circuit court found that Wiggins’s dogs barked during all hours of the day and the night. The court found that, although Wiggins’s land was well-suited for a dog kennel, the barking dogs resulted in an invasion of the plaintiffs’ interest in the use and enjoyment of their lands and that the gravity of the harm done to the plaintiffs outweighed the utility of Wiggins’s dog kennels. The court ordered Wiggins to decrease the number of dogs in his possession to no more than six, to kennel his dogs in the southern region of his property, and to take all the steps necessary to adequately suppress any noise caused by any barking dogs. Wiggins filed a timely notice of appeal.

DISCUSSION

The first argument that Wiggins raises on appeal is that the circuit court’s finding that his dogs constituted a nuisance was against the manifest weight of the evidence. We disagree.

“In Illinois, the law is well established that the trial judge, sitting without a jury, has the obligation of weighing the evidence and making findings of fact.” Chicago Investment Corp. v. Dolins, 107 Ill. 2d 120, 124 (1985). “[A]n appellate court will defer to the findings of the circuit court unless they are against the manifest weight of the evidence.” Dolins, 107 Ill. 2d at 124. Accordingly, in the present case, we will review the circuit court’s finding that the barking dogs constituted a nuisance under the manifest-weight-of-the-evidence standard.

“A private nuisance is a substantial invasion of another’s interest in the use and enjoyment of his or her land.” Willmschen v. Trinity Lakes Improvement Ass’n, 362 Ill. App. 3d 546, 553 (2005). “The invasion must be either intentional or negligent, and unreasonable.” Willmschen, 362 Ill. App. 3d at 553. In determining whether particular conduct constitutes a nuisance, the standard is the conduct’s effect on a reasonable person. In re Chicago Flood Litigation, 176 Ill. 2d 179, 204 (1997). The Illinois Supreme Court has frequently stated that a nuisance must be physically offensive to the senses to the extent that *376it makes life uncomfortable. In re Chicago Flood Litigation, 176 Ill. 2d at 205. An invasion constituting a nuisance can include noise, smoke, vibration, dust, fumes, and odors produced on the defendant’s land and impairing the use and enjoyment of neighboring land. In re Chicago Flood Litigation, 176 Ill. 2d at 205-06. Whether the complained-of activity constitutes a nuisance is generally a question of fact. Pasulka v. Koob, 170 Ill. App. 3d 191, 209 (1988). In an action to enjoin a private nuisance, the circuit court must balance the harm done to the plaintiffs against the benefit caused by the defendant’s use of the land and the suitability of the use in that particular location. Carroll v. Hurst, 103 Ill. App. 3d 984, 990 (1982).

In Woods v. Khan, 95 Ill. App. 3d 1087, 1088 (1981), the plaintiffs brought a lawsuit to enjoin the defendants’ poultry business as a private nuisance. The plaintiffs lived within a mile of the defendants’ poultry business in rural Godfrey, Illinois, and they had lived there before the defendants built their facility in the area. Woods, 95 Ill. App. 3d at 1088. The neighborhood was zoned agricultural, and many of the plaintiffs raised livestock on their own property. Woods, 95 Ill. App. 3d at 1088. The plaintiffs complained that the poultry facility resulted in bad odors and swarms of flies and that the intensity of both varied from day to day. Woods, 95 Ill. App. 3d at 1089. Some of the plaintiffs were required to seal their houses when the odor and insects were at their worst, and some plaintiffs cut back on outdoor activities and quit inviting guests to their homes. Some plaintiffs complained of breathing difficulties, sore throats, and nausea. Woods, 95 Ill. App. 3d at 1089.

In Woods, the court concluded “that the trial court properly determined that the odors and flies were sufficiently bothersome to justify injunctive relief.” Woods, 95 Ill. App. 3d at 1090. In weighing the gravity of the harm to the plaintiffs against the utility of the defendants’ business and the suitability of its location, the court stated that the following questions had to be answered: “(1) Are the defendants engaged in a useful enterprise? (2) Is this area of rural Godfrey well suited for an egg production facility? (3) Which came first, the chickens or the plaintiffs? (4) Can the odors and flies be reduced? (5) Is modification of the facility practical?” Woods, 95 Ill. App. 3d at 1090. The court concluded that although the poultry facility was a vital industry, the poultry facility was the “newcomer to the area” and was located too close to several residences.

As noted above, in order to prove an actionable nuisance, the plaintiffs had the burden of proving that barking dogs constituted an invasion that was substantial, intentional or negligent, and unreasonable. The plaintiffs presented sufficient evidence for the circuit court *377to find the elements necessary to conclude that the barking dogs from the Wiggins property constituted a nuisance.

First, the plaintiffs presented sufficient evidence for the circuit court to find that the barking noise emanating from the Wiggins property was substantial. The plaintiffs presented evidence that Wiggins’s barking dogs could be heard inside the plaintiffs’ houses. Wildlife in the area caused the dogs to bark and yelp at all hours of the day and night, and the plaintiffs testified that the constant noise invaded their use and enjoyment of their land. The plaintiffs testified about their enjoyment of outdoor activities but having to curtail those activities because of the noise. The plaintiffs corroborated their trial testimony with the testimony of two other neighbors who also described the barking dogs and the testimony of a contractor who spent more than three months at the Dobbs house working on a remodeling project on a daily basis.

This evidence was sufficient for the circuit court to find that the barking continued for extended periods of time, occurred at all hours of the day and night, and constituted a substantial invasion of the plaintiffs’ properties. In determining whether the noise was substantial, the circuit court had to consider the effect it would have on a normal person of ordinary habits and sensibilities. Statler v. Catalano, 167 Ill. App. 3d 397, 403 (1988). The circuit court found that the plaintiffs were not “unduly sensitive” and were not “delicate, fastidious, [or] pursuing a dainty way of life.” This finding was not against the manifest weight of the evidence. Wiggins disputed the extent of the barking and presented conflicting evidence on that issue, but the circuit court, as the trier of fact, determined the credibility of the witnesses and the weight to be given to the evidence (Ruiz v. Wolf, 250 Ill. App. 3d 121, 124 (1993)). We cannot say that the circuit court’s finding of a substantial invasion of the plaintiffs’ properties was unsupported by the facts presented at the trial.

Second, in order to constitute a nuisance, an invasion must be either intentional or negligent. Willmschen, 362 Ill. App. 3d at 553. The plaintiffs presented sufficient evidence for the circuit court to find that the noise invasion was intentional. For purposes of an intentional invasion, it is not necessary for the circuit court to find that Wiggins kenneled the dogs for the purpose of creating noise. Instead, an intentional invasion occurs when the defendant knows that an invasion of another’s interest in the use or enjoyment of his or her land is resulting or is substantially certain to result. Patterson v. Peabody Coal Co., 3 Ill. App. 2d 311, 316 (1954). The circuit court found that Wiggins “knew that the barking dogs were an invasion of the Plaintiffs’ lands or that it was substantially certain to result.” This *378finding was not against the manifest weight of the evidence presented at the trial. Wiggins kenneled, at times, nearly 100 dogs on his property, knew that he had a few problem dogs that barked frequently, knew that wildlife in the area could set off the dogs, and knew that a few dogs barking often caused a chain reaction, resulting in many of the nearly 100 dogs barking simultaneously. Under these facts, we cannot conclude that it was against the manifest weight of the evidence for the circuit court to find that Wiggins knew that the constant barking noise was substantially certain to be invasive to his neighbors who were located approximately 250 yards away, across an open field.

Third, the circuit court found that the noise nuisance was unreasonable. The resolution of this question of fact required the circuit court to weigh the gravity of the harm done to the plaintiffs against the utility of Wiggins’s kennels and the suitability of the location of his kennels. In re Bloomingdale Partners, 160 B.R. 101, 109 (Bankr. N.D. Ill. 1993). The circuit court found as follows:

“That although the Defendant is operating a small business on his property, the gravity of the harm done to the Plaintiffs outweighs the utility of the Defendant’s business and the suitability of the location of that business. To make this finding the Court balanced the following:

(a) Defendant is engaged in a useful business (raising bird dogs);

(b) Defendant is located in an area of Jefferson County well-suited for a dog kennel;

(c) Plaintiffs were located on their property before the Defendant started his dog kennel;

(d) Although the Defendant has made efforts, the barking of the dogs cannot be reduced to a level that is not a substantial invasion of Plaintiffs’ lands; and

(e) There is no practical way to modify the Defendant’s kennels to stop the dogs from barking.”

The evidence presented at the trial supports the circuit court’s findings. The plaintiffs presented testimony from several witnesses to establish that the noise emanating from Wiggins’s kennels substantially affected their ability to use and enjoy their homes and land. The plaintiffs bought their property and lived in their homes prior to Wiggins buying his property and constructing his kennels. On the other hand, Wiggins presented significant evidence of the utility of his kennels. The undisputed evidence at the trial established that Wiggins’s kennels allowed him to raise and train bird dogs that were monetarily valuable as well as champions in various field competitions around the country. In addition, his kennels were clean, licensed, and well maintained, and the circuit court found that their location in rural *379Jefferson County was suitable for a dog kennel. However, Wiggins’s primary source of income was from his trucking business, not his kennels. The court also heard evidence that after Larry Dobbs complained about the noise to Wiggins in August of 2007, Wiggins attempted several measures to lessen the noise level, but the measures did not diminish the noise level sufficiently to abate the nuisance.

The circuit court was charged with the task of balancing these conflicting interests to determine whether the intentional invasion of barking noise was an unreasonable invasion and, therefore, an actionable private nuisance. The circuit court heard enough evidence to conclude that 69 or more dogs kenneled on Wiggins’s property caused an unreasonable noise invasion that interfered with the plaintiffs’ use and enjoyment of their nearby land. The appellate court is not permitted to “substitute its judgment on questions of fact fairly submitted, tried, and determined from the evidence which did not greatly preponderate either way.” Maple v. Gustafson, 151 Ill. 2d 445, 452-53 (1992). Accordingly, we must affirm the circuit court’s finding that the barking from the dogs kenneled on Wiggins’s property constituted a private nuisance.

Wiggins argues, alternatively, that even if the plaintiffs sufficiently established that his dogs constituted a nuisance, the remedy issued by the circuit court was improper because it effectively terminated his business without affording him an opportunity to reduce or abate the nuisance. The granting of an injunction is within a trial court’s discretion, and on appeal, the reviewing court will only reverse a circuit court’s ruling when the circuit court manifestly abused its discretion. Tamalunis v. City of Georgetown, 185 Ill. App. 3d 173, 189 (1989). The mere existence of a nuisance does not automatically entitle the plaintiffs to injunctive relief against the nuisance. Tamalunis, 185 Ill. App. 3d at 190. “Equity will not, as a matter of course, order relief in nuisance cases until all the circumstances and consequences of such action are considered.” Tamalunis, 185 Ill. App. 3d at 190.

In the present case, the circuit court entered a permanent injunction requiring Wiggins to decrease the number of dogs in his possession to no more than six, to kennel the dogs only at a location in the southern region of his property, and to take all the steps necessary to adequately suppress any noise caused by the dogs barking. It was not against the manifest weight of the evidence for the circuit court to find that the number of dogs Wiggins kenneled on his property at the time of the trial, 69 dogs or more, constituted a private nuisance given the testimony concerning the noise level even after Wiggins attempted measures to reduce the noise. However, the evidence at the trial was insufficient to support a finding that Wiggins must reduce the number *380of dogs in his possession to six in order to abate the nuisance. Therefore, an injunction requiring him to reduce the number of dogs in his possession to six or less was an abuse of discretion under the facts presented at the trial.

The evidence at the trial suggested that Wiggins might be able to correct the nuisance by reducing the number of dogs to some number fewer than 69 but greater than 6. Wiggins began kenneling dogs on his property beginning in 1995, and he did so for more than 10 years without any complaints from his neighbors. The evidence at the trial included testimony describing several measures Wiggins took after August of 2007 to reduce the barking noise. The circuit court found that these measures were insufficient to abate the noise nuisance from the 69 or more barking dogs. However, the evidence presented at the trial was insufficient to determine the maximum number of dogs that could be maintained on the property without causing a private nuisance.

“The restraint imposed by an injunction should not be more extensive than is reasonably required to protect the interests of the party in whose favor it is grantedf ] and should not be so broad as to prevent defendant from exercising his rights.” People ex rel. Traiteur v. Abbott, 27 Ill. App. 3d 277, 282-83 (1975).

Based on the evidence presented at the trial, we cannot determine whether Wiggins can abate the nuisance by reducing the number of dogs on his property to some number fewer than 69 but more than 6. He may be able to reduce the dogs to a number that would allow him to continue his canine business and, along with implementing noise-reduction measures, would reduce the barking noise to a reasonable level. The evidence at the trial was sufficient only for the court to determine that Wiggins could not abate the nuisance with 69 dogs on his property despite his attempts to do so. The evidence was not sufficient for the court to determine the maximum amount of dogs Wiggins could kennel on his property without creating a noise nuisance.

The circuit court found that Wiggins’s canine business was a useful business located in an appropriate rural area, and we believe that further evidence is necessary for the circuit court to determine the proper scope of injunctive relief. The circuit court had insufficient evidence to consider all the circumstances and consequences of injunc-tive relief limiting Wiggins to six dogs, and we believe that the scope of the injunction was an abuse of discretion based on the evidence before the circuit court. Without further evidence, we cannot determine whether the circuit court’s injunction was too broad in scope, creating an unnecessary hardship on Wiggins. We do not offer any opinion on the number of dogs Wiggins should be limited to ken*381neling on his property; we only conclude that the evidence presented at the trial was insufficient to determine the appropriate remedy. Accordingly, we remand this cause for further proceedings relevant to the scope of the injunctive relief necessary to abate the noise nuisance.

Wiggins maintains on appeal that the circuit court improperly admitted recordings made by the plaintiffs of his dogs barking. We disagree. “Evidentiary rulings are within the sound discretion of the trial court and will be upheld absent an abuse of discretion that resulted in prejudice to the objecting party.” Stallings v. Black & Decker (U.S.), Inc., 342 Ill. App. 3d 676, 683 (2003). “An abuse of discretion occurs when no reasonable person would rule as the circuit court ruled.” Aguirre v. City of Chicago, 382 Ill. App. 3d 89, 98 (2008). We also note that there is a strong presumption in a bench trial that the trier of fact relied only on proper evidence in reaching its decision on the merits. Loseke v. Mobles, 217 Ill. App. 3d 521, 524 (1991).

During the trial, the plaintiffs admitted two recordings from digital audio recorders. Sound recordings are generally admissible if a proper foundation is laid, and the proper foundation depends upon the particular circumstances of a case. People ex rel. City of Leland Grove v. City of Springfield, 193 Ill. App. 3d 1022, 1041 (1990) (relying on M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §901.6, at 634 (4th ed. 1984)). Generally, the authentication of an audio recording is sufficient if a witness testifies to having been present at the time the conversation was recorded and states that the recording “ ‘fully, fairly, and accurately reflects the conversation.’ ” In re Estate of Jones, 159 Ill. App. 3d 377, 386 (1987), quoting M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §901.6, at 634 (4th ed. 1984). We agree with the plaintiffs that the circuit court did not abuse its discretion in allowing the admission of the sound recordings.

Larry Dobbs identified the digital recorders used to make the recordings, testified concerning where and how he took the recordings, and testified concerning what he did with the recordings after they were made. Both Larry and Frances testified that the portions of the tape recordings played at the trial fairly and accurately reflected what they heard while on their property. Whether the Dobbses manipulated the recording process or whether the recording otherwise accurately depicted the sound level were matters that were properly raised on cross-examination and that went to the weight of the evidence, not its admissibility.

CONCLUSION

For the foregoing reasons, we affirm in part and reverse in part the judgment of the circuit court of Jefferson County granting the *382plaintiffs a permanent injunction, and we remand for further proceedings.

Affirmed in part and reversed in part; cause remanded.

CHAPMAN and DONOVAN, JJ., concur.

REYNOLDSON, Chief Justice.

Plaintiff Page County Appliance Center, Inc. (Appliance Center), sued Honeywell, Inc. (Honeywell), and ITT Electronic Travel Services, Inc. (ITT), for nuisance and tor-tious interference with business relations. Defendants appeal from judgment entered on jury verdicts awarding compensatory and punitive damages. Honeywell appeals from a judgment rendered against it on ITT’s cross-claim for indemnification. We reverse and remand for new trial.

Appliance Center has owned and operated an appliance store in Shenandoah, Iowa, since 1953. In 1975 the store was acquired from his father by John Pearson, who sold televisions, stereos, and a variety of appliances. Before 1980 Pearson had no reception trouble with his display televisions. In early January 1980, however, ITT placed one of its computers with Central Travel

*174Service in Shenandoah as part of a nationwide plan to lease computers to retail travel agents. Central Travel was separated by only one other business from the Appliance Center. This ITT computer was manufactured, installed, and maintained by Honeywell.

Thereafter many of Pearson’s customers told him his display television pictures were bad; on two of the three channels available in Shenandoah he had a difficult time “getting a picture that was fit to watch.” After unsuccessfully attempting several remedial measures, in late January 1980, he finally traced the interference to the operations of Central Travel’s computer. Both defendants concede Pearson’s problems were caused by radiation leaking from the Honeywell computer.

Pearson discussed the problem with Kay Crowell, owner of Central Travel. She placed a call to ITT’s president in New York. Although he was unavailable, ITT personnel apparently notified Honeywell. ITT’s only contact with Pearson was through a telephone call some ten months later. At that time Pearson told ITT’s sales representative that Honeywell was working on the problem; he made no effort to follow up on ITT’s interest in the problem.

Honeywell indeed was working to correct the situation, and had been since February 1980. Honeywell technicians made repeated trips to make various unsuccessful adjustments to the computer. They found the computer was operating properly; the interference-causing radiation was a design and not a service problem. Pearson then telephoned Armando Benitez, the technicians’ supervisor. Pearson testified Beni-tez told him Honeywell was “way over budget” on the Central Travel computer and that “if you don’t like it, you can move.”

Nonetheless, in early fall of 1980 Honeywell sent out Phil Brzozoski, one of its engineers from Boston. According to Pearson, when he asked Brzozoski why it had taken him so long to come, the latter replied he would not have been there at all had Pearson not instituted suit; that was the way big business worked. Kay Cro-well, admittedly Pearson’s friend, testified Brzozoski told her the delay was “good business.” Pearson in fact did not bring suit until December 22, 1980, although his counsel sent demand letters to Honeywell and ITT in October 1980. At trial a top Honeywell employee testified it was not company policy to await lawsuits before taking remedial action.

The Honeywell engineers effected a 70 percent improvement in the television reception by certain modifications of the computer in the fall of 1980. Pearson, still dissatisfied, started this action in December. While the suit was pending, Honeywell further modified the computer, finally alleviating Pearson’s problems in May 1982.

At trial a Honeywell senior staff engineer admitted the technology to manufacture a non-radiation-emitting computer was available long before it developed this computer, but opined it would have been neither cost nor consumer effective to utilize that technology. He testified Honeywell believed it had corrected Pearson’s problems in the fall of 1980.

The Appliance Center’s case against Honeywell and ITT finally was submitted to the jury on the theories of nuisance and tortious interference with prospective business relations. It asked for only injunctive relief against Kay Crowell, doing business as Central Travel Service. The latter’s motion for summary judgment was sustained. The jury found for the Appliance Center against the remaining defendants on both theories, and further found the Appliance Center should recover $71,000 in compensatory damages and $150,000 in exemplary damages. Following jury trial, Kay Cro-well’s cross-claim against Honeywell and ITT’s cross-claim against Honeywell were submitted to the court. Crowell’s cross-claim was dismissed. She did not appeal and is not involved in this proceeding. Trial court awarded ITT full indemnity against Honeywell, in the amount of $221,-000, together with attorney fees and costs. *175Both defendants appeal from the judgment in favor of Appliance Center; Honeywell additionally appeals from the judgment awarding ITT indemnity.

Defendants raise a number of claimed trial court errors, discussed in the divisions that follow.

I. Should Trial Court Have Granted Defendants’ Motions for Directed Verdict and for Judgment Notwithstanding the Verdict on the Nuisance Count?

A. ITT argues trial court should have granted its motions for directed verdict because the Appliance Center property was being used for a purpose peculiarly sensitive to computer emissions, and because plaintiff did not prove ITT substantially participated in the creation or maintenance of the alleged nuisance.

Certain general principles govern our review here. In considering the propriety of a motion for directed verdict the court views the evidence in the light most favorable to the party against whom the motion is made. Iowa R.App.P. 14(f)(2). We examine the evidence in the same light to determine whether there was a jury issue. Lewis v. Baker, 251 Iowa 1173, 1176, 104 N.W.2d 575, 577 (1960).

Our analysis of ITT’s first contention must start with Iowa Code section 657.1, which in relevant part states:

Whatever is ... an obstruction to the free use of property, so as essentially to interfere with the ... enjoyment of ... property, is a nuisance, and a civil action by ordinary proceedings may be brought to enjoin and abate the same and to recover damages sustained on account thereof.-

Narrowing our focus, we note the Appliance Center is alleging a “private-nuisance,” that is, an actionable interference with a person’s interest in the private use and enjoyment of his or her property. Larsen v. McDonald, 212 N.W.2d 505, 508 (Iowa 1973). It also is apparent that if Central Travel’s computer emissions constitute a nuisance it is a “nuisance per acci-dens, or in fact” — a lawful activity conducted in such a manner as to be a nuisance. Pauly v. Montgomery, 209 Iowa 699, 702, 228 N.W. 648, 650 (1930).

Principles governing our consideration of nuisance claims are well established. One’s use of property should not unreasonably interfere with» or disturb a neighbor’s comfortable and reasonable use and enjoyment of his or her estate. A fair test of whether the operation of a lawful trade or industry constitutes a nuisance is the reasonableness of conducting it in the manner, at the place, and under the circumstances shown by the evidence. Each case turns on its own facts and ordinarily the ultimate issue is one of fact, not law. Patz v. Farmegg Products, Inc., 196 N.W.2d 557, 560-61 (Iowa 1972); Bates v. Quality Ready-Mix Co., 261 Iowa 696, 704, 154 N.W.2d 852, 857 (1968). The existence of a nuisance is not affected by the intention of its creator not to injure anyone. Patz, 196 N.W.2d at 561. Priority of occupation, and location — “who was there first” — is a circumstance of considerable weight. Stock-dale v. Agrico Chemical Co., 340 F.Supp. 244, 252 (N.D.Iowa 1972); Helmkamp v. Clark Ready Mix Co., 214 N.W.2d 126, 129 (Iowa 1974); Kriener v. Turkey Valley Community School District, 212 N.W.2d 526, 530 (Iowa 1973).

When the alleged nuisance is claimed to be offensive to the person, courts apply the standard of “normal persons in a particular locality” to measure the existence of a nuisance. Patz, 196 N.W.2d at 561; see also Kellerhals v. Kallenberger, 251 Iowa 974, 980, 103 N.W.2d 691, 694 (1960). This normalcy standard also is applied where the use of property is claimed to be affected. “The plaintiff cannot, by devoting his own land to an unusually sensitive use, ... make a nuisance out of conduct of the adjoining defendant which would otherwise be harmless.” W. Prosser, The Law of Torts § 87, at 579 (4th ed.1971).

In the case before us, ITT asserts the Appliance Center’s display televisions constituted a hypersensitive use of its *176premises as a matter of law, and equates this situation to cases involving light thrown on outdoor theater screens in which light-throwing defendants have carried the day. See Belmar Drive-In Theatre Co. v. Illinois State Toll Highway Commission, 34 I11.2d 544, 216 N.E.2d 788 (1966); Lynn Open Air Theatre, Inc. v. Sea Crest Cadillac-Pontiac, Inc., 1 Mass.App.Ct. 186, 294 N.E.2d 473 (1973); Amphitheaters, Inc. v. Portland Meadows, 184 Or. 336, 198 P.2d 847 (1948); Sheridan Drive-In Theatre, Inc. v. State, 384 P.2d 597 (Wyo.1963). Several of those cases are distinguishable both on facts and by the way the issue was raised.

We cannot equate the rare outdoor theater screen with the ubiquitous television that exists, in various numbers, in almost every home. Clearly, the presence of televisions on any premises is not such an abnormal condition that we can say, as a matter of law, that the owner has engaged in a peculiarly sensitive use of the property. This consideration, as well as related considerations of unreasonableness, gravity of harm, utility of conduct, and priority of occupation, are factual determinations that should have been submitted to the jury in this case. We find no trial court error in refusing to direct a verdict on this ground.

ITT’s second contention asserts trial court should have directed a verdict in its favor because it did not participate in the creation or maintenance of the alleged nuisance. We have noted ITT was engaged in a multimillion dollar, national program to lease computers to travel agencies. It owned this computer and leased it to Central Travel. It was to ITT that the agency first turned when the effect of the computer radiation became apparent. ITT continued to collect its lease payments; the computer did not operate for the benefit of Crowell alone. The jury could have found ITT evidenced some measure of its responsibility, as owner of the computer, in contacting Honeywell and making belated inquiries regarding Appliance Center’s problems both to Pearson and Crowell.

It is no ground for directed verdict that the computer was leased to Central Travel. “One is subject to liability for a nuisance caused by an activity, not only when he carries on the activity but also when he participates to a substantial extent in carrying it on.” Restatement (Second) of Torts § 834 (1979). Even one who contracts out nuisance-causing work to independent contractors may have the duty, upon notice, “to take reasonably prompt and efficient means to suppress the nuisance.” Shannon v. Missouri Valley Limestone Co., 255 Iowa 528, 533, 122 N.W.2d 278, 281 (1963). A failure to act under circumstances in which one is under a duty to take positive action to prevent or abate the invasion of the private interest may make one liable, Restatement (Second) of Torts § 824, and this may include a lessor or licensor. Id. comment d.

An action for damages for nuisance need not be predicated on negligence. Claude v. Weaver Construction Co., 261 Iowa 1225, 1229, 158 N.W.2d 139, 143 (1968). Nuisance ordinarily is considered as a condition, and not as an act or failure to act on the part of the responsible party. Sparks v. City of Pella, 258 Iowa 187, 190, 137 N.W.2d 909, 911 (1965). A person responsible for a harmful condition found to be a nuisance may be liable even though that person has used the highest possible degree of care to prevent or minimize the effect. Ryan v. City of Emmetsburg, 232 Iowa 600, 605, 4 N.W.2d 435, 439 (1942); Bowman v. Humphrey, 132 Iowa 234, 236-37, 109 N.W. 714, 715 (1906).

Where there is reasonable doubt whether one of several persons is substantially participating in carrying on an activity, the question is for the trier of fact. Restatement (Second) of Torts § 834 comment d. We hold such reasonable doubt existed on the record made in this case, and trial court did not err in Refusing to direct a verdict on this ground.

Our holding on the two issues discussed above disposes of ITT’s contention trial court should have granted its motion for *177judgment notwithstanding the verdict, posited on the same grounds.

B. Honeywell asserts trial court should have granted its motion for directed verdict because, even though it manufactured the computer, Central Travel and ITT were in control of the instrument at all relevant times; thus Honeywell did not have the legal right to terminate its use. Honeywell devotes ten and one-half pages of its brief to this thesis without mentioning that it had an ongoing contract to service and maintain the computer.

Much of what we have written in subdivision 1(A) applies here. Again, the issue is one of material participation. Honeywell’s design permitted radiation to escape this computer, although technology was available to minimize this effect. Apparently factors of cost and ease of service access weighed more in the design decision. Honeywell was the only party with the technological know-how to control the radiation leakage. Its maintenance contract with ITT clearly absolved it of any liability if anyone else made any alterations or additions to the equipment, and reserved the right to terminate the agreement should that occur. As with ITT, we think Honeywell’s material participation was an issue for the finder of fact.

II. Should Trial Court Have Directed a Verdict for Defendants on Appliance Center’s Claim for Tortious Interference With Prospective Contractual Relations?

The Appliance Center’s petition alleged: That the manufacture and installation of said computer and the interference resulting therefrom has damaged the Plaintiff by the loss of sales of television sets and other appliances in the past, thus loss of profits, and will continue to damage the Plaintiff through loss of sales and loss of profits in the future and damage to Plaintiff’s business reputation.

We have described the tort Appliance Center pled and attempted to prove as an interference with prospective business advantage. Farmers Cooperative Elevator, Inc., Duncombe v. The State Bank, 236 N.W.2d 674, 679 (Iowa 1975); see also Clark v. Figge, 181 N.W.2d 211, 213-14 (Iowa 1970). Recognition of such actionable tort protects the expectancies of “future contractual relations, such as the ... opportunity of obtaining customers.” W. Prosser, Law of Torts § 130, at 950 (4th ed. 1971).

In our decisions examining this tort, however, we have held a purpose on defendant’s part to financially injure or destroy the plaintiff is essential. Farmers Cooperative, 236 N.W.2d at 681 (“To give rise to a viable cause of action ... the actor must have as at least one of his objects the purpose to injure or destroy the plaintiff.”); see also Harsha v. State Savings Bank, 346 N.W.2d 791, 799-800 (Iowa 1984); Clark v. Figge, 181 N.W.2d at 213-14; Boggs v. Duncan-Schell Furniture Co., 163 Iowa 106, 114-16, 143 N.W. 482, 485-86 (1913); Dunshee v. Standard Oil Co., 152 Iowa 618, 626-27, 132 N.W. 371, 374-75 (1911). Although the Restatement’s current position softens this requirement in this developing field of the law, compare Restatement (Second) of Torts (Tentative Draft 14) § 766A comment d, quoted in Farmers Cooperative, 236 N.W.2d at 681-82, with Restatement (Second) of Torts § 767 comment on clause b- (1979), we are not inclined to depart from our long-established rule.1 That defendant act with the purpose to financially injure or destroy is still the prevailing requirement in this kind of case. See W. Prosser, § 130, at 952 (“No case has been found in which intended but purely incidental interference resulting from the pursuit of the defendant’s own ends by proper means has been held to be actionable.”). This is not a situation involving a *178specific contractual relationship or expectancy, in which the rule appears to impose liability on one who intentionally and unjustifiably interferes in pursuit of another objective, causing damage. See Westway Trading Corp. v. River Terminal Corp., 314 N.W.2d 398, 402-03 (Iowa 1982); Stol-ler Fisheries, Inc. v. American Title Insurance Co., 258 N.W.2d 336, 340 (Iowa 1977); Restatement (Second) of Torts §§ 766, 766A. Both rules operate to avoid opening the door to virtually limitless suits of a highly speculative and remote nature. See Nebraska Innkeepers, Inc. v. Pitts-burg-Des Moines Corp., 345 N.W.2d 124, 130 (Iowa 1984).

Defendants’ motions for directed verdict raised this purpose issue. Viewing the evidence in the light most favorable to the Appliance Center, we hold it did not introduce substantial evidence of a purpose on the part of either defendant to injure or destroy the Appliance Center’s business. See Farmers Cooperative, 236 N.W.2d at 682. At the most, defendants’ actions or lack of action can only be interpreted as showing a total disregard for the success of the Appliance Center’s enterprise.' The motions for directed verdict on this count should have been granted.

III. Should Trial Court Have Submitted the Issue of Compensatory Damages to the Jury, and if so, was the Award Excessive as a Result of Passion and Prejudice?

A. Honeywell asserts there was no competent evidence the computer interference caused plaintiff any actual damages, therefore, its motion for directed verdict on this ground should have been sustained. We treat this issue briefly for the guidance it may furnish on the retrial of this case.

We take a broad view in determining the sufficiency of evidence of damages. If the evidence shows damages have been sustained, we uphold recovery so long as the record discloses a reasonable basis from which the amount can be inferred or approximated.

Westway Trading Corp. v. River Terminal Corp., 314 N.W.2d 398, 403 (Iowa 1982); see Larsen v. United Federal Savings and Loan Association, 300 N.W.2d 281, 288 (Iowa 1981); Shinrone, Inc. v. Tasco, Inc., 283 N.W.2d 280, 286 (Iowa 1979). The problem of proof the Appliance Center faced in these circumstances is discussed in Restatement (Second) of Torts § 912 comment d at 483 (1979), which states in part:

Although the burden is on the injured person to prove with a fair degree of certainty that the business or transaction was or would have been profitable, it is not fatal to the recovery of substantial damages that he is unable to prove with definiteness the amount of the profits he would have made or the amount of harm that the defendant has caused. It is only essential that he present such evidence as might reasonably be expected to be available under the circumstances.

Appliance Center placed its 1976 through 1981 tax returns in evidence. Large decreases in income in 1980 and 1981 were posted, as contrasted to a growth in the prior years. There was testimony that color televisions constituted 60 percent of the gross sales, and that sales of these items dropped drastically in 1980 and 1981.

This evidence was not as precise as one might wish, nor was the effect, if any, of “a little bit of a downturn” in business generally in the community. Nonetheless, we hold it minimally was sufficient to take the issue to the jury, and that trial court did not err in refusing to direct a verdict on this ground.

B. ITT argues trial court should have sustained its motion for new trial on the ground the jury’s verdict for compensatory damages was excessive. ITT asserts that, inasmuch as the Appliance Center’s evidence was inadequate to justify such an award, it must have resulted from passion and prejudice against the defendants. -We already have indicated the evidence of damage, although lacking in precision, was sufficient to justify the award returned by the jury. We find no error in trial court’s failure to grant a new trial.

*179• IV. Should, Trial Court Have Submitted to the Jury the Issue of Punitive Damages?

In their exceptions to instructions and in their post-trial motions, both Honeywell and ITT asserted there was no evidence to justify submitting the issue of punitive damages to the jury. The issue was submitted, and the jury fixed an award of $150,000 in favor of Appliance Center against both defendants. As we shall discuss below, trial court later allowed ITT full indemnity, including this amount, against Honeywell.

Our basic rules relating to punitive or exemplary damages were summarized in Feeney v. Scott County, 290 N.W.2d 885, 892 (Iowa 1980):

Exemplary damages are not awarded as a matter of right; rather, their allowance rests with the fact finder. Young v. City of Des Moines, 262 N.W.2d 612, 620 (Iowa 1978). Their award “depends upon whether under the facts in a particular case such [an] award is appropriate in order to punish an offending party or discourage others from similar wrongful conduct.” Meyer v. Nottger, 241 N.W.2d 911, 922 (Iowa 1976). This determination depends upon the existence of malice — either actual or legal malice. “[L]egal malice ... may be established by showing wrongful or illegal conduct committed or continued with a willful or reckless disregard of another’s rights.” McCarthy v. J.P. Cullen & Son Corp., 199 N.W.2d 362, 369 (Iowa 1972).

A decision that provides guidance in determining the issue before us is Claude v. Weaver Construction Co., 261 Iowa 1225, 1232,158 N.W.2d 139,144 (1968), where we quoted approvingly the following from Newman v. Nelson, 350 F.2d 602, 604-05 (10th Cir.1965):

[T]he mere commission of a nuisance justifying an award of actual damages would be insufficient to justify the assessment of punitive damages as a penalty. In other words, to be liable for actual damages one need only create or commit a nuisance, but to be punished for it he must create and persistently maintain it with a reckless disregard for the rights of others.

See generally Annot., 31 A.L.R.3d 1346 (1970). In many controversies involving punitive damages, the fighting issue is the existence of legal malice. See, e.g., Kim-mel v. Iowa Realty Co., 339 N.W.2d 374, 382-84 (Iowa 1983); Westway Trading Corp. v. River Terminal Corp., 314 N.W.2d 398, 404 (Iowa 1982); Holcomb v. Hoffschneider, 297 N.W.2d 210, 213-15 (Iowa 1980); White v. Citizens National Bank, 262 N.W.2d 812, 817 (Iowa 1978). Such a case was Claude, 261 Iowa at 1235, 158 N.W.2d at 146, where we wrote:

Viewed in a light most favorable to plaintiffs, it is to us evident some substantial evidence was presented disclosing defendant knowingly and intentionally, without just cause, persisted in the maintenance of a private nuisance despite repeated protests and complaints of its harmful consequences, thereby disclosing such willful disregard for plaintiffs’ rights as to create a jury issue relative to punitive damages.

Honeywell argues Appliance Center did not introduce substantial evidence of legal malice with respect to it. ' It points to its prompt efforts to obviate the radiation leakage from the computer, and its ultimate correction of the problem through expensive alterations and additions. These efforts, it claims, effectively negated the element of malice necessary for a punitive damage claim, citing White, 262 N.W.2d at 817. Honeywell further argues it had no legal right to turn off the computer as did ITT and Crowell of Central Travel.

Appliance Center, on the other hand, asserts there was evidence from which the jury could find that after a brief flurry of trying to correct the problem inexpensively, Honeywell decided it had spent too much money and informed Pearson that if he did not like the situation he could move. Only after threat of a lawsuit, Appliance Center argues, did Honeywell again make an effort in October of 1980. Calls from Pearson went unanswered. Little or no *180attention was paid to the radiation leakage during 1981 and only when trial approached did Honeywell spend the time and money to resolve the problem in May 1982. Appliance Center relies on Claude, 261 Iowa at 1235, 158 N.W.2d at 146, where we wrote:

Defendant generally contends manifestation of solicitude, use of modern equipment, and efforts to eliminate or reduce offensive dust and smoke bar plaintiffs’ right to recover punitive damages. This is to us a novel but nonpersuasive approach. Stated otherwise, we do not believe full play of the facts allows defendant to hide behind any such ineffective barricade.

That which an offending party says or professes may be important, but is quickly obliterated by counterprevailing conduct of such nature as to disclose the declarations made were in fact meaningless. In a case such as that here presented, it is actual conduct which controls, not statements of interest, sympathy, or concern.

Under the record made in this trial, we cannot say trial court erred in submitting the punitive damage claim against Honeywell to the jury.

We do not reach the same decision, however, with respect to ITT. The record made here does not disclose substantial evidence that it was guilty of legal malice — a showing of wrongful or illegal conduct committed or continued with a willful or reckless disregard of another’s rights. McCarthy, 199 N.W.2d at 369.

ITT argues its only role was taking legal title to the computer from Honeywell and leasing it to Central Travel. When it received Pearson’s complaint from its lessee it relayed it to Honeywell. Thereafter, Honeywell was undertaking the necessary adjustments and alterations. ITT points out that at no time did Appliance Center contact ITT directly. Although ITT’s representative telephoned Pearson, the latter did not ask ITT to check back or to supervise the ongoing efforts of Honeywell.

Appliance Center argues ITT had a part in maintaining the nuisance despite Pearson’s complaints, thereby disclosing a willful disregard for the Center’s rights.

Terms of the lease agreement between Central Travel and ITT were never disclosed. There is little proof of ITT’s knowledge of the extent of Pearson’s problem or of Honeywell’s allegedly dilatory efforts to correct it. Although we do not necessarily agree with trial court’s findings in its ruling on ITT’s cross-claim for indemnity, we think it is significant that it found “[t]he claims ... made against ITT by plaintiff ... were not ... based on alleged independent wrongful conduct of ITT against plaintiff [but] resulted solely from ITT’s relationship with [and] reliance upon Honeywell.” This finding is difficult to square with trial court’s submission of the punitive damage issue against ITT to the jury.

For the guidance it may offer on retrial, we hold on this record a jury issue was generated on Honeywell’s liability for punitive damages, but not on ITT’s.

V. Did Trial Court Improperly Award Indemnity to ITT on its Cross-Claim.?

ITT filed a cross-claim against Honeywell. Count I was for indemnity, alleging, inter alia, ITT’s liability, if any, would be only derivative or vicarious, the duty was delegated to Honeywell by contract, and Honeywell’s negligence would be active or primary while ITT’s would be passive or secondary. Count II cross-claimed for contribution, which does not concern us here.

Trial court found the Appliance Center’s claims were those on which ITT was secondarily liable and Honeywell primarily liable. It found Honeywell sold, installed, and maintained the computer under an express warranty the machine was free from defects in workmanship, fabrication, or material, and that ITT notified Honeywell of the complaints and its intent that the latter defend any action against ITT and indemnify it in the event of judgment. Trial court concluded ITT’s involvement was passive, Honeywell’s was active, and that ITT’s liability resulted from its reliance on Honey*181well. Accordingly, it awarded ITT indemnity for the total damages of $221,000, together with interest, attorney fees, expenses and costs.

Appealing, Honeywell relies on express terms of its contract with ITT that provide ITT’s “exclusive remedy and Honeywell’s entire liability in contract, tort or otherwise” shall be the repair or exchange of equipment parts; and that “[i]n no event will Honeywell be liable for any indirect, special or consequential damages arising out of this Agreement or the use of any equipment, Software Product, documentation or service provided under this Agreement.”

Honeywell asserts trial court completely disregarded these provisions. There is considerable question whether trial court’s attention was directed to these provisions. There is no mention of them in Honeywell’s answer to the cross-claim. In its oral motion to dismiss the claim, it simply stated “that the contract in and of itself shows they are not entitled to contribution or indemnity.”

Honeywell further argues trial court’s finding that ITT’s involvement was passive was belied by the jury’s verdicts finding both defendants liable for compensatory and punitive damages.

ITT’s brief on appeal does not raise the issue that contract provisions were not relied on in trial court. It contends the provisions are unclear; the contract was prepared by Honeywell and must be construed against it; the provision as interpreted by Honeywell is unconscionable. ITT continues to argue its conduct was passive and that it should be only secondarily liable because it had no part in the design, construction, operation, or maintenance of the computer. It points out the jury was not given an opportunity to apportion responsibility between the defendants.

Our working rules relating to such indemnity were set out in McCarthy v. J.P. Cullen & Son Corp., 199 N.W.2d 362, 371-73 (Iowa 1972). The remedy was extensively analyzed, together with'the active-passive distinction, in Sweeny v. Pease, 294 N.W.2d 819, 821-23 (Iowa 1980). We have considerable doubt that the active-passive ground for indemnity is applicable under this record, but do not reach that issue because we hold the contract between these defendants waives ITT’s right to assert the action.

Assuming the contract was prepared by Honeywell — a fact not disclosed in the record — we can find no ambiguity in the provisions limiting ITT’s remedy and Honeywell’s liability under the contract. The rule of construction ITT asserts thus affords it no relief. The fifty-one page agreement was not a consumer, adhesion-type agreement. Obviously it was structured by two large corporations, negotiating at arm’s length. It is replete with handwritten modifications, additions, and deletions. On the record before us, we find no ground to hold it was unconscionable. It is likely the problem arising here was not contemplated by the parties. Nonetheless, the broad language of the agreement leaves no flexibility, a feature that might have been included at the time.

VI. Did Trial Court’s Instructions Improperly State the Iowa Law of Nuisance?

Trial court’s instructions required Appliance Center to prove defendants “unreasonably” interfered with the Center’s use and enjoyment of its property. Honeywell and ITT objected, in essence, that this permitted the jury to judge “unreasonableness” in a vacuum; that the instructions made no attempt to define the unreasonableness concept. Because reasonableness under our nuisance decisions ordinarily is a question for the jury, see Bates v. Quality Ready-Mix Co., 261 Iowa 696, 704, 154 N.W.2d 852, 857 (1968), the court on retrial should provide more guidance for the jury.

In Bates, 261 Iowa at 703, 154 N.W.2d at 857, we noted that reasonableness is a function of the manner in which, and the place where, defendant’s business is conducted, and the circumstances under which defendant operates. Additional factors, *182enumerated m Patz v. Farmegg Products, Inc., 196 N.W.2d 557, 561 (Iowa 1972), include priority of location, character of the neighborhood, and the nature of the alleged wrong. The “character and gravity of the resulting injury” is, in fact, “a major factor in determining reasonableness,” Montgomery v. Bremer County Board of Supervisors, 299 N.W.2d 687, 697 (Iowa 1980). Balanced against the gravity of the wrong is the utility and meritoriousness of the defendant’s conduct, Riter v. Keokuk Electro-Metals Co., 248 Iowa 710, 721, 82 N.W.2d 151, 158 (1957). See also Stock-dale v. Agrico Chemical Co., 340 P.Supp. 244, 252-53 (N.D.Iowa 1972). Such relevant factors and others are more succinctly summarized in Restatement (Second) of Torts sections 826, 827 and 828 (1979).

Another instruction given in this case stated that “[o]ne who contributes to the creation or continuance of a nuisance may be liable.” ITT objected that neither this instruction nor any other informed the jury that a defendant’s conduct must be a “substantial factor” in bringing about the alleged harm. Upon retrial the instructions should incorporate this requirement. See Shannon v. Missouri Valley Limestone Co., 255 Iowa 528, 535, 122 N.W.2d 278, 282 (1963); Restatement (Second) of Torts § 834 and comment d.

Both Honeywell and ITT objected because the court did not submit to the jury the issue whether Appliance Center was devoting its premises to an unusually sensitive use. The discussion in division I is relevant here. We hold defendants were entitled to have this question resolved by the jury.

In view of our holding in division II, we do not examine defendants’ issues concerning instructions relating to tortious interference with prospective business relations.

We reverse and remand with instructions to set aside the judgment in favor of Appliance Center against Honeywell and ITT, and the judgment entered on ITT’s cross-claim against Honeywell. Defendants shall be granted a new trial in conformance with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

SHIRLEY S. ABRAHAMSON, J.

This appeal from a judgment of the circuit court for Waukesha county, Max Raskin, circuit judge, was certified to this court by the court of appeals, sec. (Rule) 809.61, Stats. 1979-80, as presenting an issue of first impression, namely, whether an owner of a solar-heated residence states a claim upon which relief can be granted when he asserts that his neighbor’s proposed construction of a residence (which conforms to existing deed restrictions and local ordinances) interferes with his access to an unobstructed path for sunlight across the neighbor’s property. This case thus involves a conflict between one landowner (Glenn Prah, the plaintiff) interested in unobstructed access to sunlight across adjoining property as a natural source of energy and an adjoining landowner (Richard D. Mar-*225etti, the defendant) interested in the development of his land.

The circuit court concluded that the plaintiff presented no claim upon which relief could be granted and granted summary judgment for the defendant. We reverse the judgment of the circuit court and remand the cause to the circuit court for further proceedings.

I.

According to the complaint, the plaintiff is the owner of a residence which was constructed during the years 1978-1979. The complaint alleges that the residence has a solar system which includes collectors on the roof to supply energy for heat and hot water and that after the plaintiff built his solar-heated house, the defendant purchased the lot adjacent to and immediately to the south of the plaintiff’s lot and commenced planning construction of a home. The complaint further states that when the plaintiff learned of defendant’s plans to build the house he advised the defendant that if the house were built at the proposed location, defendant’s house would substantially and adversely affect the integrity of plaintiff’s solar system and could cause plaintiff other damage. Nevertheless, the defendant began construction. The complaint further alleges that the plaintiff is entitled to “unrestricted use of the sun and its solar power” and demands judgment for injunctive relief and damages.1

*226After filing his complaint, the plaintiff moved for a temporary injunction to restrain and enjoin construction by the defendant. In ruling on that motion the circuit court heard testimony, received affidavits and viewed the site.

The record made on the motion reveals the following additional facts: Plaintiff’s home was the first residence built in the subdivision, and although plaintiff did not build his house in the center of the lot it was built in accordance with applicable restrictions. Plaintiff advised defendant that if the defendant’s home were built at the proposed site it would cause a shadowing effect on the solar collectors which would reduce the efficiency of the system and possibly damage the system. To avoid these adverse effects, plaintiff requested defendant to locate his home an additional several feet away from the plaintiff’s lot line, the exact number being disputed. Plaintiff and defendant failed to reach an agreement on the location of defendant’s home before defendant started construction. The Architectural Control Committee of the subdivision and the Planning Commission of the City of Muskego approved the defendant’s plans for his home, including its location on the lot. After such approval, the defendant apparently changed the grade of the property without prior notice to the Architectural Control Committee.2 The problem with defendant’s proposed *227construction, as far as the plaintiff’s interests are concerned, arises from a combination of the grade and the distance of defendant’s home from the defendant’s lot line.

The circuit court denied plaintiff’s motion for injunc-tive relief, declared it would entertain a motion for summary judgment and thereafter entered judgment in favor of the defendant.

1 — 1 HH

The defendant argues that because the circuit court conducted a hearing and considered all material issues of fact, we should consider this case an appeal from a judgment after trial, not as an appeal from a summary judgment. We do not accept the defendant’s characterization of the circuit court’s proceedings.

The circuit court held a hearing to consider plaintiff’s motion for a temporary injunction. A primary consideration on such motion is whether the moving party has a reasonable probability of ultimate success; the ruling on the motion does not resolve the issue of whether the moving party will in fact ultimately succeed in the lawsuit. Werner v. Grootemaat, 80 Wis. 2d 513, 520, 259 N.W.2d 310 (1977). The circuit court denied the motion for a temporary injunction, concluding that there was no reasonable probability that the plaintiff would ultimately succeed and that the plaintiff had not stated a claim upon which relief could be granted. The circuit court ended its memorandum decision on the motion for a temporary injunction with the following comment:

*228“In as much as the court is of the opinion that the plaintiff has failed to state a claim upon which equitable relief can be granted, and the parties having joined issue, the court will entertain a motion by the defendant for summary judgment.”

This statement clearly indicates the intention and expectation of the circuit court to deal with this case on a motion for summary judgment. We therefore consider this as an appeal from a judgment entered on a motion for summary judgment.

In deciding a motion for summary judgment the initial question is the same as that on a sec. 802.06(2), Stats. 1979-80, motion to dismiss the complaint for failure to state a claim upon which relief can be granted, namely, whether the complaint states a claim upon which relief can be granted. Kanack v. Kremski, 96 Wis. 2d 426, 435, 291 N.W.2d 864 (1980) (Abrahamson, J., concurring) . If the complaint states a claim and the pleadings show the existence of factual issues, the court then examines the affidavits and other proof and determines whether there are disputed material facts that entitle the non-moving party to a trial. On summary judgment the court does not decide those issues of fact; it merely decides whether genuine issues of fact exist. Coleman v. Outboard Marine Corp., 92 Wis. 2d 565, 570-71, 285 N.W.2d 631 (1979).

In this case there is some ambiguity whether the judgment was based on the complaint or on factual matters outside the pleadings which were presented to the circuit court in connection with the motion for a temporary injunction. Consequently, we shall first test the sufficiency of the complaint and then determine whether the matters outside the pleadings present disputed material facts sufficient to justify a trial.

*229III.

In testing the sufficiency of the complaint the facts pleaded by the plaintiff, and all reasonable inferences therefrom, are accepted as true. Hartridge v. State Farm Mutual Auto Ins. Co., 86 Wis. 2d 1, 4-5, 271 N.W.2d 598 (1978). The pleadings are to be liberally construed with a view to substantial justice to the parties, sec. 802.02 (6), Stats. 1979-80, and the complaint should be dismissed as legally insufficient only if “it is quite clear that under no circumstances can the plaintiff recover.” Clausen & Lowe, The New Wisconsin Rules of Civil Procedure, Chapters 801-803, 59 Marq. L. Rev 1, 54 (1976), quoted with approval in Morgan v. Pennsylvania General Ins. Co., 87 Wis. 2d 723, 731, 275 N.W.2d 660 (1979).

The plaintiff presents three legal theories to support his claim that the defendant’s continued construction of a home justifies granting him relief: (1) the construction constitutes a common law private nuisance; (2) the construction is prohibited by sec. 844.01, Stats. 1979-80 ;3 *230and (3) the construction interferes with the solar easement plaintiff acquired under the doctrine of prior appropriation.4

As to the claim of private nuisance the circuit court concluded that the law of private nuisance requires the court to make “a comparative evaluation of the conflicting interests and to weigh the gravity of the harm to the plaintiff against the utility of the defendant’s conduct.” The circuit court concluded: “A comparative evaluation of the conflicting interests, keeping in mind the omissions and commissions of both Prah and Maretti, indicates that defendant’s conduct does not cause the gravity of the harm which the plaintiff himself may well have avoided by proper planning.” The circuit court also concluded that sec. 844.01 does not apply to a home constructed in accordance with deed and municipal ordinance requirements. Further, the circuit court rejected the prior appropriation doctrine as “an intrusion of judicial egoism over legislative passivity.”

We consider first whether the complaint states a claim for relief based on common law private nuisance. This state has long recognized that an owner of land does not have an absolute or unlimited right to use the land in a way which injures the rights of others. The rights of neighboring landowners are relative; the uses by one must not unreasonably impair the uses or enjoyment of the other.5 VI-A American Law of Property sec. 28.22, *231pp. 64-65 (1954). When one landowner’s use of his or her property unreasonably interferes with another’s enjoyment of his or her property, that use is said to be a private nuisance. Hoene v. Milwaukee, 17 Wis. 2d 209, 214, 116 N.W.2d 112 (1962); Metzger v. Hochrein, 107 Wis. 267, 269, 83 N.W. 308 (1900). See also Prosser, Law of Torts sec. 89, p. 591 (2d ed. 1971).

The private nuisance doctrine has traditionally been employed in this state to balance the conflicting rights of landowners,6 and this court has recently adopted the analysis of private nuisance set forth in the Restatement (Second) of Torts. CEW Mgmt. Corp. v. First Federal Savings & Loan Association, 88 Wis. 2d 631, 633, 277 N.W.2d 766 (1979). The Restatement defines private nuisance as “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Restate*232ment (Second) of Torts Sec. 821D (1977). The phrase “interest in the private use and enjoyment of land” as used in sec. 821D is broadly defined to include any disturbance of the enjoyment of property. The comment in the Restatement describes the landowner’s interest protected by private nuisance law as follows:

“The phrase ‘interest in the use and enjoyment of land’ is used in this Restatement in a broad sense. It comprehends not only the interests that a person may have in the actual present use of land for residential, agricultural, commercial, industrial and other purposes, but also his interests in having the present use value of the land unimpaired by changes in its physical condition. Thus the destruction of trees on vacant land is as much an invasion of the owner’s interest in its use and enjoyment as is the destruction of crops or flowers that he is growing on the land for his present use. ‘Interest in use and enjoyment’ also comprehends the pleasure, comfort and enjoyment that a person normally derives from the occupancy of land. Freedom from discomfort and annoyance while using land is often as important to a person as freedom from physical interruption with his use or freedom from detrimental change in the physical condition of the land itself.” Restatement (Second) of Torts, Sec. 821D, Comment b, p. 101 (1977).

Although the defendant’s obstruction of the plaintiff’s access to sunlight appears to fall within the Restatement’s broad concept of a private nuisance as a nontres-passory invasion of another’s interest in the private use and enjoyment of land, the defendant asserts that he has a right to develop his property in compliance with statutes, ordinances and private covenants without regard to the effect of such development upon the plaintiff’s access to sunlight. In essence, the defendant is asking this court to hold that the private nuisance doctrine is not applicable in the instant case and that his right to develop his land is a right which is per se superior to his neighbor’s interest in access to sunlight. *233This position is expressed in the maxim “cujus est solum, ejus est usque ad coelum et ad infernos,” that is, the owner of land owns up to the sky and down to the center of the earth. The rights of the surface owner are, however, not unlimited. U.S. v. Causby, 328 U.S. 256, 260-1 (1946). See also 114.03, Stats. 1979-80.

The defendant is not completely correct in asserting that the common law did not protect a landowner’s access to sunlight across adjoining property. At English common law a landowner could acquire a right to receive sunlight across adjoining land by both express agreement and under the judge-made doctrine of “ancient lights.” Under the doctrine of ancient lights if the landowner had received sunlight across adjoining property for a specified period of time,7 the landowner was entitled to continue to receive unobstructed access to sunlight across the adjoining property. Under the doctrine the landowner acquired a negative prescriptive easement and could prevent the adjoining landowner from obstructing access to light.8

Although American courts have not been as receptive to protecting a landowner’s access to sunlight as the English courts, American courts have afforded some protection to a landowner’s interest in access to sunlight. American courts honor express easements to sunlight. American courts initially enforced the English common law doctrine of ancient lights, but later every state which considered the doctrine repudiated it as incon*234sistent with the needs of a developing country. Indeed, for just that reason this court concluded that an easement to light and air over adjacent property could not be created or acquired by prescription and has been unwilling to recognize such an easement by implication. Depner v. United States National Bank, 202 Wis. 405, 408, 232 N.W. 851 (1930) ; Miller v. Hoeschler, 126 Wis. 263, 268-69, 105 N.W. 790 (1905).

Many jurisdictions in this country have protected a landowner from malicious obstruction of access to light (the spite fence cases) under the common law private nuisance doctrine.9 If an activity is motivated by malice it lacks utility and the harm it causes others outweighs any social values. VI-A Law of Property sec. 28.28, p. 79 (1954). This court was reluctant to protect a landowner’s interest in sunlight even against a spite fence, only to be overruled by the legislature. Shortly after this court upheld a landowner’s right to erect a useless and unsightly sixteen-foot spite fence four feet from his neighbor’s windows, Metzger v. Hochrain, 107 N.W. 267, 83 N.W. 308 (1900), the legislature enacted a law specifically defining a spite fence as an actionable private nuisance.10 Thus a landowner’s interest in sunlight has been pro*235tected in this country by common law private nuisance law at least in the narrow context of the modern American rule invalidating spite fences. See, e.g., Sundowner, Inc. v. King, 95 Idaho 367, 509 P.2d 785 (1973) ; Restatement (Second) of Torts, sec. 829 (1977).

This court’s reluctance in the nineteenth and early part of the twentieth century to provide broader protection for a landowner’s access to sunlight was premised on three policy considerations. First, the right of landowners to use their property as they wished, as long as they did not cause physical damage to a neighbor, was jealously guarded. Metzger v. Hochrein, 107 Wis. 267, 272, 83 N.W. 308 (1900).

Second, sunlight was valued only for aesthetic enjoyment or as illumination. Since artificial light could be used for illumination, loss of sunlight was at most a personal annoyance which was given little, if any, weight by society.

Third, society had a significant interest in not restricting or impeding land development. Dillman v. Hoffman, 38 Wis. 559, 574 (1875). This court repeatedly emphasized that in the growth period of the nineteenth and early twentieth centuries change is to be expected and is essential to property and that recognition of a right to sunlight would hinder property development. The court expressed this concept as follows:

“As the city grows, large grounds appurtenant to residences must be cut up to supply more residences. . . . The cistern, the outhouse, the cesspool, and the private drain must disappear in deference to the public waterworks and sewer; the terrace and the garden, to the need for more complete occupancy. . . . Strict limitation [on the recognition of easements of light and air over adjacent premises is] in accord with the popular conception upon which real estate has been and is daily being conveyed in Wisconsin and to be essential to easy and rapid development at least of our municipalities.” Mil*236ler v. Hoeschler, supra, 126 Wis. at 268, 270; quoted with approval in Depner, supra, 202 Wis. at 409.

Considering these three policies, this court concluded that in the absence of an express agreement granting access to sunlight, a landowner’s obstruction of another’s access to sunlight was not actionable. Miller v. Hoeschler, supra, 126 Wis. at 271; Depner v. United States National Bank, supra, 202 Wis. at 410. These three policies are no longer fully accepted or applicable. They reflect factual circumstances and social priorities that are now obsolete.

First, society has increasingly regulated the use of land by the landowner for the general welfare. Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) ; Just v. Marinette, 56 Wis. 2d 7, 201 N.W.2d 761 (1972).

Second, access to sunlight has taken on a new significance in recent years. In this case the plaintiff seeks to protect access to sunlight, not for aesthetic reasons or as a source of illumination but as a source of energy. Access to sunlight as an energy source is of significance both to the landowner who invests in solar collectors and to a society which has an interest in developing alternative sources of energy.11

*237Third, the policy of favoring unhindered private development in an expanding economy is no longer in harmony with the realities of our society. State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974). The need for easy and rapid development is not as great today as it once was, while our perception of the value of sunlight as a source of energy has increased significantly.

Courts should not implement obsolete policies that have lost their vigor over the course of the years. The law of private nuisance is better suited to resolve landowners’ disputes about property development in the 1980’s than is a rigid rule which does not recognize a landowner’s interest in access to sunlight. As we said in Ballstadt v. Pagel, 202 Wis. 484, 489, 232 N.W. 862 (1930), “What is regarded in law as constituting a nuisance in modern times would no doubt have been tolerated without question in former times.” We read State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974), as an endorsement of the application of common law nuisance to situations involving the conflicting interests of landowners and as rejecting per se exclusions to the nuisance law reasonable use doctrine.

In Deetz the court abandoned the rigid common law common enemy rule with respect to surface water and adopted the private nuisance reasonable use rule, namely that the landowner is subject to liability if his or her interference with the flow of surface waters unreasonably invades a neighbor’s interest in the use and enjoyment of land. Restatement (Second) of Torts, sec. 822, 826, 829 (1977). This court concluded that the common enemy rule which served society “well in the days of burgeoning national expansion of the mid-nineteenth and *238early-twentieth centuries” should be abandoned because it was no longer “in harmony with the realities of our society.” Deetz, supra, 66 Wis. 2d at 14-15. We recognized in Deetz that common law rules adapt to changing social values and conditions.12

Yet the defendant would have us ignore the flexible private nuisance law as a means of resolving the dispute between the landowners in this case and would have us adopt an approach, already abandoned in Deetz, of favoring the unrestricted development of land and of applying a rigid and inflexible rule protecting his right to build on his land and disregarding any interest of the plaintiff in the use and enjoyment of his land. This we refuse to do.13

*239Private nuisance law, the law traditionally used to adjudicate conflicts between private landowners, has the flexibility to protect both a landowner’s right of access to sunlight and another landowner’s right to develop land. Private nuisance law is better suited to regulate access to sunlight in modern society and is more in harmony with legislative policy and the prior decisions of this court than is an inflexible doctrine of non-recognition of any interest in access to sunlight across adjoining land.14

*240We therefore hold that private nuisance law, that is, the reasonable use doctrine as set forth in the Restatement, is applicable to the instant case. Recognition of a nuisance claim for unreasonable obstruction of access to sunlight will not prevent land development or unduly hinder the use of adjoining land. It will promote the reasonable use and enjoyment of land in a manner suitable to the 1980’s. That obstruction of access to light might be found to constitute a nuisance in certain circumstances does not mean that it will be or must be found to constitute a nuisance under all circumstances. The result in each case depends on whether the conduct complained of is unreasonable.

Accordingly we hold that the plaintiff in this case has stated a claim under which relief can be granted. Nonetheless we do not determine whether the plaintiff in this case is entitled to relief. In order to be entitled to relief the plaintiff must prove the elements required to establish actionable nuisance, and the conduct of the defendant herein must be judged by the reasonable use doctrine.

IV.

The defendant asserts that even if we hold that the private nuisance doctrine applies to obstruction of access to sunlight across adjoining land, the circuit court’s granting of summary judgment should be affirmed.

Although the memorandum decision of the circuit court in the instant case is unclear, it appears that the circuit court recognized that the common law private nuisance doctrine was applicable but concluded that defendant’s conduct was not unreasonable.15 The circuit court ap*241parently attempted to balance the utility of the defendant’s conduct with the gravity of the harm. Sec. 826, Restatement (Second) of Torts (1977).16 The defendant urges us to accept the circuit court’s balance as adequate. We decline to do so.

*242The circuit court concluded that because the defendant’s proposed house was in conformity with zoning regulations, building codes and deed restrictions, the defendant’s use of the land was reasonable. This court has concluded that a landowner’s compliance with zoning laws does not automatically bar a nuisance claim. Compliance with the law “is not the controlling factor, though it is, of course, entitled to some weight.” Bie v. Ingersoll, 27 Wis. 2d 490, 495, 135 N.W.2d 250 (1965). The circuit court also concluded that the plaintiff could have avoided any harm by locating his own house in a better place. Again, plaintiff’s ability to avoid the harm is a relevant but not a conclusive factor. See secs. 826, 827, 828, Restatement (Second) of Torts (1977).

Furthermore, our examination of the record leads us to conclude that the record does not furnish an adequate basis for the circuit court to apply the proper legal principles on summary judgment. The application of the reasonable use standard in nuisance cases normally requires a full exposition of all underlying facts and circumstances. Too little is known in this case of such matters as the extent of the harm to the plaintiff, the suitability of solar heat in that neighborhood, the availability of remedies to the plaintiff, and the costs to the defendant of avoiding the harm.17 Summary judgment is not an appropriate procedural vehicle in this case when the circuit court must weigh evidence which has not been presented at trial. 6 (Pt. 2) Moore’s Federal Practice, 56.15 [7], pp. 56-638 (1982) ; 10 Wright and Miller, Federal Practice and Procedure — Civil, secs. 2729, 2731 (1973).

Because the plaintiff has stated a claim of common law private nuisance upon which relief can be granted, the judgment of the circuit court must be reversed. We need not, and do not, reach the question of whether the complaint states a claim under sec. 844.01, Stats. 1979-*24380, or under the doctrine of prior appropriation. Attoe v. Madison Professional Policemen’s Assoc., 79 Wis. 2d 199, 205, 255 N.W.2d 489 (1977).

For the reasons set forth, we reverse the judgment of the circuit court dismissing the complaint and remand the matter to circuit court for further proceedings not inconsistent with this opinion.

By the Court. — The judgment of the circuit court is reversed and the cause remanded for proceedings not inconsistent with this opinion.

Ceci, J., took no part.

WILLIAM G. CALLOW, J.

(dissenting). The majority has adopted the Restatement’s reasonable use doctrine to grant an owner of a solar heated home a cause of action against his neighbor who, in acting entirely within the applicable ordinances and statutes, seeks to design and build his home in such a location that it may, at various times during the day, shade the plaintiff’s solar collector, thereby impeding the efficiency of his heating system1 during several months of the year. Because I believe the facts of this case clearly reveal that a cause of action for private nuisance will not lie, I dissent.

The majority arrives at its conclusion that the common law private nuisance doctrine is applicable by analogizing this situation with the spite fence cases which protect a landowner from malicious obstruction of access to light. Supra, at 233-235. See Piccirilli v. Groccia, 114 R.I. 36, 39, 327 A.2d 834, 837, (1974) (plaintiff must prove allegedly objectionable fence was erected solely for the avowed purpose of damaging the abutting neighbor and not for the advantage of the person who constructed the fence) ; Schorck v. Epperson, 74 Wyo. 286, 287-88, 287 P.2d 467 (1955) (doctrine of private nuisance founded *244on maxim that no one should have a legal right to make a malicious use of his property for no benefit to himself but merely to injure another). Accord Daniel v. Birmingham Dental Mfg. Co., 207 Ala. 659, 661, 93 S. 652 (1922); Green v. Schick, 194 Okla. 491, 492, 153 P.2d 821 (1944). See also Comment, Obstruction of Sunlight as a Private Nuisance, 65 Calif. L. Rev. 94, 99-102 (1977) (“the ironclad rule has been that the obstruction of a neighbor’s light and air is not a nuisance if it serves any useful purpose”). Id. at 101 (emphasis in original). Courts have likewise refused to limit interference with television reception and other broadcast signals. The People ex rel. Hoogasian v. Sears, Roebuck and Co., 52 Ill. 2d 301, 305, 287 N.E.2d 677 (1972), cert. denied, 409 U.S. 1001. Clearly, the spite fence cases, as their name implies, require malice which is not claimed in this case.

The majority then concludes that this court’s past reluctance to extend protection to a landowner’s access to sunlight beyond the spite fence cases is based on obsolete policies which have lost their vigor over the course of the years. Supra, at 237. The three obsolete policies cited by the majority are: (1) Right of landowners to use their property as they desire as long as no physical damage is done to a neighbor; (2) In the past, sunlight was valued only for aesthetic value, not a source of energy; and (3) Society has a significant interest in not impeding land development. Supra, at 235. See Comment, Obstruction of Sunlight as a Private Nuisance, supra at 105-12. The majority has failed to convince me that these policies are obsolete.

It is a fundamental principle of law that a “landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.” United States v. Causby, 328 U.S. 256, 264 (1946) ; In Re Honolulu Rapid Transit Co., 54 Hawaii 402, 408, 507 P.2d 755 (1973) ; Granberry v. Jones, et al., 188 Tenn. 51, 54-55, 216 S.W.2d 721 (1949). As stated in *245the frequently cited and followed case of Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So. 2d 357 (Fla. Dist. Ct. App. 1959), cert. denied, 117 So. 2d 842 (Fla. 1960) :

“There being, then, no legal right to the free flow of light and air from the adjoining land, it is universally heid that where a structure serves a useful and beneficial purpose, it does not give rise to a cause of action, either for damages or for an injunction under the maxim sic utere tuo ut alienum non laedas, even though it causes injury to another by cutting off the light and air and interfering with the view that would otherwise be available over adjoining land in its natural state, regardless of the fact that the structure may have been erected partly for spite.” Id. at 359 (emphasis in original).

See Venuto v. Owens-Corning Fiberglas Corp., 22 Cal. App. 3d 116, 127, 99 Cal. Rptr. 350, 357 (1971). I firmly believe that a landowner’s right to use his property within the limits of ordinances, statutes, and restrictions of record where such use is necessary to serve his legitimate needs is a fundamental precept of a free society which this court should strive to uphold.

As one commentator has suggested:

“It is fashionable to dismiss such values as deriving from a bygone era in which people valued development as a ‘goal in itself,’ but current market prices for real estate, and more particularly the premiums paid for land whose zoning permits intensive use, suggest that people still place very high values on such rights.”

Williams, Solar Access and Property Rights: A Maverick Analysis, 11 Conn. L. Rev. 430, 443 (1979) (footnote omitted). Cf. Goble, Solar Access and Property Rights: Reply to a “Maverick” Analysis, 12 Conn. L. Rev. 270 (1980).

The majority cites two zoning cases, Village of Euclid v. Ambler Realty Company, 272 U.S. 365 (1926), and Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 *246(1972), to support the conclusion that society has increasingly regulated private land use in the name of public welfare. Supra, at 236. The cases involving the use of police power and eminent domain are clearly distinguishable from the present situation as they relate to interference with a private right solely for the public health, safety, morals, or welfare. In the instant case, we are dealing with an action which seeks to restrict the defendant’s private right to use his property, notwithstanding a complete lack of notice of restriction to the defendant and the defendant’s compliance with applicable ordinances and statutes. The plaintiff who knew of the potential problem before the defendant acquired the land seeks to impose such use restriction to accommodate his personal, private benefit — a benefit which could have been accommodated by the plaintiff locating his home in a different place on his property or by acquiring the land in question when it was for sale prior to its acquisition by the defendant.

1 know of no cases repudiating policies favoring the right of a landowner to use his property as he lawfully desires or which declare such policies are “no longer fully accepted or applicable” in this context. Supra, at 236.2 The right of a property owner to lawful enjoyment of his property should be vigorously protected, particularly in *247those cases where the adjacent property owner could have insulated himself from the alleged problem by acquiring the land as a defense to the potential problem or by provident use of his own property.

The majority concludes that sunlight has not heretofore been accorded the status of a source of energy, and consequently it has taken on a new significance in recent years. Solar energy for home heating is at this time sparingly used and of questionable economic value because solar collectors are not mass produced, and consequently, they are very costly. Their limited efficiency may explain the lack of production.

Regarding the third policy the majority apparently believes is obsolete (that society has a significant interest in not restricting land development), it cites State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974). I concede the law may be tending to recognize the value of aesthetics over increased volume development and that an individual may not use his land in such a way as to harm the ‘public. The instant case, however, deals with a private benefit. I note that this court in Deetz stated: “The reasonable use rule retains ... a policy of favoring land improvement and development.” Id. at 20. See also id. at 15. Accord Moritz v. Buglewicz, 187 Neb. 819, 194 N.W.2d 215 (1972). I find it significant that community planners are dealing with this country’s continued population growth and building revitalization where “[t]he number of households is expected to reach almost 100 million by the end of the decade; that would be 34 percent higher than the number in 1970.” F. Strom, 1981 Zoning and, Planning Law Handbook, sec. 22.02 [8], 396 (1981). It is clear that community planners are acutely aware of the present housing shortages, particularly among those two groups with limited financial resources, the young and the elderly. Id. While the majority’s policy arguments may be directed to a cause of action for *248public nuisance, we are presented with a private nuisance case which I believe is distinguishable in this regard.3

I would submit that any policy decisions in this area are best left for the legislature. “What is ‘desirable’ or ‘advisable’ or ‘ought to be’ is a question of policy, not a question of fact. What is ‘necessary’ or what is ‘in the best interest’ is not a fact and its determination by the judiciary is an exercise of legislative power when each involves political considerations.” In re City of Beloit, 37 Wis. 2d 637, 644, 155 N.W.2d 633 (1968). See generally Holifield v. Setco Industries, Inc., 42 Wis. 2d 750, 758, 168 N.W.2d 177 (1969) ; Comment, Solar Rights: Guaranteeing a Place in the Sun, 57 Or. L. Rev. 94, 126-27 (1977) (litigation is a slow, costly, and uncertain method of reform). I would concur with these observations of the trial judge: “While temptation lingers for the court to declare by judicial fiat what is right and what should be done, under the facts in this case, such action under our form of constitutional government where the three branches each have their defined jurisdiction and power, would be an intrusion of judicial egoism over legislative passivity.”

*249The legislature has recently acted in this area. Chapter 354, Laws of 1981 (effective May 7, 1982), was enacted to provide the underlying legislation enabling local governments to enact ordinances establishing procedures for guaranteeing access to sunlight. This court’s intrusion into an area where legislative action is being taken is unwarranted, and it may undermine a legislative scheme for orderly development not yet fully operational.

Chapter 354, Laws of 1981, sec. 66.032, provides specific conditions for solar access permits. In part that section provides for impermissible interference with solar collectors within specific limitations:

“66.032 Solar access permits. (1) . . .

“(f) ‘Impermissible interference’ means the blockage of solar energy from a collector surface or proposed collector surface for which a permit has been granted under this section during a collector use period if such blockage is by any structure or vegetation on property, an owner of which was notified under sub. (3)(b). ‘Impermissible interference’ does not include:

“1. Blockage by a narrow protrusion, including but not limited to a pole or wire, which does not substantially interfere with absorption of solar energy by a solar collector.

“2. Blockage by any structure constructed, under construction or for which a building permit has been applied for before the date the last notice is mailed or delivered under sub. (S)(b).

“3. Blockage by any vegetation planted before the date the last notice is mailed or delivered under sub. (3) (b) unless a municipality by ordinance under sub. (2) defines impermissible interference to include such vegetation.” (Emphasis added.)

Sec. 66.032(3) (b) provides for notice:

“ (3) Permit applications.

“(b) An agency shall determine if an application is satisfactorily completed and shall notify the applicant of its determination. If an applicant receives notice that *250an application has been satisfactorily completed, the applicant shall deliver by certified mail or by hand a notice to the owner of any property which the applicant proposes to be restricted by the permit under sub. (7). The applicant shall submit to the agency a copy of a signed receipt for every notice delivered under this paragraph. The agency shall supply the notice form. The information on the form may include, without limitation because of enumeration:

“1. The name and address of the applicant, and the address of the land upon which the solar collector is or will be located.

“2. That an application has been filed by the applicant.

“3. That the permit, if granted, may affect the rights of the notified owner to develop his or her property and to plant vegetation.

“4. The telephone number, address and office hours of the agency.

“5. That any person may request a hearing under sub. (4) within 30 days after receipt of the notice, and the address and procedure for filing the request.” (Emphasis added.)

This legislative scheme would deal with the type of problem presented in the present case and precludes the need for judicial activism in this area.

I examine with interest the definition of nuisance as set out in the Restatement (Second) of Torts and adopted in the majority opinion: “A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Restatement (Second) of Torts sec. 821D (1977) (emphasis added). The majority believes that the defendant’s obstruction of the plaintiff’s access to sunlight falls within the broad definition of “use and enjoyment of land.” Supra, at 230-232. I do not believe the defendant’s “obstruction” of the plaintiff’s access to sunlight falls within the definition of “invasion,” as it applies to the private use and enjoyment of land. Invasion is typically synonymous with *251“entry,” “attack,” “penetration,” “hostile entrance,” “the incoming' or spread of something unusually hurtful.” Webster’s Third International Dictionary, 1188 (1966). Most of the nuisance cases arising under this definition involve noxious odors, smoke, blasting, flooding, or excessive light invading the plaintiff’s right to the use of enjoyment of his property. See Prosser, Law of Torts, sec. 89, 591-92 (4th ed. 1971) .4 See Williams, Solar Access and Property Rights: A Maverick Analysis, 11 Conn. L. Rev. at 441 (there are significant practical differences between dust and noise, on the one hand, and solar access blockage on the other). Clearly, an owner who merely builds his home in compliance with all building code and municipal regulations is not “invading” another’s right to the use and enjoyment of his property. To say so is to acknowledge that all construction may be an “invasion” because all construction has some restrictive impact on adjacent land. A “view,” for example, is modified by any construction simply because it is there.

In order for a nuisance to be actionable in the instant case, the defendant’s conduct must be “intentional and unreasonable.”5 It is impossible for me to accept the majority’s conclusion that Mr. Maretti, in lawfully seeking to construct his home, may be intentionally and unreasonably interfering with the plaintiff’s access to sunlight. In addressing the “unreasonableness” component of the actor’s conduct, it is important to note that *252“ [t] here is liability for a nuisance only to those to whom it causes significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose.” Restatement (Second) of Torts sec. 821F (1979). The comments to the Restatement further reveal that “[if] normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even though the idiosyncracies of the particular plaintiff may make it unendurable to him.” Id. Comment d.6 See Bie v. Ingersoll, 27 Wis. 2d 490, 493, 135 N.W.2d 250(1965) ; Belmar Drive-In Theatre Co. v. The Illinois State Toll Highway Commission et al., 34 Ill. 2d 544, 547-49, 216 N.E.2d 788 (1966).

I conclude that plaintiff’s solar heating system is an unusually sensitive use. In other words, the defendant’s proposed construction of his home, under ordinary circumstances, would not interfere with the use and enjoyment of the usual person’s property. See W. Prosser, supra, sec. 87 at 578-79. “The plaintiff cannot, by devoting his own,land to an unusually sensitive use, such *253as a drive-in motion picture theater easily affected by light, make a nuisance out of conduct of the adjoining defendant which would otherwise be harmless.” Id. at 579 (footnote omitted).7

Looking solely at the defendant’s conduct, the circuit court concluded that the defendant’s construction of a house did not create a cause of action for nuisance because the defendant’s proposed home was in conformity with zoning regulations, building codes, deed restrictions, as well as the fact that the defendant’s use of the land to build his home was reasonable. The majority, however, cites Bie v. Ingersoll, supra, for the proposition that compliance with the law is not the controlling factor in evaluating a nuisance claim. I note that Bie involved the operation of an asphalt plant from which dust and odors permeated the plaintiff’s adjoining residence. The defendants asserted that, because the property occupied by the asphalt plant was zoned for industrial use, the plant could not constitute a nuisance. This court concluded that the zoning classification was not the controlling factor. “It is rather ‘the peculiar nature and the location of the business, not the fact that it is a business, that constitutes the private nuisance.’ ” 27 Wis. 2d at 495. The Bie case is clearly distinguishable from the case at bar. Here, *254the defendant seeks to build his home in compliance with all existing laws, and it will have no “peculiar nature.” As I read the Bie case, the negative implication from its facts is that a business which does not emit dust or odors (i.e., which has no peculiar nature) and which is in conformity with zoning regulations is not a private nuisance. I would hold under the facts of the instant case that the defendant’s conduct is not unreasonable per se, and consequently, a nuisance cause of action cannot stand.

I further believe that the majority’s conclusion that a cause of action exists in this case thwarts the very foundation of property law. Property law encompasses a system of filing and notice in a place for public records to provide prospective purchasers with any limitations on their use of the property. Such a notice is not alleged by the plaintiff. Only as a result of the majority’s decision did Mr. Maretti discover that a legitimate action exists which would require him to defend the design and location of his home against a nuisance suit, notwithstanding the fact that he located and began to build his house within the applicable building, municipal, and deed restrictions.

Obviously, the legislature was cognizant of the importance of notice. In Chapter 354, Laws of 1981, secs. 66.032(5) and (6) deal with notice to an adjoining landowner :

“(5) Permit grant, (a) The agency shall grant a permit if the agency determines that:

“1. The granting of a permit will not unreasonably interfere with the orderly land use and development plans of the municipality;

“2. No person has demonstrated that she or he has present plans to build a structure that would create an impermissible interference by showing that she or he has applied for a building permit prior to receipt of a notice under sub. (3) (b), has expended at least $500 on planning or designing such a structure or by submitting any other credible evidence that she or he has made substan*255tial progress toward planning or constructing a structure that would create an impermissible interference; and

“3. The benefits to the applicant and the public will exceed any burdens.

“ (b) An agency may grant a permit subject to any condition or exemption the agency deems necessary to minimize the possibility that the future development of nearby property will create an impermissible interference or to minimize any other burden on any person affected by granting the permit. Such conditions or exemptions may include but are not limited to restrictions on the location of the collector and requirements for the compensation of persons affected by the granting of the permit.

“(6) Record op permit. If an agency grants a permit:

“(a) The agency shall specify the property restricted by the permit under sub. (7) and shall prepare notice of the granting of the permit. The notice shall include the identification required under s. 706.05(2) (c) for the owner and the property upon which the solar collector is or will be located and for any owner and property restricted by the permit under sub. (7), and shall indicate that the property may not be developed and vegetation may not be planted on the property so as to create an impermissible interference with the solar collector which is the subject of the permit unless the permit affecting the property is terminated under sub. (9) or unless an agreement affecting the property is filed under sub. (10).

“(b) The applicant shall record with the register of deeds of the county in which the property is located the notice under par. (a) for each property specified under par. (a) and for the property upon which the solar collector is or will be located.”

In recognizing this common law cause of action, this court’s decision is in direct conflict with the 1981 legislative provisions for the granting of solar access permits. In a municipality which enacts the ordinance in conformity with the statute, neighbors know their respective rights. Under the majority decision, in a municipality which does not enact the ordinance, a common law cause of action for nuisance exists without any defined rights.

*256I believe the facts of the instant controversy present the classic case of the owner of a solar collector who fails to take any action to protect his investment. There is nothing in the record to indicate that Mr. Prah disclosed his situation to Mr. Maretti prior to Maretti’s purchase of the lot or attempted to secure protection for his solar collector prior to Maretti’s submission of his building plans to the architectural committee. Such inaction should be considered a significant factor in determining whether a cause of action exists.

The majority’s failure to recognize the need for notice may perpetuate a vicious cycle. Maretti may feel compelled to sell his lot because of Prah’s solar collector’s interference with his plans to build his family home. If so, Maretti will not be obliged to inform prospective purchasers of the problem. Certainly, such information will reduce the value of his land. If the presence of collectors is sufficient notice, it cannot be said that the seller of the lot has a duty to disclose information peculiarly within his knowledge. I do not believe that an adjacent lot owner should be obliged to experience the substantial economic loss resulting from the lot being rendered un-buildable by the contour of the land as it relates to the location and design of the adjoining home using solar collectors.8

I am troubled by the majority’s apparent retrospective application of its decision. I note that the court in Deetz saw the wisdom and fairness in rendering a prospective decision. 66 Wis. 2d at 24. Surely, a decision such as this *257should be accorded prospective status. Creating the cause of action after the fact results in such unfair surprise and hardship to property owners such as Maretti.

Because I do not believe that the facts of the present case give rise to a cause of action for private nuisance, I dissent.

The opinion of the Court was delivered by

GARIBALDI, J.

This case presents two issues. The first is whether a restrictive covenant in a deed, providing that the property shall not be used as a supermarket or grocery store, is enforceable against the original covenantor’s successor, a subsequent purchaser *199with actual notice of the covenant. The second is whether an alleged rent-free lease of lands by a public entity to a private corporation for use as a supermarket constitutes a gift of public property in violation of the New Jersey Constitution of 1947, article eight, section three, paragraphs two and three.

I

The facts are not in dispute. Prior to September 1980 plaintiff, Davidson Bros., Inc., along with Irisondra, Inc., a related corporation, owned certain premises located at 263-271 George Street and 30 Morris Street in New Brunswick (the “George Street” property). Plaintiff operated a supermarket on that property for approximately seven to eight months. The store operated at a loss allegedly because of competing business from plaintiff’s other store, located two miles away (the “Elizabeth Street” property). Consequently, plaintiff and Irisondra conveyed, by separate deeds, the George Street property to defendant D. Katz & Sons, Inc., with a restrictive covenant not to operate a supermarket on the premises. Specifically, each deed contained the following covenant:

The lands and premises described herein and conveyed hereby are conveyed subject to the restriction that said lands and premises shall not be used as and for a supermarket or grocery store of a supermarket type, however designated, for a period of forty (40) years from the date of this deed. This restriction shall be a covenant attached to and running with the lands.

The deeds were duly recorded in Middlesex County Clerk’s office on September .10, 1980. According to plaintiff’s complaint, its operation of both stores resulted in losses in both stores. Plaintiff alleges that after the closure of the George Street store, its Elizabeth Street store increased in sales by twenty percent and became profitable. Plaintiff held a leasehold interest in the Elizabeth Street property, which commenced in 1978 for a period of twenty years, plus two renewal terms of five years.

According to defendants New Brunswick Housing Authority (the “Authority”) and City of New Brunswick (the “City”), the *200closure of the George Street store did not benefit the residents of downtown New Brunswick. Defendants allege that many of the residents who lived two blocks away from the George Street store in multi-family and senior-citizen housing units were forced to take public transportation and taxis to the Elizabeth Street store because there were no other markets in downtown New Brunswick, save for two high-priced convenience stores.

The residents requested the aid of the City and the Authority in attracting a new food retailer to this urban-renewal area. For six years, those efforts were unsuccessful. Finally, in 1986, an executive of C-Town, a division of a supermarket chain, approached representatives of New Brunswick about securing financial help from the City to build a supermarket.

Despite its actual notice of the covenant the Authority, on October 23, 1986, purchased the George Street property from Katz for $450,000, and agreed to lease from Katz at an annual net rent of $19,800.00, the adjacent land at 263-265 George Street for use as a parking lot. The Authority invited proposals for the lease of the property to use as a supermarket. C-Town was the only party to submit a proposal at a public auction. The proposal provided for an aggregate rent of one dollar per year during the five-year lease term with an agreement to make $10,000 in improvements to the exterior of the building and land. The Authority accepted the proposal in 1987. All the defendants in this case had actual notice of the restrictions contained in the deed and of plaintiffs intent to enforce the same. Not only were the deeds recorded but the contract of sale between Katz and the Housing Authority specifically referred to the restrictive covenant and the pending action.

Plaintiff filed this action in the Chancery Division against defendants D. Katz & Sons, Inc., the City of New Brunswick, and C-Town. The first count of the complaint requested a declaratory judgment that the noncompetition covenant was *201binding on all subsequent owners of the George Street property. The second count requested an injunction against defendant City of New Brunswick from leasing the George Street property on any basis that would constitute a gift to a private party in violation of the state constitution. Both counts sought compensatory and punitive damages. That complaint was then amended to include defendant the New Brunswick Housing Authority.

Plaintiff moved for summary judgment, to which defendants responded by submitting three affidavits, one from Agnes Scott, President of the New Brunswick Home Tenants Council; one from Richard M. Keefe, Executive Director of the Housing and Urban Development Authority of New Brunswick; and one from Frank R. Nero, Director of the Department of Policy and Economic Development for New Brunswick, all alleging the need for a supermarket in the area of George Street.

The trial court denied plaintiff’s motion and held, in an unreported opinion, that the covenant was unenforceable, relying on Brewer v. Marshall & Cheeseman, 19 N.J.Eq. 537 (E. & A.1868). That case held that the burden of a covenant will not run with the land and therefore bind a successor unless the covenant “affects the physical use of the land itself.” This view “effectively stifles any possibility of covenants relating to competition,” 5 R. Powell & P. Rohan, Powell on Real Property § 675[3], 60-108 (rev. ed. 1989). (5 Powell). Although the Brewer decision was an old case, (1868), the trial court was satisfied that it was still controlling and found that the covenant was unenforceable because it did not “touch and concern” the land. Additionally, the trial court noted that the enforcement of non-competition covenants is contrary to a longstanding public policy. However, the trial court observed that the determination of whether the covenant was reasonable and consistent with public policy would require a factual hearing and could not be made in a motion for summary judgment.

*202The trial court also held that the rent-free lease between the Authority and C-Town did not violate the New Jersey Constitution of 1947, article eight, section three, paragraphs two and three. The court found that the lease was valid inasmuch as it furthered a “public purpose” as defined by a two-part test set forth in Roe v. Kervick, 42 N.J. 191, 207, 199 A.2d 834 (1964).

After the court denied plaintiff’s motion for summary judgment, defendants moved for summary judgment, which was granted. Plaintiff appealed, and in an unreported opinion, the Appellate Division affirmed the trial court’s judgment. For purposes of its decision the Appellate Division assumed that Brewer was not applicable, that noncompetitive covenants may run with the land in appropriate cases, that a leasehold interest in land is a sufficient interest to enforce a covenant, that two miles between the burdened and benefitted properties does not itself prevent a covenant from being enforced, and that the George Street store would impair the profitability of the Elizabeth Street store. Although the Appellate Division found “some merit” to plaintiff’s argument that Brewer v. Marshall, supra, 19 N.J.Eq. 537, no longer represented the current law in New Jersey, the court held that the covenant was unenforceable against a subsequent grantee because the benefit did not “touch and concern” plaintiff’s Elizabeth Street property. Specifically, the court reasoned that because the covenant restricted such a comparatively small portion of the market area, less than one-half an acre, and did not impair the use of the other 2,000 acres in the market circle from which the Elizabeth store draws its clientele, the covenant did not enhance the value of the retained estate, and therefore, as a matter of law, would not bind a subsequent purchaser. In contrast to the trial court’s decision, the Appellate Division's rationale was premised on the failure of the benefit of the covenant to run, not of the burden.

The Appellate Division also affirmed the trial court’s judgment that the rent-free lease was constitutionally valid, substantially for the reasons expressed by the trial court.

*203We granted plaintiffs petition for certification. 113 N.J. 655, 552 A.2d 177 (1988).

II

A. Genesis and Development of Covenants Regarding the Use of Property

Covenants regarding property uses have historical roots in the courts of both law and equity. The English common-law courts first dealt with the issue in Spencer’s Case, 5 Co. 16a, 77 Eng.Rep. 72 (Q.B.1583). The court established two criteria for the enforcement of covenants against successors. First, the original covenanting parties must intend that the covenant run with the land. Second, the covenant must “touch and concern” the land. Id. at 16b, 77 Eng.Rep. at 74. The court explained the concept of “touch and concern” in this manner:

But although the covenant be for him [an original party to the promise] and his assigns, yet if the thing to be done be merely collateral to the land, and doth not touch and concern the thing demised in any sort, there the assignee shall not be charged. As if the lessee covenants for him and his assignees to build a house upon the land of the lessor which is no parcel of the demise, or to pay any collateral sum to the lessor, or to a stranger, it shall not bind the assignee, because it is merely collateral, and in no manner touches or concerns the thing that was demised, or that is assigned over, and therefore in such case the assignee of the thing demised cannot be charged with it, no more than any other stranger. [Ibid.]

The English common-law courts also developed additional requirements of horizontal privity (succession of estate), vertical privity (a landlord-tenant relationship), and that the covenant have “proper form,” in order for the covenant to run with the land. C. Clark, Real Covenants and Other Interests Which Run With the Land 94, 95 (2d ed. 1947) (Real Covenants ). Those technical requirements made it difficult, if not impossible, to protect property through the creation of real covenants. Commentary, “Real Covenants in Restraint of Trade — When Do They Run With the Land?,” 20 Ala.L.Rev. 114, 115 (1967).

*204To mitigate and to eliminate many of the formalities and privity rules formulated by the common-law courts, the English chancery courts in Tulk v. Moxhay, 2 Phil. 774, 41 Eng.Rep. 1143 (Ch. 1848), created the doctrine of equitable servitudes. In Tulk, land was conveyed subject to an agreement that it would be kept open and maintained for park use. A subsequent grantee, with notice of the restriction, acquired the park. The court held that it would be unfair for the original covenantor to rid himself of the burden to maintain the park by simply selling the land. In enjoining the new owner from violating the agreement, the court stated:

It is said that, the covenant being one which does not run with the land, this court cannot enforce it, but the question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased. Of course, the price would be affected by the covenant, and nothing could be more inequitable than that the original purchaser should be able to sell the property the next day for a greater price, in consideration of the assignee being allowed to escape from the liability which he had himself undertaken.

[Id. at 777-78, 41 Eng.Rep. 1144],

The court thus enforced the covenant on the basis that the successor had purchased the property with notice of the restriction. Adequate notice obliterated any express requirement of “touch and concern.” Reichman, “Toward a Unified Concept of Servitudes,” 55 S.Cal.L.Rev. 1177, 1225 (1982); French, “Toward a Modern Law of Servitudes: Reweaving Ancient Strands,” 55 S.Cal.L.Rev. 1261, 1276-77 (1982). But see Burger, “A Policy Analysis of Promises Respecting the Use of Land,” 55 Minn.L.Rev. 167, 217 (1970) (focusing on language in Tulk that refers to “use of land” and “attached to property” as implied recognition of “touch and concern” rule).

Some early commentators theorized that the omission of the technical elements of property law such as the “touch and concern” requirement indicated that Tulk was based on a contractual as opposed to a property theory. C. Clark, supra, Real Covenants, at 171-72 nn. 3 and 4; 3 H. Tiffany, Real Property § 861, at 489 (3d ed. 1939); Ames, “Specific Perform*205anee For and Against Strangers to Contract,” 17 Harv.L.Rev. 174, 177-79 (1904); Stone, “The Equitable Rights and Liabilities of Strangers to the Contract,” 18 Colum.L.Rev. 291, 294-95 (1918). Others contend that “touch and concern” is always, at the very least, an implicit element in any analysis regarding enforcement of covenants because “any restrictive easement necessitates some relation between the restriction and the land itself.” MeLoone, “Equitable Servitudes — A Recent Case and Its Implications for the Enforcement of Covenants Not to Compete,” 9 Ariz.L.Rev. 441, 444, 447 n. 5 (1968). Still others explain the “touch and concern” omission on the theory that equitable servitudes usually involve negative covenants or promises on how the land should not be used. Thus, because those covenants typically do touch and concern the land, the equity courts did not feel the necessity to state “touch and concern” as a separate requirement. Berger, “Integration of the Law of Easements, Real Covenants and Equitable Servitudes,” 43 Wash. & Lee L.Rev., 337, 362 (1986). Whatever the explanation, the law of equitable servitudes did generally continue to diminish or omit the “touch and concern” requirement.

B. New Jersey’s treatment of noncompetitive covenants restraining the use of property

Our inquiry of New Jersey law on restrictive property use covenants commences with a re-examination of the rule set forth in Brewer v. Marshall & Cheeseman, supra, 19 N.J.Eq. at 537, that a covenant will not run with the land unless it affects the physical use of the land. Hence, the burden side of a noncompetition covenant is personal to the covenantor and is, therefore, not enforceable against a purchaser. In Brewer v. Marshall & Cheeseman, the court objected to all noncompetition covenants on the basis of public policy and refused to consider them in the context of the doctrine of equitable servitudes. Similarly, in National Union Bank at Dover v. Segur, 39 N.J.L. 173 (Sup.Ct.1877), the court held that only the benefit of a noncompetition covenant would run with the land, but the burden would be personal to the covenantor. See 5 R. Powell, *206supra, § 675[3] at 60-109. Because the burden of a noncom-petition covenant is deemed to be personal in these cases, enforcement would be possible only against the original covenantor. As soon as the covenantor sold the property, the burden would cease to exist.

Brewer and National Union Bank have been subsequently interpreted as embodying the “unnecessarily strict” position that “while the benefit of [a noncompetition covenant] will run with the land, the burden of the covenant is necessarily personal to the covenantor.” 5 Powell, supra, § 675[3] at 60-109. This blanket prohibition of noncompetition covenants has been ignored in more recent decisions that have allowed the burden of a noncompetition covenant to run, see Renee Cleaners Inc. v. Good Deal Supermarkets of N.J., 89 N.J.Super. 186, 214 A.2d 437 (App.Div.1965) (enforcing at law covenant not to lease property for dry-cleaning business as against subsequent purchaser of land); Alexander’s v. Arnold Constable Corp., 105 N.J.Super. 14, 28, 250 A.2d 792 (Ch.1969) (enforcing promise entered into by prior holders of land not to operate department store as against current landowner). Nonetheless, Brewer may still retain some vitality, as evidenced by the trial court’s reliance on it in this case.

The per se prohibition that noncompetition covenants regarding the use of property do not run with the land is not supported by modern real-covenant law, and indeed, appears to have support only in the Restatement of Property section on the running of real covenants, § 537 comment f. 5 Powell, supra, at § 675[3] at 60-109. Specifically, that approach is rejected in the Restatement’s section on equitable servitudes, see Restatement of Property, § 539 comment k (1944); see also Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 95-96, 390 N.E.2d 243, 249 (1979) (overruling similarly strict approach inasmuch as it was “anachronistic” compared to modern judicial analysis of noncompetition covenants, which focuses on effects of covenant).

*207Commentators also consider the Brewer rule an anachronism and in need of change, as do we. 5 Powell, supra, ¶ 678 at 192. Accordingly, to the extent that Brewer holds that a noncompetition covenant will not run with the land, it is overruled.

Plaintiff also argues that the “touch and concern” test likewise should be eliminated in determining the enforceability of fully negotiated contracts, in favor of a simpler “reasonableness” standard that has been adopted in most jurisdictions. That argument has some support from commentators, see, e.g., Epstein, “Notice and Freedom of Contract in the Law of Servitudes,” 55 S.Cal.L.Rev. 1353, 1359-61 (1982) (contending that “touch and concern” complicates the basic analysis and limits the effectiveness of law of servitudes), including a reporter for the Restatement (Third) of Property, see French, “Servitudes Reform and the New Restatement of Property: Creation Doctrines and Structural Simplification,” 73 Cornell L.Rev. 928, 939 (1988) (arguing that “touch and concern” rule should be completely eliminated and that the law should instead directly tackle the “running” issue on public-policy grounds).

New Jersey courts, however, continue to focus on the “touch and concern” requirement as the pivotal inquiry in ascertaining whether a covenant runs with the land. Under New Jersey law, a covenant that “exercise[s] [a] direct influence on the occupation, use or enjoyment of the premises” satisfies the “touch and concern” rule. Caullett v. Stanley Stilwell & Sons, Inc., 67 N.J.Super. 111, 116, 170 A.2d 52 (App.Div.1961). The covenant must touch and concern both the burdened and the benefitted property in order to run with the land. Ibid.; Hayes v. Waverly & Passaic R.R., 51 N.J.Eq. 3, 27 A. 648 (Ch. 1893). Because the law frowns on the placing of restrictions on the freedom of alienation of land, New Jersey courts will enforce a covenant only if it produces a countervailing benefit to justify the burden. Restatement of Property *208§ 543, comment c (1944); Reichman, supra, 55 S.Cal.L.Rev. at 1229.

Unlike New Jersey, which has continued to rely on the “touch and concern” requirement, most other jurisdictions have omitted “touch and concern” from their analysis and have focused instead on whether the covenant is reasonable. See, e.g., Doo v. Packwood, 265 Cal.App.2d 752, 71 Cal.Rptr. 477 (1968) (covenant not to sell groceries on property conveyed); Natural Prods. Co. v. Dolese & Shepard Co., 309 Ill. 230, 140 N.E. 840 (1923) (covenant not to sell stone on property conveyed); Coomes v. Aero Theatre & Shopping Center, 207 Md. 432, 114 A.2d 631 (1955) (covenant not to compete with shopping center); Raney v. Tompkins, 197 Md. 98, 78 A.2d 183 (1951) (covenant not to compete with gas station); Sun Oil Co. v. Trent Auto Wash, Inc., 379 Mich. 182, 150 N.W.2d 818 (1967) (covenant not to use retained land as gas station); Kerrick v. Schoenberg, 328 S.W.2d 595 (Mo.1959) (covenant not to use retained land for gasoline station); Hall v. American Oil Co., 504 S.W.2d 313 (Mo.Ct.App.1973) (covenant not to use land for gasoline station); Johnson v. Shaw, 101 N.H. 182, 137 A.2d 399 (1957) (covenant not to use land for gasoline stations or overnight cabins); Quadro Stations Inc. v. Gilley, 7 N.C.App. 227, 172 S.E.2d 237 (1970) (covenant not to use land for sale of petroleum products); Gillen-Crow Pharmacies, Inc. v. Mandzak, 5 Ohio St.2d 201, 215 N.E.2d 377 (1966) (covenant not to sell drugs or prescriptions on premises); Hodge v. Sloan, 107 N.Y. 244, 17 N.E. 335 (1887) (covenant not to sell sand on property conveyed); Hercules Powder Co. v. Continental Can Co., 196 Va. 935, 86 S.E.2d 128 (1955) (covenant not to engage in manufacture of pulp on property conveyed); Carneal v. Kendig, 196 Va. 605, 85 S.E.2d 235 (1955) (covenant not to use land for moving-picture business); Oliver v. Hewitt, 191 Va. 163, 60 S.E.2d 1 (1950) (covenant not to sell groceries and soft drinks on land conveyed); Colby v. McLaughlin, 50 Wash.2d 152, 310 P.2d 527 (1957) (covenant not to sell drugs, beer, or ice cream on land conveyed); see also McLoone, supra, 9 Ariz.L.Rev. at 442 n. 3 *209(noting that “great majority” of jurisdictions enforce as equitable servitude both benefit and burden of covenant not to compete on mere principles of notice).

Even the majority of courts that have retained the “touch and concern” test have found that noncompetition covenants meet the test’s requirements. See, e.g., Dick v. Sears-Roebuck & Co., 115 Conn. 122, 160 A. 432 (1932) (holding “touch and concern” element satisfied where noncompetition covenants restrained “use to which the land may be put in the future as well as in the present, and which might very likely affect its value”); Singer v. Wong, 35 Conn.Supp. 640, 404 A.2d 124 (1978) (restrictive covenant in deed providing that premises not be used as shopping center “touched and concerned” land because it materially affected value of land); Rosen v. Wolff, 152 Ga. 578, 110 S.E. 877 (1922) (“touch and concern” rule satisfied where noncompetition covenant affected nature, quality, value, or mode of enjoyment of demised premises); Whitinsville Plaza, Inc. v. Kotseas, supra, 378 Mass. 85, 390 N.E.2d 243 (noncompetition covenant satisfied “touch and concern” rule within the ordinary sense and meaning of the phrase”); Gonzales v. Reynolds, 34 N.M. 35, 275 P. 922 (1929) (noncompetition covenant satisfied “touch and concern” requirement by affecting use or value of it). But see Savings Bank v. City of Blytheville, 240 Ark. 558, 401 S.W.2d 26 (1966) (anticompetitive agreement increased value of land only indirectly therefore did not “touch and concern”); Kettle River R. Co. v. Eastern Ry. Co., 41 Minn. 461, 43 N.W. 469 (1889) (covenant that denied access to other railroads did not “touch and concern” land inasmuch as it was not a “privilege affecting the land” of either party to covenant). See generally McLoone, supra, 9 Ariz.L.Rev. at 448 n. 28 (listing cases that recognize that a covenant not to use land competitively meets the “touch and concern” test, notwithstanding diverse definitions of “touch and concern”).

The “touch and concern” test has, thus, ceased to be, in most jurisdictions, intricate and confounding. Courts have decided *210as an initial matter that covenants not to compete do touch and concern the land. The courts then have examined explicitly the more important question of whether covenants are reasonable enough to warrant enforcement. The time has come to cut the gordian knot that binds this state’s jurisprudence regarding covenants running with the land. Rigid adherence to the “touch and concern” test as a means of determining the enforceability of a restrictive covenant is not warranted. Reasonableness, not esoteric concepts of property law, should be the guiding inquiry into the validity of covenants at law. We do not abandon the “touch and concern” test, but rather hold that the test is but one of the factors a court should consider in determining the reasonableness of the covenant.

A “reasonableness” test allows a court to consider the enforceability of a covenant in view of the realities of today’s commercial world and not in the light of out-moded theories developed in a vastly different commercial environment. Originally strict adherence to “touch and concern” rule in the old English common-law cases and in Brewer, was to effectuate the then pervasive public policy of restricting many, if not all, encumbrances of the land. Courts today recognize that it is not unreasonable for parties in commercial-property transactions to protect themselves from competition by executing noncompetition covenants. Businesspersons, either as lessees or purchasers may be hesitant to invest substantial sums if they have no minimal protection from a competitor starting a business in the near vicinity. Hence, rather than limiting trade, in some instances, restrictive covenants may increase business activity.

We recognize that “reasonableness” is necessarily a fact sensitive issue involving an inquiry into present business conditions and other factors specific to the covenant at issue. Nonetheless, as do most of the jurisdictions, we find that it is a better test for governing commercial transactions than are obscure anachronisms that have little meaning in today’s commercial world. The pivotal inquiry, therefore, becomes what *211factors should a court consider in determining whether such a covenant is “reasonable” and hence enforceable. We conclude that the following factors should be considered:

1. The intention of the parties when the covenant was executed, and whether the parties had a viable purpose which did not at the time interfere with existing commercial laws, such as antitrust laws, or public policy.

2. Whether the covenant had an impact on the considerations exchanged when the covenant was originally executed. This may provide a measure of the value to the parties of the covenant at the time.

3. Whether the covenant clearly and expressly sets forth the restrictions.

4. Whether the covenant was in writing, recorded, and if so, whether the subsequent grantee had actual notice of the covenant.

5. Whether the covenant is reasonable concerning area, time or duration. Covenants that extend for perpetuity or beyond the terms of a lease may often be unreasonable. Alexander’s v. Arnold Constable, 105 N.J.Super. 14, 27, 250 A.2d 792 (Ch.Div.1969); Cragmere Holding Corp. v. Socony Mobile Oil Co., 65 N.J.Super. 322, 167 A.2d 825 (App.Div.1961).

6. Whether the covenant imposes an unreasonable restraint on trade or secures a monopoly for the covenantor. This may be the case in areas where there is limited space available to conduct certain business activities and a covenant not to compete burdens all or most available locales to prevent them from competing in such an activity. Doo v. Packwood, 265 Cal.App.2d 752, 71 Cal.Rptr. 477 (1968); Kettle River R. v. Eastern Ry. Co., 41 Minn. 461, 43 N.W. 469 (1889).

7. Whether the covenant interferes with the public interest. Natural Prods. Co. v. Dolese & Shepard Co., 309 Ill. 230, 140 N.E. 840 (1923).

*2128. Whether, even if the covenant was reasonable at the time it was executed, “changed circumstances” now make the covenant unreasonable. Welitoff v. Kohl, 105 N.J.Eq. 181, 147 A. 390 (1929).

In applying the “reasonableness” factors, trial courts may find useful the analogous standards we have adopted in determining the validity of employee covenants not to compete after termination of employment. Although enforcement of such a covenant is somewhat restricted because of countervailing policy considerations, we generally enforce an employee non-competition covenant as reasonable if it “simply protects the legitimate interests of the employer imposes no undue hardship on the employee, and is not injurious to the public.” Solari Indus. v. Malady, 55 N.J. 571, 576, 264 A.2d 53 (1970). We also held in Solan that if such a covenant is found to be overbroad, it may be partially enforced to the extent reasonable under the circumstances. Id. at 585, 264 A.2d 53. That approach to the enforcement of restrictive covenants in deeds offers a mechanism for recognizing and balancing the legitimate concerns of the grant- or, the successors in interest, and the public.

The concurrence maintains that the initial validity of the covenant is a question of contract law while its subsequent enforceability is one of property law. Post at 221, 579 A.2d at 300. The result is that the concurrence uses reasonableness factors in construing the validity of the covenant between the original covenantors, but as to successors-in-interest, claims to adhere strictly to a “touch and concern” test. Post at 222, 579 A.2d at 301. Such strict adherence to a “touch and concern” analysis turns a blind eye to whether a covenant has become unreasonable over time. Indeed many past illogical and contorted applications of the “touch and concern” rules have resulted because courts have been pressed to twist the rules of “touch and concern” in order to achieve a result that comports with public policy and a free market. Most jurisdictions acknowledge the reasonableness factors that affect enforcement of a covenant concerning successors-in-interest, instead of en*213gaging in the subterfuge of twisting the touch and concern test to meet the required result. New Jersey should not remain part of the small minority of States that cling to an anachronistic rule of law. Supra at 210, 579 A.2d at 295.

There is insufficient evidence in this record to determine whether the covenant is reasonable. Nevertheless, we think it instructive to comment briefly on the application of the “reasonableness” factors to this covenant. We consider first the intent of the parties when the covenant was executed. It is undisputed that when plaintiff conveyed the property to Katz, it intend-. ed that the George Street store would not be used as a supermarket or grocery store for a period of forty years to protect his existing business at the Elizabeth Street store from competition. Plaintiff alleges that the purchase price negotiated between it and Katz took into account the value of the restrictive covenant and that Katz paid less for the property because of the restriction. There is no evidence, however, of the purchase price. It is also undisputed that the covenant was expressly set forth in a recorded deed, that the Authority took title to the premises with actual notice of the restrictive covenant, and, indeed, that all the defendants, including C-Town, had actual notice of the covenant.

The parties do not specifically contest the reasonableness of either the duration or area of the covenant. Aspects of the “touch and concern” test also remain useful in evaluating the reasonableness of a covenant, insofar as it aids the courts in differentiating between promises that were intended to bind only the individual parties to a land conveyance and promises affecting the use and value of the land that was intended to be passed on to subsequent parties. Covenants not to compete typically do touch and concern the land. In noncompetition cases, the “burden” factor of the “touch and concern” test is easily satisfied regardless of the definition chosen because the covenant restricts the actual use of the land. Berger, supra, 52 Wash.L.Rev. at 872. The Appellate Division properly con-*214eluded that the George Street store was burdened. However, we disagree with the Appellate Division’s conclusion that in view of the covenant’s speculative impact, the covenant did not provide a sufficient “benefit” to the Elizabeth Street property because it burdened only a small portion (George Street store) of the “market circle” (less than one-half acre in a market circle of 2000 acres).

The size of the burdened property relative to the market area is not a probative measure of whether the Elizabeth store was benefitted. Presumably, the use of the Elizabeth Street store as a supermarket would be enhanced if competition were lessened in its market area. If plaintiff’s allegations that the profits of the Elizabeth Street store increased after the sale of the George Street store are true, this would be evidence that a benefit was “conveyed” on the Elizabeth Street store. Likewise, information that the area was so densely populated, that the George Street property was the only unique property available for a supermarket, would show that the Elizabeth Street store property was benefitted by the covenant. In this connection the C-Town executive in his deposition noted that the George Street store location “businesswise was promising because there’s no other store in town.” Such evidence, however, also should be considered in determining the “reasonableness” of the area covered by the covenant and whether the covenant unduly restrained trade.

Defendants’ primary contention is that 'due to the circumstances of the neighborhood and more particularly the circumstances of the people of the neighborhood, plaintiff’s covenant interferes with the public’s interest. Whether that claim is essentially that the community has changed since the covenant was enacted or that the circumstances were such that when the covenant was enacted, .it interfered with the public interest, we are unable to ascertain from the record. “Public interest” and “changed circumstances” arguments are extremely fact-sensitive. The only evidence that addresses those issues, the three *215affidavits of Mr. Keefe, Mr. Nero and Ms. Scott, are insufficient to support any finding with respect to those arguments.

The fact-sensitive nature of a “reasonableness” analysis make resolution of this dispute through summary judgment inappropriate. We therefore remand the case to the trial court for a thorough analysis of the “reasonableness” factors delineated herein.

The trial court must first determine whether the covenant was reasonable at the time it was enacted. If it was reasonable then, but now adversely affects commercial development and the public welfare of the people of New Brunswick, the trial court may consider whether allowing damages for breach of the covenant is an appropriate remedy. C-Town could then continue to operate but Davidson would get damages for the value of his covenant. On the limited record before us, however, it is impossible to make a determination concerning either reasonableness of the covenant or whether damages, injunctive relief, or any relief is appropriate.

In sum, we reject the trial court’s conclusion because it depends largely on the continued vitality of Brewer, which we hereby overrule. Supra at 201-202, 579 A.2d at 290-291. Likewise, we reject the Appellate Division’s reliance on the “touch and concern” test. Instead, the proper test to determine the enforceability of a restricted noncompetition covenant in a commercial land transaction is a test of “reasonableness,” an approach adopted by a majority of the jurisdictions.

Ill

The other issue before us concerns whether the lease granted by the Housing Authority to C-Town constitutes an impermissible gift of public property in violation of the State Constitution. The five-year term lease was conditioned on the operation of a full-service supermarket in exchange for one dollar a year and ten thousand dollars in improvements to the property.

*216The New Jersey Constitution of 1947, article eight, section three, paragraphs two and three provides:

2. No county, city, borough, town, township or village shall hereafter give any money or property, or loan its money or credit, to or in aid of any individual, association or corporation, or become security for, or be directly or indirectly the owner of, any stock or bonds of any association or corporation.

3. No donation of land or appropriation of money shall be made by the State or any county or municipal corporation to or for the use of any society, association or corporation whatever.

Those provisions, which prohibit donations of public funds for private use, were taken from the 1844 Constitution, as amended in 1875. Hill v. Summit, 64 N.J.Super. 522, 166 A.2d 610 (Law Div.1960). They were precipitated by a number of abusive practices that occurred during the nineteenth century when railroads and other private corporations were provided direct public assistance to the serious detriment of the taxpayers under the guise of “encouraging development.” Roe v. Kervick, supra, 42 N.J. at 206, 199 A.2d 834. The provisions were intended to signal “the retreat to a fundamental doctrine of government, i.e., that public money should be raised and used only for public purposes.” Id. at 207, 199 A.2d 834.

In Roe v. Kervick, supra, 42 N.J. at 191, 199 A.2d 834, we established the tests to ascertain whether a public entity’s action in lending funds to private entities is violative of the constitutional provisions. In Roe we held that where a governmental entity contracts with a private entity in order to carry out a traditional public-government function, and where the contractual relationship is such that the governmental entity, as a practical matter, completely controls the private entity’s actions in performing that public service, the fact that the private entity also derives an incidental benefit or profit will not invalidate the agreement.

The issue in Roe was whether the New Jersey State Area Redevelopment Assistance Act (Redevelopment Act), which authorized government loans to finance private for-profit redevel*217opment projects aimed at providing job opportunities in economically distressed areas in New Jersey was constitutional under N.J. Constitution of 1947, article eight, section 3, paragraphs two and three. To decide this case, the Court posed the following two questions:

(1) Is legislative provision for financial aid to relieve unemployment a public purpose, and (2) if so, is the method of relief provided in this instance so consonant with the accomplishment of that public purpose as to be beyond the limitations on the use of public money laid down by Article VIII of the Constitution?

[42 N.J. at 212, 199 A.2d 834].

In answering the first question, the Court established a two-part test to define the concept of public purpose. The activity must be one that “serves a benefit to the community as a whole, and which, at the same time is directly related to the function of government.” Id. at 207, 199 A.2d 834. The Court recognized however that the concept of a public purpose “cannot be static in its implications,” and that

[t]o be serviceable it must expand when necessary to encompass changing public needs of a modern dynamic society. Thus it is incapable of exact or perduring definition. In each instance where the test is to be applied the decision must be reached with reference to the object sought to be accomplished and to the degree and manner in which the object affects the public welfare.

[Ibid. (citations omitted).]

After a detailed examination of the design and scheme of the Redevelopment Act, the Court first concluded that the purpose to “relieve substantial and persistent unemployment” in distressed areas of New Jersey constituted a “public purpose.” It benefitted the public and was directly related to the function of government. The Court then addressed whether the means of relief was so consonant with the purpose of the statute to be within the constitutional limits imposed by Article VIII of the Constitution. Again, after a detailed examination of the Redevelopment Act, the Court concluded that the scope and public purpose of the agency’s agreed undertaking was clearly delineated and so circumscribed by the federal and state acts, that

by virtue of the contract, the private operator is so closely identified with accomplishment of the public purpose, and his business activity is so strictly *218pointed in that direction, that for practical purposes he represents the controlled means by which the government accomplished a proper objective.

[Ibid. at 219, 199 A.2d 834].

The Court’s language in Roe is instructive of the strict standards that public entities must meet if their expenditures are to be deemed constitutional under Article eight, section three, paragraphs two and three:

When the character of the contract is studied in light of the scope and restrictions of the federal and State laws, the fact becomes evidence that although the agency establishing the project is a private one, it is so circumscribed in its operation as to be considered in a sense a controlled instrumentality with respect to its use of the limited public financial assistance. Obviously the funds of the State or a county or municipality could not be loaned to a private agency to be used as the agency pleased. Clearly the Constitution would stand in the way. But when the loan is granted for an obvious public purpose and its use confined to the execution of that purpose through a reasonable measure of control by a public authority by means of contractual stipulation, statutory and administrative regulation, the private agency takes on the form of a special public agent for the paramount purpose of devoting the money to relief of unemployment.

[Id. at 222, 199 A.2d 834 (citations omitted).]

The present situation is not totally analogous to that in Roe. In that case, the public purpose clearly was set forth in the statute itself and directly related to a function of government. The acquisition of land to facilitate the operation of a supermarket is not a traditional governmental function. Yet, there may be ways to justify this kind of government involvement or subsidy. In N.J. Housing & Mortgage Fin. Agency v. Moses, 215 N.J.Super. 318, 324, 521 A.2d 1307 (App.Div.1987), the court decided that the exercise of eminent domain for the purpose of constructing a shopping center was justifiable. A shopping center would, the court determined, enhance the livability of publicly financed residential properties in the area by providing food and other services to the residents of those properties. Likewise, there may be a legitimate government purpose involved in the operation of C-Town in this context.

The record in this case is not sufficient to establish that the operation of this supermarket constitutes such a purpose. The evidence consists solely of three conclusory and vague affida*219vits. The affidavits state in very general terms that there is need for a supermarket for some unspecified number of low and middle-income residents who presumably do not drive and must take taxicabs or public transportation to the Elizabeth Street store two miles away, or shop at nearer but more expensive convenience stores. There is a need for more documentation of these assertions.

Accordingly, we find that there is insufficient evidence on this record to establish that the purchase, lease, and operation of the George Street property as a supermarket constituted a “public purpose” under the Roe standard. Likewise, we find that there are insufficient facts to support a conclusion that the Authority’s means of accomplishing the public purpose were sufficiently restricted. The lease between C-Town and the Authority contains none of the detailed restrictions evident in Roe that made that private agency an arm of the government for purposes of carrying out a traditional government purpose. This lease may fall short of fulfilling the public good.

We reject plaintiff’s assertion, however, that Scott v. Town of Bloomfield, 94 N.J.Super. 592, 229 A.2d 667 (Law Div.1967), aff'd, 98 N.J.Super. 321, 237 A.2d 297 (App.Div.), appeal dismissed, 52 N.J. 473, 246 A.2d 129 (1968), and East Orange v. Board of Water Commissioners, 79 N.J.Super. 363, 191 A.2d 749 (App.Div.), aff'd on other grounds, 41 N.J. 6, 194 A.2d 459 (1963), command that the public entity receive fair consideration for the lease. Neither case is on point. Moreover, a public entity need not receive fair consideration for a lease so long as the activity sponsored is for a public purpose and the private entity represents the controlled means by which the government accomplishes the public purpose.

We remand to the trial court to determine whether the purchase, lease, and operation of the supermarket constituted a public purpose, and, if so, whether the Housing Authority used justifiable means to attract a supermarket to the area of downtown New Brunswick.

*220Judgment reversed and cause remanded for further proceedings consistent with this opinion.

POLLOCK, J.,

concurring.

The Court reverses the Appellate Division’s affirmance of the Chancery Division’s grant of summary judgment invalidating the restrictive covenant and remands the matter to the Chancery Division for a plenary hearing. Although I concur in the judgment .of remand, I believe it should be on different terms.

My basic difference with the majority is that I believe the critical consideration in determining the validity of this covenant is whether it is reasonable as to scope and duration, a point that has never been at issue in this case. Nor has there ever been any question whether the original parties to the covenant, Davidson Bros., Inc. (Davidson), and D. Katz & Sons, Inc. (Katz) intended that the covenant should run with the land. Likewise, the New Brunswick Housing Authority (the Authority) and C-Town have never disputed that they did not have actual notice of the covenant or that there was privity between them and Katz. Finally, the defendants have not contended that the covenant constitutes an unreasonable restraint on trade or that it has an otherwise unlawful purpose, such as invidious discrimination. Davidson, moreover, makes the uncontradicted assertion that the covenant is a burden to the George Street property and benefits the Elizabeth Street property. Hence, the covenant satisfies the requirement that it touch and concern the benefitted and burdened properties.

The fundamental flaw in the majority’s analysis is in positing that an otherwise-valid covenant can become invalid not because it results in an unreasonable restraint on trade, but because invalidation facilitates a goal that the majority deems worthy. Considerations such as “changed circumstances” and “the public interest,” when they do not constitute such a restraint, should not affect the enforceability of a covenant. Instead, they should relate to whether the appropriate method *221of enforcement is an injunction or damages. A court should not declare a noncompetition covenant invalid merely because enforcement would lead to a result with which the court disagrees. This leads me to conclude that the only issue on remand should be whether the appropriate remedy is damages or an injunction.

Enforcement of the restriction by an injunction will deprive the downtown residents of the convenience of shopping at the George Street property. Refusal to enforce the covenant, on the other hand, will deprive Davidson of the benefit of its covenant. Thus, the case presents a tension between two worthy objectives: the continued operation of the supermarket for the benefit of needy citizens, and the enforcement of the covenant. An award of damages to Davidson rather than the grant of an injunction would permit the realization of both objectives.

-I-

I begin by questioning the majority’s formulation and application of a reasonableness test for determining whether the covenant runs with the land. The law has long distinguished between the validity of a covenant between original-contracting parties from the enforceability of a covenant against the covenantor’s successor-in-interest. Initial validity is a question of contract law; enforceability against subsequent parties is one of property law. Caullett v. Stanley Stilwell & Sons, 67 N.J.Super. 111, 116, 170 A.2d 52 (App.Div.1961); R. Cunningham, W. Stoebuck, and D. Whitman, The Law of Property 467 (1984) (Cunningham). That distinction need not foreclose a subsequent owner of the burdened property from challenging the validity of the contract between the original parties. The distinction, however, sharpens the analysis of the effect of the covenant.

In this case, the basic issue is enforceability of the covenant against the Authority and C-Town, successors in interest to *222Katz. Thus, the only relevant consideration is whether the covenant “touches and concerns” the benefitted and burdened properties. For the Chancery Division, the critical issue was “whether the restriction burdens the land in the hands of the Authority.” As the majority points out, “[i]n contrast to the trial court’s decision, the Appellate Division’s rationale was premised on the failure of the benefit of the covenant to run, not of the burden.” Ante at 202, 579 A.2d at 291. The majority correctly disagrees with the Appellate Division’s rationale, properly observing that a covenant can provide a benefit even without burdening most of the properties in the relevant market area. Ante at 214, 579 A.2d at 297. Concerning the running of the burden on the George Street property, the majority views Brewer v. Marshall & Cheeseman, 19 N.J.Eq. 537 (E. & A.1868), as an anachronism. It properly overrules the holding of Brewer “that a noncompetition covenant will not run with the land * * *.” Ante at 207, 579 A.2d at 293. Continuing, the majority observes that in most jurisdictions the “ ‘touch and concern’ test has * * * ceased to be * * * intricate and confounding,” and that “[cjourts have decided as an initial matter that covenants not to compete do touch and concern the land.” Ante at 209, 579 A.2d at 294. Instead of concluding its analysis, the majority adds: “We do not abandon the ‘touch and concern’ test, but rather hold that the test is but one of the factors a court should consider in determining the reasonableness of the covenant.” Ante at 210, 579 A.2d at 295.

The Court can decide the present case without introducing a new test. On the present record, no question exists about the running of the benefit of the covenant. First, the party seeking to enforce the covenant is Davidson, the original leaseholder, not a successor in interest, of the Elizabeth Street property. Second, as the language of the covenant indicates, the original contracting parties, Davidson and Katz, indicated that the covenant would run with the land. Third, Davidson makes the uncontradicted assertions that both stores were unprofitable before the sale, that the Elizabeth Street store after the sale of *223the George Street property enjoyed a twenty-per-cent sales increase, and that the reopening of the George Street property caused it to suffer a loss of income. Finally, as the majority recognizes, the lower courts erred in concluding that the covenant did not “touch and concern” the burdened and benefitted properties. Ante at 213, 579 A.2d at 296.

It is virtually inconceivable that the covenant does not benefit the Elizabeth Street property. New Jersey courts have declared variously that the benefit “must exercise direct influence upon the occupation, use or enjoyment of the premises,” Caullett, supra, 67 N.J.Super. at 116, 170 A.2d 52, and that the covenant must confer “a direct benefit on the owner of land by reason of his ownership,” National Union Bank at Dover v. Segur, 39 N.J.L. 173, 186 (Sup.Ct.1877). Scholars have written that a covenant’s benefit touches and concerns land if it renders the owner’s interest in the land more valuable, Bigelow, The Content of Covenants in Leases, 12 Mich.L.Rev. 639, 645 (1914), or if “the parties as laymen and not as lawyers” would naturally view the covenant as one that aids “the promisee as landowner,” C. Clark, Real Covenants and Other Interests Which Run with the Land 99 (2d ed. 1947) (Clark); see also 5 R. Powell & P. Rohan, Powell on Real Property ¶ 673[2][a] (1990) (Powell) (inclining towards Clark’s view). Like most courts, leading scholars, Powell, supra, § 675[3]; Cunningham, supra, at 474-75; and Clark, supra, at 106, believe that under the “touch and concern” test, the benefit of non-competition covenants should run with the land.

The conclusion that this covenant “touches and concerns” the land should end the inquiry about enforceability against the Authority and C-Town. The majority, however, holds that the “touch and concern” test is “but one of the factors a court should consider in determining the reasonableness of the covenant.” Ante at 210, 579 A.2d at 295. The majority’s inquiry about reasonableness, however, confuses the issue of validity of the original contract between Davidson and Katz with enforceability against the subsequent owner, the Authority. This *224confusion of validity with enforceability threatens to add uncertainty to an already troubled area of the law. As explained by one leading authority, “[t]he judicial reaction to this confusion [in the law of covenants and equitable servitudes] has often been to state the law so as to achieve the desired result in a particular case. Obviously, this has caused frequent misstatements of the law, which has deepened the overall confusion.” Powell, supra, ¶ 670[2].

The majority inaccurately asserts, ante at 208, 579 A.2d at 294, that most jurisdictions “have focused on whether the covenant is reasonable enough to warrant enforcement.” Not one case cited by the majority has concluded that a covenant that is reasonable against the original covenantor would be unreasonable against the covenantor’s successor who takes with notice. For example, in Hercules Powder Co. v. Continental Can Co., 196 Va. 935, 945, 86 S.E.2d 128, 133 (1955), only after first concluding that the restriction was reasonable did the court consider “whether it is enforceable by Continental Can, an assignee of the original covenantee, against Hercules, an assignee of the original covenantor.” In determining that Hercules was subject to the restriction, the court considered only whether it purchased the land with notice of the restriction. Id. at 946-48, 86 S.E.2d at 134-35. Similarly, in Quadro Stations v. Gilley, 7 N.C.App. 227, 234, 172 S.E.2d 237, 242 (1970), the court first concluded that the restriction was valid, and then held that it was enforceable against defendants, successors in interest to the original covenanting parties. Nothing in the opinion implies that a restriction that was reasonable between the original parties would be unenforceable against a purchaser of the burdened property who bought with notice. Doo v. Packwood, 265 Cal.App.2d 752, 756, 71 Cal.Rptr. 477, 481 (1968), is likewise unavailing to the majority. There, when purchasing a lot on which Doo had operated a grocery store, Packwood agreed to a noncompetition covenant. After concluding that the covenant was reasonable as between the original parties, the court found that it would be binding on *225a future purchaser with notice. Ibid. In effect, future purchasers would be bound so long as Doo continued to operate a competitive grocery store. Ibid. To conclude, the cited cases hold that a reasonable noncompetition covenant binding on the original covenantor likewise binds a subsequent purchaser with notice. Hence, the majority misperceives the focus of the out-of-state cases. The result is that the majority’s reasonableness test introduces unnecessary uncertainty in the analysis of covenants running with the land.

As troublesome as uncertainty is in other areas of the law, it is particularly vexatious in the law of real property. The need for certainty in conveyancing, like that in estate planning, is necessary for people to structure their affairs. Covenants that run with the land can affect the value of real property not only at the time of sale, but for many years thereafter. Consequently, vendors and purchasers, as well as their successors, need to know whether a covenant will run with the land. The majority acknowledges that noncompetition covenants play a positive role in commercial development. Ante at 210, 579 A.2d at 295. Notwithstanding that acknowledgement, the majority’s reasonableness test generates confusion that threatens the ability of commercial parties and their lawyers to determine the validity of such covenants. This, in turn, impairs the utility of noncom-petition covenants in real estate transactions.

As between the vendor and purchaser, a noncompetition covenant generally should be treated as valid if it is reasonable in scope and duration, Irving Inv. Corp. v. Gordon, 3 N.J. 217, 221, 69 A.2d 725 (1949); Heuer v. Rubin, 1 N.J. 251, 256-57, 62 A.2d 812 (1949); Scherman v. Stern, 93 N.J.Eq. 626, 630, 117 A. 631 (E. & A.1922), and neither an unreasonable restraint on trade nor otherwise contrary to public policy. A covenant would contravene public policy if, for example, its purpose were to secure a monopoly, Quadro Stations, supra, 7 N.C.App. at 235, 172 S.E.2d at 242; Hercules Powder Co., supra, 196 Va. at 944-45, 86 S.E.2d at 132-33, or to carry out an illegal object, *226such as invidious discrimination, see, e.g., N.J.S.A. 46:3-23 (declaring restrictive covenants in real estate transactions void if based on race, creed, color, national origin, ancestry, marital status, or sex).

Applying those principles to the validity of the agreement between Davidson and Katz, I find this covenant enforceable against defendants. The majority acknowledges that “[t]he parties do not specifically contest the reasonableness of either the duration or the area of the covenant.” Ante at 213, 579 A.2d at 296. I agree. The covenant is limited to one parcel, the George Street property. Defendants do not assert that Davidson has restricted or even owns other property in New Brunswick. Furthermore, they do not allege that other property is not available for a supermarket. In brief, the Authority has not alleged that at the time of the sale from Davidson to Katz, or even at present, the George Street property was the only possible site in New Brunswick for a supermarket. Consequently, the covenant may not be construed to give rise to a monopoly. In all of New Brunswick it restricts a solitary one-half acre tract from use for a single purpose. Indeed, the record demonstrates that the Authority explored other options, including expansion of a food cooperative and increasing the product lines at nearby convenience stores. Nothing in the record supports the conclusion that the covenant might be unreasonable respecting space.

Nor does anything indicate that the forty-year length of the restriction between Davidson and Katz is unreasonable in time. As we have stated, “where the space contained in the covenant is reasonable and proper there need be no limitation as to time.” Rubin, supra, 1 N.J. at 256-57, 62 A.2d 812. That statement echoes the words “certainly it is no objection to an agreement not to compete with a mercantile business that the restraint is unlimited in point of time when [as here] it is reasonably limited in point of space.” Stern, supra, 93 N.J.Eq. at 630, 117 A. 631. To sustain the subject covenant we need not go so far as to say that a covenant could never be unreason*227ably long. In an appropriate case, a court, drawing on the analogy to restrictive covenants in employment contracts, might reform a covenant so that it lasts only for a reasonable time. Solari Indus. v. Malady, 55 N.J. 571, 264 A.2d 53 (1970). This is not such a ease.

Here, Davidson holds a lease on the Elizabeth Street property for a term of twenty years, with two renewable five-year terms. Those lease terms are substantially, if not precisely, coextensive with the term of the covenant. If, on remand, the Chancery Division should find that the additional ten-year period is not enforceable by Davidson, it should also find that the restriction is valid for the thirty-year period during which Davidson’s lease may run. In sum, I believe that the covenant is reasonable at least for the term of Davidson’s lease.

To the extent that noncompetition covenants in real estate transactions are deemed valid if reasonable in scope and duration, they are more readily upheld than similar covenants arising out of employment contracts. Solari Indus., supra, 55 N.J. at 576, 264 A.2d 53. In this regard, Williston points out that “[rjestriction upon the use of real property is considered less likely to affect the public interest adversely than restraint of the activities of individual parties and accordingly, such covenants are usually held not contrary to public policy.” 14 Williston on Contracts § 1642 (3d ed. 1972) (Williston). Nothing in the record supports the conclusion that when made or at present the subject covenant was an unreasonable restraint on trade or otherwise contrary to public policy.

Certain of the factors identified by the majority must be present for a covenant to run apart from the considerations of reasonableness. Such factors are the intent of the parties that the covenant run, clarity of the express restrictions, whether the covenant was in writing, and whether it was recorded. Caullett, supra, 67 N.J.Super. at 116, 170 A.2d 52; Petersen v. Beekmere, 117 N.J.Super. 155, 166-67, 283 A.2d 911 (Ch.Div.1971); Clark, supra, at 94; Cunningham, supra, at 470. As *228previously indicated, all those factors are present in this ease. If they had not been present, the covenant would have been unenforceable without reference to a reasonableness test. Duplicating those factors in such a test is counterproductive.

The majority’s three remaining factors also pose troubling problems. Without citing any authority, the majority invites review of “[wjhether the covenant had an impact on the considerations exchanged when the covenant was originally executed.” Ante at 210, 579 A.2d at 295. As the majority acknowledges, however, Davidson has made the uncontradicted assertion “that the purchase price negotiated between it and Katz took into account the value of the restrictive covenant and that Katz paid less for the property because of the restriction.” Ante at 213, 579 A.2d at 296.

In contract matters, courts ordinarily concern themselves with the existence, not the adequacy, of consideration. Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43, 161 A.2d 717 (1960). Because a noncompetition covenant in a commercial-real-estate sale involves the sale of property in exchange for the payment of the purchase price and the noncompetition covenant, it would be difficult to argue that the covenant was not supported by consideration. In fact, the majority does not cite to a single case in which a noncompetition covenant in a real-estate transaction has been declared invalid for lack of consideration.

Recognizing that the covenant should run is consistent with the intent of the contracting parties and reflects the economic consequences of their transaction. As Chief Justice Beasley wrote in National Union Bank at Dover, supra, 39 N.J.L. at 187, “[s]ince these parties most manifestly have thought that the stipulation in question gave additional value to the property, why, and on what ground, should the court declare that such was not the case?” See DeGray v. Monmouth Beach Club House Co., 50 N.J.Eq. 329, 333, 24 A. 388 (Ch. 1892) (“The equity thus enforced arises from the inference that the covenant has, to a material extent, entered into the consideration of *229the purchase, and that it would be unjust to the original grantor to permit the covenant to be violated.”); Tulk v. Moxhay, 2 Phil. 774, 777-78, 41 Eng.Rep. 1143, 1144 (1848) (“Of course, the price would be affected by the covenant and nothing could be more inequitable than that the original purchaser should be able to sell the property the next day for a greater price, in consideration of the assignee being allowed to escape from the liability which he had himself undertaken.”).

The majority’s other two factors are “whether the covenant interferes with the public interest,” and “whether, even if the covenant was reasonable at the time it was executed, ‘changed circumstances’ now make the covenant unreasonable.” Ante at 212, 579 A.2d at 295. In this regard, the majority adds that

[t]he trial court must first determine whether the covenant was reasonable at the time it was enacted. If it was reasonable then, but now adversely affects commercial development and the public welfare of the people of New Brunswick, the trial court may consider whether allowing damages is an appropriate remedy. C-Town could continue to operate but Davidson would get damages for the value of his [sic] covenant. On the limited record before us, however, it is impossible to make a determination as to the reasonableness of the covenant or whether damages, injunctive relief, or any relief is appropriate. [Ante at 215, 579 A.2d at 297.]

Implicit in the statement is the notion that a court might declare a covenant invalid even if it is reasonable in scope and duration, does not have a pernicious objective, and creates neither a monopoly nor an unreasonable restraint of trade. In brief, merely because it does not like a covenant, a court may find it invalid. This implication infects the usefulness of such covenants and represents an unwarranted intrusion of the judiciary in private transactions. The statement also points up the problem of blurring the contractual and property aspects of the covenant. Supra at 221-222, 579 A.2d at 300-301. Fairly read, the factors are not relevant to the determination of enforceability, as the Court initially indicated, but to the determination whether the appropriate relief is the award of damages or an injunction. See Welitoff v. Kohl, 105 N.J.Eq. 181, 189, 147 A. 390 (E. & A.1929).

*230The decided cases suggest that changed circumstances justify the refusal to enforce an otherwise-enforceable covenant only when the change defeats the covenant’s purpose. Thus, in Doo, supra, 265 Cal.App.2d at 756, 71 Cal.Rptr. at 481, a claim of changed circumstances could not defeat a restrictive covenant against a grocery store as long as the benefitted party continued to operate a competitive store on another property. Analogous New Jersey cases imply a similar conclusion. In Weinstein v. Swartz, 3 N.J. 80, 89, 68 A.2d 865 (1949), when business development elsewhere did not affect the residential character of the neighborhood in which the burdened property was located, the Court recognized the continuing validity of restrictions limiting the use of the property to a single-family residence. Similarly, in Leasehold Estates v. Fulbro Holding Co., 47 N.J.Super. 534, 565, 136 A.2d 423 (App.Div.1957), the court refused to enforce a 103-year-old covenant limiting the use of the front of an alley to barns and stables because enforcement would not provide the “contemplated benefit to the covenantee.”

Perhaps the majority’s opinion'is best read as holding that Davidson is entitled to damages but not an injunction if the covenant was reasonable when formed, but now adversely affects the public welfare of the people of New Brunswick. See Gilpin v. Jacob Ellis Realties, 47 N.J.Super. 26, 31-34, 135 A.2d 204 (App.Div.1957). Such a holding would ensure that Davidson will not be “left without any redress; * * * [it will be] given what plaintiffs are given in many types of cases — relief measured, so far as the court reasonably may do so, in damages.” Id. at 34, 135 A.2d 204.

Nothing in the record provides any basis for finding that in the six years that elapsed between 1980, when Davidson sold to Katz, and 1986, when Katz sold to the Authority, circumstances changed so much that they render the covenant unenforceable. The record is devoid of any showing that anything has happened since 1980 that has deprived the Elizabeth Street store of the covenant’s benefit. Notions of “changed circumstances” *231and the “public interest” thinly veil the Authority’s attempt to avoid compensating Davidson for the cost of the lost benefit of an otherwise-enforceable covenant. I am left to wonder whether the majority would so readily condone the Authority’s taking of Davidson’s property if the interest taken were one in fee simple and not a restrictive covenant. It is wrong to take Davidson’s covenant without compensation just as it would be wrong to take its fee interest without paying for it. Shopkeepers in malls throughout the state will be astonished to learn that noncompetition covenants that they have so carefully negotiated in their leases are subject to invalidation because they run counter to a court’s perception of “changed circumstances” and the “public interest.”

-II-

For me the critical issue is whether the appropriate remedy for enforcing the covenant is damages or an injunction. Ordinarily, as between competing land users, the more efficient remedy for breach of a covenant is an injunction. R. Posner, Economic Analysis of Law 62 (1986) (Posner); R. Epstein, Notice and Freedom of Contract in the Law of Servitudes, 55 S.Cal.L.Rev. 1353-67 (1962); Calabresi and Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv.L.Rev. 1089, 1118 (1972) (Calabresi and Melamed). But see Posner, supra, at 59; Calabresi and Melamed, supra, at 119 (discussing situations in which damages are a more efficient remedy than an injunction). If Katz still owned the George Street property, the efficient remedy, therefore, would be an injunction. The Authority, which took title with knowledge of the covenant, is in no better position than Katz insofar as the binding effect of the covenant is concerned. Although an injunction might be the most efficient form of relief, it would however deprive the residents of access to the George Street store.

*232The economic efficiency of an injunction, although persuasive, is not dispositive. The right rule of law is not necessarily the one that is most efficient. Saint Barnabas Medical Center v. Essex County, 111 N.J. 67, 88, 543 A.2d 34 (1988) (Pollock, J., concurring); see also R. Coase, The Problem of Social Cost, 3 J. Law & Econ. 1, 19 (1960). In other cases, New Jersey courts have allowed cost considerations other than efficiency to affect the award of a remedy.

For example, in Gilpin, supra, 47 N.J.Super. 26, 135 A.2d 204, the court refused to approve an injunction, but upheld an award of damages to the victim of a breach of a covenant. The property right at issue was a covenant restricting the building of any structure more than fifteen feet tall within four feet of one of the parties’ common boundaries. Defendant, a builder, was the successor to the land of the original covenantor. Plaintiff succeeded to ownership of the land originally benefited by the covenant. Defendant and plaintiff were neighboring landowners. Defendant breached the covenant. Remodeling the structure would have cost defendant $11,500. The trial court had found that the breach harmed plaintiff to the extent of $1,000 in damages. Invoking the “doctrine of relative hardship,” the Appellate Division held that the differences in these two figures were “so grossly disproportionate in amount as to justify the denial of the mandatory injunction.” 47 N.J.Super. at 35-36, 135 A.2d 204. At the same time, the Appellate Division upheld the $1,000-damages award to plaintiff. Id. at 36, 135 A.2d 204. Thus, the court concluded that the appropriate remedy for enforcing the covenant was an award of damages, not an injunction.

Injunctions, moreover, are ordinarily issued in the discretion of the court. Id. at 29, 135 A.2d 204. Hence, “[t]he court of equity has the power of devising its remedy and shaping it so as to fit the changing circumstances of every case and the complex relations of all the parties.” Sears, Roebuck & Co. v. Camp, 124 N.J.Eq. 403, 412, 1 A.2d 425 (E. & A.1938) (quoting Pomeroy, Equity Jurisprudence § 109 (5th ed. 1941)). In the *233exercise of its discretion, a court may deny injunctive relief when damages provide an available adequate remedy at law. See Board of Educ., Borough of Union Beach v. N.J.E.A., 53 N.J. 29, 43, 247 A.2d 867 (1968).

In the past, however, an injunction in cases involving real covenants and equitable servitudes “was granted almost as a matter of course upon a breach of the covenant. The amount of damages, and even the fact that the plaintiff has sustained any pecuniary damages, [was] wholly immaterial.” J.N. Pomeroy, Equity Jurisprudence, § 1342 (5th ed. 1941). The roots of that tradition are buried deep in the English common law and are not suited for modern American commercial practices. In brief, the unswerving preference for injunctive relief over damages is an anachronism.

At English common law, as between grantors and grantees, covenants running with the land violated the public policy against encumbrances. See Powell, supra, § 670 n. 27 (citing Keppell v. Bailey, 39 Eng.Rep. 1042 (Ch. 1834)). The policy becomes understandable on realizing that England originally did not provide a system for recording encumbrances, such as restrictive covenants. See Berger, A Policy Analysis of Promises Respecting the Use of Land, 55 Minn.L.Rev. 167, 186 (1970). Without a recording system, a subsequent grantee might not receive actual or constructive notice of such a covenant. As the Court points out, “[a]dequate notice obliterated any express requirement of ‘touch and concern.’ ” Ante at 204, 579 A.2d at 292.

For centuries, New Jersey has provided a means for recording restrictive covenants. Hence, the policy considerations that counselled against enforcement of restrictive covenants at English common law do not apply in this state. In the absence of an adequate remedy at law, moreover, the English equity courts filled the gap by providing equitable relief, such as an injunction. Tulk, supra, 2 Phil. 774, 41 Eng.Rep. 1143 (discussed by the majority, ante at 204, 579 A.2d at 292.) In this *234state, unlike in England, covenants between grantor and grantee are readily enforceable. Roehrs v. Lees, 178 N.J.Super. 399, 429 A.2d 388 (App.Div.1981) (covenant between neighboring property owners arising from a grantor-grantee relationship between original covenanting parties enforceable; matter remanded to trial court to determine whether damages or injunction was appropriate); Gilpin, supra, 47 N.J.Super. at 29, 135 A.2d 204. Hence, the need for injunctive relief, as distinguished from damages, is less compelling in New Jersey than at English common law, where damages were not always available. I would rely on the rule that a court should not grant an equitable remedy when damages are adequate. N.J.E.A., supra, 53 N.J. at 43, 247 A.2d 867.

Here, moreover, the Authority holds a trump card not available to all other property owners burdened by restrictive covenants — the power to condemn. By recourse to that power, the Authority can vitiate the injunction by condemning the covenant and compensating Davidson for its lost benefit. That power does not alter the premise that an injunction is generally the most efficient form of relief. See Calabresi and Melamed, supra, at 1118; Posner, supra, at 62. It merely emphasizes that the Authority through condemnation can effectively transform injunctive relief into a damages award. Arguably, the most efficient result is to enforce the covenant against the Authority and then remit it to its power of condemnation. This result would recognize the continuing validity of the covenant, compensate Davidson for its benefit, and permit the needy citizens of New Brunswick to enjoy convenient shopping.

Forcing the Authority to institute eminent-domain proceedings conceivably would waste judicial resources and impose undue costs on the parties. A more appropriate result is to award damages to Davidson for breach of the covenant. That would be true, I believe, even against a subsequent grantee that does not possess the power to condemn.

*235Money damages would compensate Davidson for the wrong done by the opening of the George Street supermarket. Davidson would be “given what plaintiffs are given in many types of cases — relief measured, so far as the court reasonably may do so, in damages.” Gilpin, supra, 47 N.J.Super. at 34, 135 A.2d 204. The award of money damages, rather than an injunction, might be the more appropriate form of relief for several reasons. First, a damages award is “particularly applicable to a case, such as this, wherein we are dealing with two commercial properties * * *.” Id. at 35, 135 A.2d 204. Second, the award of damages in a single proceeding would provide more efficient justice than an injunction in the present case, with a condemnation suit to follow. Davidson would be compensated for the loss of the covenant and the needy residents would enjoy more convenient shopping. That solution is both efficient and just.

I can appreciate why New Brunswick residents want a supermarket and why the Authority would come to their aid. Supermarkets may be essential for the salvation of inner cities and their residents. The Authority’s motives, however noble, should not vitiate Davidson’s right to compensation. The fair result, it seems to me, is for the Authority to compensate Davidson in damages for the breach of its otherwise valid and enforceable covenant.

Justice CLIFFORD joins in this opinion.

Justices CLIFFORD and POLLOCK concurring in the result.

For reversal and remandment — Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN — 6.

For affirmance — None.

OPINION

RAY, Justice.

This is a restrictive covenant case involving the implied reciprocal negative easement doctrine. The trial court found that only the lakefront lots were impressed with restrictive covenants as part of the general plan of development, but the hilltop block was not. It implied the negative reciprocal easement on the developers’ retained lakefront lots only, enjoining their use contrary to the restrictive covenants burdening the other lakefront lots. The court of appeals reversed and rendered, holding that a reciprocal negative easement can be imposed only when the general plan of development *466includes the entire subdivision tract and attaches to all the property retained by the common developer-owner. 793 S.W.2d 14 (Tex.App.1989). We hold that there need only be a clearly-defined restricted district to which the restrictions apply as part of the plan of development, some lots of which are either retained by the owner-developer or sold to a purchaser with actual or constructive notice of the restrictions, for the doctrine to apply as to those lots. We reverse the judgment of the court of appeals and remand the cause to that court for consideration of factual sufficiency points.

The Implied Reciprocal Negative Easement Doctrine

Because it sets the legal context for the factual disputes, we first briefly discuss the legal theory of this controversy. The doctrine of implied reciprocal negative easements applies when an owner of real property subdivides it into lots and sells a substantial number of those lots with restrictive covenants designed to further the owner’s general plan or scheme of development. The central issue is usually the existence of a general plan of development. The lots retained by the owner, or lots sold by the owner from the development without express restrictions to a grantee with notice of the restrictions in the other deeds, are burdened with what is variously called an implied reciprocal negative easement, or an implied equitable servitude, or negative implied restrictive covenant, that they may not be used in violation of the restrictive covenants burdening the lots sold with the express restrictions. A reasonably accurate general statement of the doctrine has been given as follows:

[Wjhere a common grantor develops a tract of land for sale in lots and pursues a course of conduct which indicates that he intends to inaugurate a general scheme or plan of development for the benefit of himself and the purchasers of the various lots, and by numerous conveyances inserts in the deeds substantially uniform restrictions, conditions and covenants against the use of the property, the grantees acquire by implication an equitable right, variously referred to as an implied reciprocal negative easement or an equitable servitude, to enforce similar restrictions against that part of the tract retained by the grantor or subsequently sold without the restrictions to a purchaser with actual or constructive notice of the restrictions and covenants. [Citations omitted.]

Minner v. City of Lynchburg, 204 Va. 180, 188, 129 S.E.2d 673, 679 (1963).

The implied reciprocal negative easement doctrine has long been recognized in many jurisdictions. Annot., 60 A.L.R. 1216 (1929); Annot., 144 A.L.R. 916 (1943). This court expressly approved the doctrine in Curlee v. Walker, 112 Tex. 40, 43-44, 244 S.W. 497, 498 (1922). Curlee was a standing case in which we expressly addressed whether the owner of a lot subject to a restrictive covenant had standing to assert the restrictive covenant in another landowner’s deed; the case did not involve an implied reciprocal negative easement. Because the concept of a general plan of development is so frequently connected to the doctrine and standing questions, however, we wrote extensively on the implied reciprocal negative easement doctrine. The leading Texas case on implied reciprocal negative easements is Hooper v. Lottman, 171 S.W. 270 (Tex.Civ.App.-El Paso 1914, no writ), from which we quoted at length with approval in Curlee. We implicitly recognized the doctrine in MacDonald v. Painter, 441 S.W.2d 179 (Tex.1969). Numerous intermediate appellate decisions have applied it, as we will examine below.

Facts

In September of 1947 Stanley and Sarah Agnes Hornsby (the Hornsbys), together with Charles and Bernice McCormick (McCormicks) platted a subdivision around Lake Travis from their commonly owned property in Travis County. They named the subdivision “Beby’s Ranch Subdivision No. 1.” The plat itself did not state any restrictions on land-use. The plat divided the property into seven blocks designated alphabetically “A” through “G”. The plat did not further subdivide blocks C, D, E, *467and F, but blocks A, B, and G were divided into thirty-one lots. The subdivision is on a peninsula-like tract that extends into the lake, so that much of it has lake frontage. All of the platted lots are lakefront lots. Block G is located on the point of the peninsula. Block F is located on a hill and is surrounded by lake-front lots. This is the schematic diagram of the subdivision:

*468

*469Block F is also referred to as the “hilltop.”

In October of 1947, before selling any lots other than two lots sold prior to the platting discussed below, the Hornsbys and McCormicks partitioned Beby’s No. 1 between themselves. By partition deed the McCormicks received title to all of Blocks A, B, and C, and the Hornsbys got Blocks D, E, F, and G. Over the next several years, the Hornsbys and the McCormicks conveyed twenty-nine parcels of land from Beby’s No. 1 to third parties or one another. Stanley Hornsby, a real estate attorney, and his law partner Louise Kirk, handled most of the legal work relating to the sale of lots, and the McCormicks made most of the sales. A real estate agent advertised some of the lakefront lots for sale in 1955, describing them as in “a restricted subdivision.” Each deed from the Hornsbys and the McCormicks contained substantially the same restrictive covenants, including, among others, covenants: (1) prohibiting business or commercial use of the land conveyed; (2) restricting the land to residential use with only one dwelling per lot; and (3) providing that the restrictions could be changed by % of the property owners within the subdivision “voting according to front footage holdings on the 715 contour line” of the lake. In 1946 the McCormicks had conveyed two of the lakefront lots unburdened by any deed restrictions. When the original grantee conveyed the two lots to third parties in 1954, he had Hornsby draft the deeds. The deeds contained the restrictions that the property could not be used for any business or commercial purposes and that the restrictions could be altered by the “% vote” along the 715 contour. Thus all lots conveyed ended up with substantially similar restrictions. All were lakefront lots, and voting rights under the restrictive covenants apparently were limited to lots with lake frontage.

The Hornsbys retained ownership of lots 4 through 8 in Block G and all of Block F. Both Hornsbys are now deceased, and the retained property passed to their devisees. The present dispute arose when the Horns-by devisees contracted to sell Thomas R. Pollock all of Block F and lots 4 and 5 in Block G for the purpose of building a marina, private club, and condominium development. Charles Evans and other owners whose deeds contained the restrictive covenants sued for equitable relief under the implied reciprocal negative easement doctrine. They sought declaration that the restrictive covenants enumerated above expressly imposed by deed upon their property were implied upon the Hornsby retained property. They further sought an injunction to prevent the Hornsby devisees from conveying the property without such deed restrictions.

Trial Court Findings and Holding ■

Trial was to the court. The testimony sharply conflicted as to Stanley Hornsby’s oral representations of his intentions for the retained property. The evidence ranged from testimony that could reasonably be interpreted to mean that Hornsby intended all the subdivision property to be restricted, to testimony lending itself to the conclusion that Hornsby intended the retained property to be unrestricted in all respects. The trial court filed numerous findings of fact, including these:

17. The restrictions at issue were part of a general plan for- development of the subdivision by the original subdividers, Stanley and Sarah Agnes Hornsby and Charles and Bernice McCormick.

18. This general plan of development involved protection/preservation of the strictly residential character of the subdivision, prohibition of business-commercial activities within the subdivision, and provision for change or modification of the restrictions by vote of the owners of parcels within the subdivision.

19. The general plan of development of the original subdividers (Stanley and Sarah Agnes Hornsby, Charles and Bernice McCormick) was that all lakefront property within the subdivision be burdened with the same restrictions.

20. Stanley Hornsby and his real estate broker represented to various purchasers that all lakefront parcels (i.e. all parcels except Block F) were restricted to resi*470dential use only and that business-commercial use thereof was prohibited.

* * * * # *

22. Non-enforcement of the general plan of development as to the lakefront lots will decrease the value of the lots purchased and presently owned by Plaintiffs Arnold and Kay Sousares.

The trial court rendered judgment declaring that the restrictions at issue applied to the five lakefront lots owned by the Horns-by devisees and enjoining them from conveying any interest in the lots without including the restrictions in the conveyance.

Court of Appeals Action and Holding

All parties appealed the judgment. The Hornsby devisees and Pollock interests maintained that the restrictions should not have been implied on the retained property, and the Evanses and other property owners complained that the trial court should have also implied the restrictions against the hilltop and should have allowed them attorneys’ fees. The court of appeals reversed and rendered judgment that plaintiffs take nothing, holding that none of the retained lots were restricted. The court of appeals reasoned that for the implied reciprocal negative easement doctrine to apply, the original grantors had to have intended that the entire subdivision be similarly restricted. Relying primarily on the language from Saccomanno v. Farb, 492 S.W.2d 709, 713 (Tex.Civ.App.-Waco 1973, writ ref’d n.r.e.), requiring proof “evidencing a scheme or intention that the entire tract should be similarly treated,” the court wrote, “It is the scope of the plan which defeats application of the doctrine.” 793 S.W.2d at 21.

No Requirement of “Inception” of Plan

Respondents urge that the court of appeals’ holding should be construed to be that there was no evidence that the developer-grantors intended from the inception of the subdivision that there would be specific restrictions that applied to all property within the subdivision. Respondents cite Davis v. Huey, 620 S.W.2d 561, 567 (Tex.1981), for the proposition that the general scheme or plan must exist when the subdivision is platted, or from the inception of the subdivision. We stated in Davis v. Huey, “Moreover, the meaning of Paragraph 8 and accordingly the nature of the notice thereby furnished to the Davises, is determined at the date of the inception of the general plan or scheme, i.e., in 1965, the date of filing of the restrictions in the Deed Records of Travis County.” This statement should not be read out of the context of the case. Davis v. Huey involved express restrictive covenants recorded on the plat for an entire subdivision. There was an express setback requirement, and an architectural approval requirement (“Paragraph 8”). The developer had used the architectural approval requirement to impose an additional setback requirement (by denying approval) because other lot owners had actually built their houses further from the lot lines. The developer sought to enforce a setback uniformity beyond what existed when the Davises bought their lot, and admittedly beyond the types of architectural restrictions envisioned by the original plan of development. Davis v. Huey was a “notice” case. We wrote it was “essential that the party seeking to enforce the restrictions on the use of land establish that the purchaser had notice of the limitations on his title.” 620 S.W.2d at 567. The requirement that the general plan exist from the inception of the subdivision applied only in the factual context of that notice case. In particular, we attach no significance to the fact that two lots were sold without restrictions before the owners formulated their general scheme or plan of development.

The Scope of a “Restricted District”

Provisions in restrictive covenants that the restrictions may be waived or modified by the consent of three-fourths of the lot owners constitute strong evidence that there is a general scheme or plan of development furthered by the restrictive covenants. Armstrong v. Leverone, 105 Conn. 464, 472, 136 A. 71, 74 (1927). The voting rights in the present case clearly attached only to lakefront lots. It was reasonable *471for the trial court to conclude that the restrictions were meant to apply only to the lakefront lots. The legal question is whether all the tracts in the development must be intended to be subject to the restrictions for the implied reciprocal negative easement doctrine to apply to any of the retained lots. We find it immaterial whether the question is phrased as whether the plan may be that some tracts are unrestricted while others are restricted, or whether the plan need only apply to certain similarly situated lots. We hold that the general plan or scheme may be that the restrictions only apply to certain well-defined similarly situated lots for the doctrine of implied reciprocal negative easements to apply as to such lots. Logical extensions of Texas decisions, as well as decisions from sister states, support our conclusion.

Texas cases support the conclusion that the restricted area need not be the whole subdivision. The facts in Curlee v. Walker were that after the creation of the Floral Heights Addition in the City of Wichita Falls, the developers set aside 18 blocks to be subject to restrictive covenants for ten years from date of purchase, that the land would be used for residential purposes only, that there would be one residence to two whole lots, and that the cost to construct the residence would be at least $3,000. This court in its opinion referred to the 18 blocks as the “restricted district” and referred to the plan as “[tjhis general scheme or plan of creating a restricted residence district.” 112 Tex. at 42, 244 S.W. at 497. Thus a general scheme or .plan need not apply to the whole tract or subdivision. In Hooper v. Lottman, from which we quoted with approval, the restriction had been that no barns would be constructed within 60 feet of a specific street. The number of feet varied in each deed, so there was no absolute uniformity, but the “restricted district” to which the plan applied was obviously lots with frontage on that street. Similarly, in upholding the trial court’s refusal to enforce restrictive covenants on other grounds, in Canyon v. Ferguson, 190 S.W.2d 831, 834 (Tex.Civ.App.—Fort Worth 1945, no writ), the appellate court wrote it was “not essential that there be a general scheme of restricting all of the lots in the additions. Valid restrictions could result from a scheme to restrict the lots in only one block, or those facing on only one street.”

Likewise, in Crump v. Perryman, 193 S.W.2d 233, 235 (Tex.Civ.App.—Dallas 1946, no writ), the court wrote, “[W]e know of no rule of law requiring the particular improvement district to embrace an addition in its entirety,” citing Curlee. Similar statements concerning the extent of the “restricted area” appear in Lehmann v. Wallace, 510 S.W.2d 675, 681 (Tex.Civ.App.—San Antonio 1974, writ ref’d n.r.e.), and Cambridge Shores Homeowners Ass’n v. Spring Valley Lodge Co., 422 S.W.2d 10, 14 (Tex.Civ.App.—Dallas 1967, no writ). Finally, in a case tried on the implied reciprocal negative easement theory, we expressly approved an opinion that found no error in the jury instruction requiring that the restrictions be “substantially uniform, and that they be imposed on substantially all the lots in the restricted area.” Bethea v. Lockhart, 127 S.W.2d 1029, 1032 (Tex.Civ.App.-San Antonio 1939, writ ref’d)(emphasis added).

The language from the Texas cases suggesting that the restricted district need not be the whole subdivision is in agreement with decisions from other states. In First Security National Bank & Trust Co. v. Peter, 456 S.W.2d 46 (Ky.Ct.App.1970), the court found a restricted district comprising less than the whole subdivision including most lots that faced a particular street. Even more in point is the Kentucky case of Bellemeade Co. v. Priddle, 503 S.W.2d 734 (Ky.Ct.App.1974). There the owners had platted and recorded sections I, II, III, IV and V of the Bellemeade subdivision. Sections I, II, III and IV had been marketed as restricted to one-family residential uses, but section V was a tract of approximately 12 acres adjacent to a major United States highway, different in character from the other sections. When the plat of section I went to record, there was a contract with the real estate firm marketing the subdivision which gave it the exclusive right to sell residential lots, but there was a sepa*472rate provision giving those agents the exclusive right to sell, lease or develop section V as multi-family duplex housing, a shopping center and parking area. There was evidence of negotiations about section V with prospective buyers or developers for commercial enterprises both before and after the platting of the subdivision. After reviewing the marketing evidence, the court concluded there was no evidence that any lots in section Y were offered for sale for residential purposes or evidence of confusion as to the developers’ intent.1 The court held that the implied reciprocal negative easement doctrine applied as to retained lots in sections I through IV, but that section V was not part of the restricted area and could be sold for construction of a proposed Holiday Inn motel.

In Weber v. Les Petite Acadamies, Inc., 490 S.W.2d 278 (Mo.App.1973), the original grantor had platted a subdivision composed of Lot A, Lot B, and a large number of numbered lots. All numbered lots sold were conveyed with deeds restricting them to residential purposes. It was conceded there was a common plan or scheme of development, but the owner contended Lots A and B were not part of the restricted area. On summary judgment evidence that the common grantor did not intend Lots A and B to be restricted to residential dwellings and that the character of Lots A and B was totally different from that of the rest of the lots in the subdivision in that Lots A and B were larger, abutted on a busy traffic artery, and were lettered on the plat rather than numbered, the appellate court held that summary judgment was improper because substantial factual questions were raised whether Lots A and B were part of the restricted area. Likewise, in Sharts v. Walters, 107 N.M. 414, 759 P.2d 201 (N.M.App.1988), the owner had platted a Tract A consisting of a 60-acre tract and a Tract B consisting of a 15.044 acre tract. All lots in Tract A (except for two acres where there was a preexisting restaurant) had been sold with residential restrictions. The appellate court upheld the trial court finding that Tract B was not burdened by implied reciprocal restrictions, holding that whether Tract B was part of the restricted area under the plan of development was a fact question of what was intended to be covered by the restrictions. The New Mexico court cited the Texas Lehmann v. Wallace case, which we discussed above. Finally, by way of further example, in Duvall v. Ford Leasing Development Corp., 220 Va. 36, 255 S.E.2d 470 (1979), the court held that when a larger tract is subdivided into sections and lots in stages, for purposes of the implied reciprocal negative easement doctrine, each separate recording created a separate and distinct subdivision with its own set of restrictions benefiting and burdening only the land in that particular subdivision.2 We have concluded that the weight of authority supports our conclusion that the restricted district need not be the whole subdivision nor include the whole retained tract.

We have reviewed the record and find there is some evidence to support all trial court findings that were attacked in the court of appeals. Because there were factual sufficiency points raised in the court of appeals upon which that court has not ruled, we remand this cause to the court of appeals for further consideration consistent with this opinion.

GONZALEZ, J., notes his dissent. (Opinion to follow).

DOGGETT, J., not sitting.

GONZALEZ, Justice,

dissenting.

For the reasons stated in the court of appeals opinion, I dissent.

Chief Justice MULLARKEY

delivered the Opinion of the Court.

The history of this property rights controversy began before Colorado’s statehood, at a time when southern Colorado was part of Mexico; at a time when all of the parties’ lands were part of the one million acre Sangre de Cristo grant, an 1844 Mexican land grant. Here, we determine access rights of the owners of farmlands in Costilla County to a mountainous parcel of land now known as the Taylor Ranch. As successors in title to the original settlers in the region, the landowners exercised rights to enter and use the Taylor Ranch property for over one hundred years until Jack Taylor fenced the land in 1960 and forcibly excluded them. These rights, they assert, derive from Mexican law, prescription, and an express or implied grant, and were impermissibly denied when the mountain land was fenced.

We are reviewing this case for the second time in this protracted twenty-one year litigation. In the first phase of this litigation, the trial court dismissed the plaintiffs’ claims, holding that a federal decision in the 1960s on the same issue barred their suit. We reversed and remanded, holding that the notice given in the federal case did not comport with due process. The subject matter of the current appeal is the landowners’ substantive claims of rights. The trial court and the court of appeals held that the landowners failed to prove rights on any of their three theories.

We find that evidence of traditional settlement practices, repeated references to settlement rights in documents associated with the Sangre de Cristo grant, the one hundred year history of the landowners’ use of the Taylor Ranch, and other evidence of necessity, reliance, and intention support a finding of implied rights in this case. While we reject the landowners’ claims for hunting, *943fishing, and recreation rights, we find that the landowners have rights of access for grazing, firewood, and timber through a prescriptive easement, an easement by estop-pel, and an easement from prior use. Furthermore, we retain jurisdiction in order to examine the trial court’s due process determination.

I. Facts and Prior Proceedings

In 1844, the governor of New Mexico granted two Mexican nationals a one million-acre land grant, located mainly in present-day southern Colorado (Sangre de Cristo grant), for the purpose of settlement. The original grantees died during the war between the United States and Mexico. The land was not settled in earnest until after the cessation of the war, and Charles (Carlos) Beaubien then owned the grant.

In 1848, the United States and Mexico entered into the Treaty of Guadalupe Hidal-go, ending the war between the two countries. Treaty of Peace, Friendship, Limits, and Settlement (Treaty of Guadalupe Hidal-go), February 2, 1848, U.S.-Mex., 9 Stat. 922. Pursuant to the treaty, Mexico ceded land to the United States, including all of California, Nevada, and Utah; most of New Mexico and Arizona; and a portion of Colorado. The United States agreed to honor the existing property rights in the ceded territory. Relevant to the Sangre de Cristo grant, Congress asked the Surveyor General of the Territory of New Mexico to determine what property rights existed at the time of the treaty. On the Surveyor General’s recommendation, Congress confirmed Carlos Beaubien’s claim to the Sangre de Cristo grant in the 1860 Act of Confirmation. 12 Stat. 71 (1860).

In the early 1850s, Beaubien successfully recruited farm families to settle the Colorado portion of the Sangre de Cristo grant. He leased a portion of his land to the United States government to be used to establish Fort Massachusetts and recruited farmers to settle other areas. The settlement system he employed was common to Spain and Mexico: strips of arable land called vara strips were allotted to families for farming, and areas not open for cultivation were available for common use. These common areas were used for grazing and recreation and as a source for timber, firewood, fish, and game.

In 1863, Beaubien gave established settlers deeds to their vara strips. That same year, Beaubien executed and recorded a Spanish language document that purports to grant rights of access to common lands to settlers on the Sangre de Cristo grant (Beaubien Document). In relevant part, this document guarantees that “all the inhabitants will have enjoyment of benefits of pastures, water, firewood and timber, always taking care that one does not injure another.”

A year later, Beaubien died. Pursuant to a prior oral agreement, his heirs sold his interest in the Sangre de Cristo grant to William Gilpin, who was Colorado’s first territorial governor. The sales agreement (Gil-pin agreement) stated that Gilpin agreed to provide vara strip deeds to settlers who had not yet received them. The agreement further stated that Gilpin took the land on condition that certain “settlement rights before then conceded ... to the residents of the settlements ... shall be confirmed by said William Gilpin as made by him.”

In 1960, Jack Taylor, a North Carolina lumberman, purchased roughly 77,000 acres of the Sangre de Cristo grant (mountain tract) from a successor in interest to William Gilpin. Taylor’s deed indicated that he took the land subject to “claims of the local people by prescription or otherwise to right to pasture, wood, and lumber and so-called settlement rights in, to, and upon said land.”

Despite the language in Taylor’s deed, he denied the local landowners access to his land and began to fence the property. Taylor then filed a Torrens title action in the United States District Court for the District of Colorado to perfect his title (Torrens action).1 Taylor v. Jaquez, No. 6904 (D.Colo. *944Oct. 5, 1965). The district court found that the local landowners did not have any rights to the mountain tract; the Tenth Circuit Court of Appeals affirmed. Sanchez v. Taylor, 377 F.2d 733 (10th Cir.1967).

In 1973, Taylor purchased an adjoining, roughly 2,500 acre parcel that was also part of the Sangre de Cristo grant (Salazar estate). Taylor’s predecessor in title to the Salazar estate had also filed a Torrens title action in 1960 which determined that local landowners had no rights in the estate. Together, the mountain tract and the Salazar estate are known as the Taylor Ranch.

The current case began in 1981. In that year a number of local landowners filed suit in Costilla County District Court. The landowners asserted that they had settlement rights to the Taylor Ranch and that Taylor had impermissibly denied those rights.2 The court held that the doctrine of res judicata barred the suit because the Salazar Torrens action and the Sanchez decision regarding Taylor’s Torrens action were binding upon the plaintiffs. Rael v. Taylor, No. 81CV5 (Costilla Co. Dist. Ct. Sept. 22, 1986) (Judgment for Defendant on Motion for Judgment on the Pleadings or for Summary Judgment).

The court of appeals affirmed. Rael v. Taylor, 832 P.2d 1011, 1014 (Colo.App.1991). This court granted certiorari and reversed and remanded, questioning the constitutional adequacy of the publication notice in the Torrens action. Rael v. Taylor, 876 P.2d 1210, 1228 (Colo.1994). We directed the trial court to determine which of the plaintiffs received adequate notice in the Torrens action and to hold a trial on the merits for those who did not have proper notice. Id.

On remand, the trial court granted Taylor’s motion for summary judgment on the Mexican law claim. The court then bifurcated the proceedings: it determined the due process and class action certification issues before holding a trial on the merits. During the due process phase, the court dismissed most of the plaintiffs. The court determined that seven of the plaintiffs could pursue their claims regarding the mountain tract and that three of the plaintiffs could proceed with their claims regarding the Salazar estate.3 Without further hearing, the court denied class certification. The court then held a trial on the merits.

After the trial, the court made a finding of fact that the landowners or their predecessors in title had “grazed cattle and sheep, harvested timber, gathered firewood, fished, hunted and recreated on the land of the defendant from the 1800s to the date the land was acquired by the defendant, in 1960.” The trial court further found that the community referred to Taylor Ranch as “open range,” and that prior to 1960, the landowners “were never denied access to the land.” The court also stated that it did “not dispute” that the settlers could not have survived without use of the mountain area of the grant.

Despite theses findings, the court determined that the landowners had not proved prescriptive rights because their use was not adverse. The court further held that the Beaubien Document was not an effective express grant of rights because it did not identify the parties to the rights or the locations where the rights should be exercised. Regarding an implied grant by Beaubien, the court concluded that Colorado law did not recognize the implied rights the landowners claimed. The landowners appealed both the due process determination and the rulings on their claim of rights.

The court of appeals affirmed. Lobato v. Taylor, 13 P.3d 821 (Colo.App.2000). The court agreed with the trial court’s conclu*945sions regarding all three of the landowners’ theories. Regarding an express grant of rights, the court of appeals engaged in a technical application of the 1863 property laws of the Colorado Territory. Id. at 831. The court concluded that the document included neither the “Christian and surnames” of the grantees nor an accurate description of the property to be burdened. Id. Furthermore, the court of appeals noted that that because the document does not use the words, “and heirs and assigns” it does not indicate that Beaubien intended any rights to run with the land. Id. Because the court rejected all of the landowners’ substantive claims, the court did not reach the question of whether the trial court erred in its due process decision.

We granted certiorari.

II. Analysis

The landowners claim rights to graze livestock, gather firewood and timber, hunt, fish, and recreate. Before discussing the sources of the settlement rights, we characterize the claimed rights in order to determine the rules of law that govern them.

A. The Rights at Issue

The parties, at various points in the voluminous briefing of this twenty-one year-old litigation, agree that the rights at issue are most appropriately characterized as profits á prendre. A profit á prendre — in modern parlance, a profit — “is an easement that confers the right to enter and remove timber, minerals, oil, gas, game, or other substances from land in the possession of another.” Restatement (Third) of Property: Servitudes § 1.2(2)(1998) [hereinafter Restatement]. Thus, a profit is a type of easement.

This court has described an easement as “a right conferred by grant, prescription or necessity authorizing one to do or maintain something on the land of another which, although a benefit to the land of the former, may be a burden on the land of the latter.” Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1234 (Colo.1998)(quotation marks omitted).

An easement can be in gross or appurtenant. An easement in gross does not belong to an individual by virtue of her ownership of land, but rather is a personal right to use another’s property. Lewitz v. Porath Family Trust, 36 P.3d 120, 122 (Colo.App.2001). An easement appurtenant, on the other hand, runs with the land. It is meant to benefit the property, or an owner by virtue of her property ownership. See Lazy Dog, 965 P.2d at 1234. An easement is presumed to be appurtenant, rather than in gross. Lewitz, 36 P.3d at 122; Restatement, supra, § 4.5(2).

In this case, the landowners allege that the settlement rights were to be used in connection with their land. They argue that the firewood was used to heat their homes, the timber to frame their adobe houses, and the grazing necessary to the viability of their farms. The landowners also assert that the settlement rights were granted to their predecessors in title by virtue of their interest in their vara strips and were in fact a necessary incentive for settlement in the area.

We conclude that the rights the landowners are claiming are best characterized as easements appurtenant to the land. We reach this conclusion from the evidence that under Mexican custom access to common land was given to surrounding landowners, the evidence that this access was used to benefit the use of the land, and the presumption in favor of appurtenant easements.

Having established the nature of the rights at issue, we now turn to the sources of these rights.

B. Sources of the Rights

The landowners argue that their settlement rights stem from three sources: Mexican law, prescription, and an express or implied grant from Beaubien.

Regarding the Mexican law claim, the landowners claim that community rights to common lands not only are recognized by Mexican law, but also are integral to the settlement of an area. The landowners further point out that in the Treaty of Guadalupe Hidalgo, the United States government agreed that the land rights of the residents *946of the ceded territories would be “inviolably respected.” Under the landowners’ theory, the treaty dictates that the court apply Mexican law to the Taylor Ranch and accordingly recognize the settlement rights.

The landowners further argue that use rights can be found via prescription. For this claim, they point to their regular use of the Taylor Ranch land for over one hundred years until the area was fenced in 1960.

Lastly, the landowners assert that their use rights were obtained by either an express or implied grant from Carlos Beaubien. For this claim, the landowners rely primarily on the Beaubien Document.

The trial court dismissed the Mexican law claim on motion for summary judgment, and after a trial on the merits, rejected the two remaining claims. The court of appeals affirmed. The court of appeals held that the Mexican law claim failed because whatever rights may have existed at the time of the Treaty of Guadalupe Hidalgo were subsequently extinguished by Congress’s 1860 Act of Confirmation. Lobato, 13 P.3d at 829. The court further held that the landowners could not claim prescriptive rights because their use of the Taylor Ranch was not adverse. Id. at 834-35. Lastly, the court held that the Beaubien Document fails as an express grant of rights and that Colorado does not recognize implied easements in the form of profits. Id. at 832-33.

We agree that the landowners cannot claim rights under Mexican law. Their predecessors in title did not settle on the Sangre de Cristo grant until after the land was ceded to the United States4 and thus their use rights developed under United States law. Mexican land use and property law are highly relevant in this case in ascertaining the intentions of the parties involved, see infra. However, because the settlement of the grant occurred after the land was ceded to the United States, we conclude that Mexican law cannot be a source of the landowners’ claims.

We disagree, however, with the court of appeals’ resolution of the landowners’ other claims. While the Beaubien Document cannot support an express grant of rights, when coupled with the Gilpin agreement and other evidence, it supports a finding of a prescriptive easement, an easement by estoppel, and an easement from prior use.

1. The Beaubien Document

As evidence of a grant of rights from Carlos Beaubien, the landowners rely primarily on the Beaubien Document. The document was written by Beaubien in 1863, one year before his death.

One English translation of the document reads, in part:

Plaza of San Luis de la Culebra, May 11, 1863.

It has been decided that the lands of the Rito Seco remain uncultivated for the benefit of the community members (gente) of the plazas of San Luis, San Pablo and Los Ballejos and for the other inhabitants of these plazas for pasturing cattle by the payment of a fee per head, etc. and that the water of the said Rito remains partitioned among the inhabitants of the same plaza of San Luis and those from the other side of the vega who hold lands almost adjacent to it as their own lands, that are not irrigated with the waters of the Rio Culebra. The vega, after the measurement of three acres from it in front of the chapel, to which they have been donated, will remain for the benefit of the inhabitants of this plaza and those of the Culebra as far as above the plaza of Los Balle-jos .... Those below the road as far as the narrows will have the right to enjoy the same benefit.... [No one may] place any obstacle or obstruction to anyone in the *947enjoyment of his legitimate rights .... Likewise, each one should take scrupulous care in the use of water without causing damage with it to his neighbors nor to anyone. According to the corresponding rale, all the inhabitants will have enjoyment of benefits of pastures, water, firewood and timber, always taking care that one does not injure another.

(Emphases added.)

The landowners assert that this document evidences an express grant of settlement rights on the Taylor Ranch land. The trial court concluded that the Beaubien Document did not vest any rights in the Taylor Ranch. The court noted that although the document lists rights of pasture, water, firewood, and timber, the only locations specified for access are the Rito Seco and the vega, two areas that the parties agree are not part of the Taylor Ranch. The trial court did admit extrinsic evidence to determine whether there was a “latent ambiguity” in the document. However, because the court ultimately found that the document was unambiguous, it ruled that extrinsic evidence could not be considered in interpreting the document.

The court of appeals affirmed. Lobato, 13 P.3d 821. The appeals court agreed that the Beaubien Document was ultimately unambiguous and that the trial court properly treated the extrinsic evidence of Beaubien’s intent. Id. at 832. The court then applied 1863 Colorado property law and concluded that the Beaubien Document did not meet the formal requirements for conveying rights to the landowners’ predecessors in title. Loba-to, 13 P.3d at 831. Moreover, the court held that profits must be expressly granted and thus rejected any claim of implied rights. Id. at 832-33.

We agree that the Beaubien Document does not meet the formal requirements for an express grant of rights. However, we find that the document, when taken together with the other unique facts of this case, establishes a prescriptive easement, an easement by estoppel, and an easement from prior use.

Extrinsic evidence is relevant in interpreting the Beaubien Document. In Lazy Dog, we articulated when a court could examine extrinsic evidence in order to ascertain the nature of an easement. In that case, we expressly followed the Restatement and concluded that “[o]ur paramount concern in construing a deed is to ascertain the intentions of the parties.” Lazy Dog, 965 at 1235. We also recognized that “circumstances surrounding the grant may be relevant to interpreting the language of the grant.” Id. at 1236; see also Restatement, supra, § 4.1(l)(noting that an easement “should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding creation of the servitude, and to carry out the purpose for which it was created”). Moreover, the question of whether or not the document is ambiguous “may be answered by reference to extrinsic evidence.” Lazy Dog, 965 P.2d at 1235.

Here, we look to extrinsic evidence to construe the Beaubien Document for two reasons. First, as Lazy Dog tells us, extrinsic evidence may reveal ambiguities. Second, the document is ambiguous on its face with respect to where the landowners could exercise their rights.

Lazy Dog tells us that extrinsic evidence may reveal ambiguities in modern documents; that principle can be only more true with respect to the Beaubien Document. We are attempting to construe a 150 year-old document written in Spanish by a French Canadian who obtained a conditional grant to an enormous land area under Mexican law and perfected it under American law. Beau-bien wrote this document when he was near the end of his adventurous life in an apparent attempt to memorialize commitments he had made to induce families to move hundreds of miles to make homes in the wilderness. It would be the height of arrogance and nothing but a legal fiction for us to claim that we can interpret this document without putting it in its historical context.

For the most part, the document is reasonably specific in identifying places where *948rights are to be exercised.5 That is not true with respect to the rights asserted by the landowners. The key language reads: “According to the corresponding rule, all the inhabitants will have enjoyment of benefits of pastures, water, firewood and timber, always taking care that one does not injure another.”

Thus, given the specificity of other parts of the document, the lack of specificity in this sentence creates an ambiguity. We cannot determine from the face of the document what lands were burdened by the rights Beaubien conveyed to the first settlers.

Following Lazy Dog, we look to the extrinsic evidence in this case. Amici assert that the contrast between the specificity of the majority of the Beaubien Document and the casual reference to the settlement rights at the end of the document can best be explained by the events surrounding the execution of the document. Beaubien penned the document at a time when settlement was moving to the northern area of the grant, which lies northwest of the Taylor Ranch area. At that time, he wrote the Beaubien Document to establish common rights to the area in and around San Luis and at the same time memorialize settlement rights that had already been in existence in the more southern areas of the grant, where Taylor Ranch is located.

We agree with the amici. From the trial court findings, expert testimony, the documents associated with the grant, and a review of the settlement system under which Beaubien and the settlers were operating, we draw two conclusions. First, we conclude that the location for the settlement rights referenced in the Beaubien Document is the mountainous area of the grant on which Taylor Ranch is located. Second, we conclude that Beaubien meant to grant permanent access rights that run with the land.

We first discuss the location for the rights. The evidence in this case establishes that the reference to pasture, water, firewood, and timber in the Beaubien Document refers to access on the mountain area of the grant of which Taylor Ranch is a part.

First, the trial court found that the landowners or their predecessors in title accessed the Taylor Ranch land for over one hundred years to exercise the rights outlined in the Beaubien Document. This strongly suggests that the parties understood that the Taylor Ranch land was the location of their access rights.

Second, experts testified that the resources listed in the document were only available in the Taylor Ranch area of the grant. Expert testimony established that summer grazing, wood, and timber were only available in the mountain area of the grant.6 This is perhaps the most significant evidence that points to the Taylor Ranch as the location of the rights.

Third, the landowners’ access rights are expressly mentioned in Taylor’s deed. The deed subjects his property interest not only to “rights of way of record,” but also to “all rights of way heretofore located and now maintained and used on, through, over, and across the same.” It further subjects the conveyance to‘“claims of the local people by prescription or otherwise to rights to pasturage, wood, and lumber and so-called settlement rights in, to, and upon said land.” (Emphasis added.) This resolves any doubt that the access rights were meant to burden Taylor’s land.

There is also ample evidence that the document was meant to create permanent *949rights that run with the land. Both the settlement system under which Beaubien and the settlers were operating and the Gilpin agreement are strong evidence of this.

Access to common areas was an integral feature of the settlement system under which the settlers and Beaubien were operating. Under Spanish and Mexican law, the government awarded community and private grants for the purpose of settling the frontier. See Malcolm Ebright, Land Grants and Lawsuits in Northern New Mexico 23 (1994).

The Mexican grants were issued under specific procedures. The governor would refer a petition to the local alcalde (mayor) for his recommendations on whether the grant should be made. Availability of pasture, water, and firewood on common lands was among the primary considerations:

The primary considerations were whether the land was being used or claimed by others, the sufficiency of the petitioner’s qualifications, and in the case of a community grant, the availability of resources like pasture> water, and firewood.

Id. (emphasis added). Large private grants were made during the Mexican period. If the recommendation from the alcalde was favorable, the governor would make the private grant to an individual. The individual’s ownership, however, was conditional upon successful settlement of the grant.

Agriculture and stock raising were the primary means of subsistence for the settlers on the grants. Id. at 25. The settlers supplemented their irrigated plots by use of commonly accessible community or private grant lands for gathering firewood and grazing livestock:

The pattern of land tenure and use was the foundation for these tightly knit communities. Produce from their small irrigated plots supplemented by the use of common lands for gathering firewood and for grazing a few head of livestock furnished the bare necessities for the village families, a lifestyle to which they were accustomed.

Ira G. Clark, Water in New Mexico, A History of Its Management and Use 34 (1987) (emphasis added).

Under colonial and Mexican law, the difference between a community grant7 and a private grant was that the common lands of the community could not be sold; the grantee of a private grant could sell the lands. See Ebright, supra, at 25.

Expert reports submitted in this ease reveal that Beaubien and the original settlers operated under this traditional system. Common areas were not only a typical feature but a necessary incentive for settlement.

As discussed above, because the Sangre de Cristo grant was part of the United States at the time permanent settlement began, this Mexican settlement tradition is not the source of the landowners’ rights. However, because the settlers and Beaubien were so familiar with the settlement system, it is highly relevant in ascertaining the parties’ intentions and expectations.

The express language in the Gilpin agreement, recorded one year after the Beaubien Document, further supports the conclusion that the rights referenced in the Beaubien Document were meant to burden the land. Gilpin was Beaubien’s immediate successor as owner of the grant land. The Gilpin agreement contains an express condition confirming the settlers’ rights:

[Gilpin agrees to the] express condition that the settlement rights before then conceded by said Charles Beaubien to residents of Costilla, Culebra & Trinchera, within said Tract included, shall be confirmed by the said William Gilpin as confirmed by him.

*950This deed also recites that the settlers paid consideration to Beaubien for those rights and that Gilpin succeeds to the settlers’ obligations to Beaubien, including payments due on promissory notes held by Beaubien and his agents. The Gilpin agreement is in Taylor’s chain of title and Taylor’s own deed expressly refers to the landowners’ settlement rights.

Thus, we conclude both that rights were granted and exercised from the time of settlement and that the Beaubien Document memorialized them. Moreover, we conclude that the location for the rights is the mountain portion of the grant of which Taylor Ranch is a part, and that the benefit and burden of these rights were meant to run with the land.

We do not take issue with the court of appeals’ application of 1863 Colorado property law to the Beaubien Document. It is not surprising that Carlos Beaubien failed to comply with the nuances and technical requirements of the conveyance of real property rights. Beaubien’s failure to comply with the territorial property law, however, is not the end of the inquiry. The territorial supreme court made it clear that rights to access and use the property of another landowner could be found in the law of implied easements. Yunker v. Nichols, 1 Colo. 551 (1872). The law of implied easements recognizes that rights may be implied even though they were not properly expressly conveyed. This well-established area of property law is concerned with honoring the intentions of the parties to land transactions and avoiding injustice.

2. Implied Grant of Settlement Rights

The evidence in this case overwhelmingly supports the conclusion that the landowners have implied rights in the Taylor Ranch. We first review the law of implied servitudes. Second, we discuss how traditional settlement practices, repeated references to settlement rights in documents associated with the Sangre de Cristo grant, the hundred year history of the landowners’ use of the Taylor Ranch, and other evidence of necessity, reliance, and intention support a finding of implied rights in this case.

a. Implied Servitudes

An easement is created if the owner of the servient estate either enters into a contract or makes a conveyance intended to create a servitude that complies with the Statute of Frauds or an exception to the Statute of Frauds. Restatement, supra, § 2.1.

Servitudes that are not created by contract or conveyance include servitudes created by dedication, prescription, and estoppel. Those which are not created by express contract or conveyance are the implied ser-vitudes, which may be based on prior use, map or boundary descriptions, necessity, or other circumstances surrounding the conveyance of other interests in land, which give rise to the inference that the parties intended to create a servitude.

Id. § 2.8 cmt. b; see also Wright v. Horse Creek Ranches, 697 P.2d 384, 387-88 (Colo.1985)(noting that an easement may be established by “necessity; by preexisting use; by express or implied grant; or by prescription”); Wagner v. Fairlamb, 151 Colo. 481, 484, 379 P.2d 165, 167 (1963)(noting that implied easements are “not expressed by the parties in writing, but ... arise[ ] out of the existence of certain facts implied from the transaction”).

Easements can be implied in a number of situations. Easements created by prescription, Restatement, supra, § 2.17; easements by estoppel, id. § 2.10; and easements implied from prior use, id. § 2.12, are the most relevant to this case. We discuss each of these in turn, discussing both Colorado ease law and the Restatement, which is consistent with our precedent.

An easement by prescription is established when the prescriptive use is: 1) open or notorious, 2) continued without effective interruption for the prescriptive period, and 3) the use was either a) adverse or b) pursuant to an attempted, but ineffective grant. Id. § 2.17, § 2.16.

A court can imply an easement created by estoppel when 1) the owner of the servient estate “permitted another to use *951that land under circumstances in which it was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked,” 2) the user substantially changed position in reasonable reliance on that belief, and 3) injustice can be avoided only by establishment of a servitude. Id. § 2.10. Whether reliance is justified depends upon the nature of the transaction, including the sophistication of the parties. Id. § 2.9 cmt. e. The Restatement does not have a requirement of deception, neither does Colorado.8 See Graybill v. Corlett, 60 Colo. 551, 154 P. 730 (1916); Hoehne Ditch Co. v. John Flood Ditch Co., 68 Colo. 531, 191 P. 108 (1920). An easement by estoppel is an equitable remedy. It recognizes that when a landowner induces another to change position in reliance upon his promise, he is estopped from then denying the existence of the rights simply because they did not meet the formal conveyance rules. The rule “is founded on the policy of preventing injustice.” Id. § 2.10.

Colorado law has repeatedly recognized this equitable right. For example, in Gray-bill, we examined a landowner’s right to maintain a water ditch across the land of his neighbor. The owner of the servient estate had granted the owner of the dominant estate the right to establish a ditch across his land. This was an oral promise; the parties did not comply with conveyance and recording formalities. 60 Colo. at 552, 154 P. at 730. In reliance on the parol agreement, the owner of the dominant estate used the ditch as the irrigation source for his land and cleaned, repaired, and made improvements to the ditch. Id. On these facts, we noted that, “[i]t is too well settled to require discussion that under the circumstances above stated a licensee holds under an irrevocable license, and his right is as valid as if acquired by grant.” Id. at 553, 154 P. at 731; see also Hoehne Ditch Co., 68 Colo. 531, 191 P. 108 (applying the “well settled” rule that “although an oral contract relating to realty is within the statute [of frauds], where a consideration has passed, and it has been fully performed by both parties and possession taken in pursuance thereof, the bar of the statute is removed and equity will enforce the right thus acquired”).

An easement implied from prior use is created when 1) the servient and dominant estates were once under common ownership, 2) the rights alleged were exercised prior to the severance of the estate, 3) the use was not merely temporary, 4) the continuation of this use was reasonably necessary to the enjoyment of the parcel, and 5) a contrary intention is neither expressed nor implied. Restatement, supra, § 2.12; see also Lee v. Sch. Dist. No. R-1, 164 Colo. 326, 435 P.2d 232, 235-36 (1967); Proper v. Greager, 827 P.2d 591, 593 (Colo.App.1992). The rationale for this servitude is as follows:

The rule stated in this section is not based solely on the presumed actual intent of the parties. It furthers the policy of protecting reasonable expectations, as well as actual intent, of parties to land transactions.

Restatement, supra, § 2.12 cmt. a.

Colorado has long applied this implied easement. This court has found an easement from prior use in Lee. In Lee, the owner of one parcel of land claimed a right of way across his neighbor’s land to access his property. The servient and dominant estates had once been under common ownership and this right of way was used before the severance of title. Seven years after the severance of title, the defendant bought the servient estate and attempted to block the right of way, claiming a lack of an enforceable agreement. This court found that an easement from prior use had been established. Lee, 164 Colo. at 333, 435 P.2d at 236.

Similarly, the court of appeals found an easement from prior use in Proper. There, the plaintiff landowner used his neighbor’s land to access his property. This use had begun when the two plots were under common ownership. Although the neighbor allowed this use, there was no formal agreement. The neighbor sought to rescind his permission after twenty-five years of the *952easement’s use, and to construct a fence. Proper 827 P.2d at 592. The court found that under these facts, an easement from prior use had been established. Id. at 594.

Having outlined the law of implied easements, we now turn to the facts of this case.

b. Application to the Landowners’ Claims

Despite the long history of implied easements in Colorado, the court of appeals in this case rejected the landowners’ claims of an implied easement. The court did so because it believed that, although easements in the form of access rights could be implied, easements in the form of profits could not. Lobato, 13 P.3d at 833. In reaching this conclusion, the court misapplied a 1964 decision of this court, Dawson v. Fling, 155 Colo. 599, 396 P.2d 599 (1964).

In Dawson, the Flings claimed easement rights to a lake owned by a corporation. The document establishing the rights was a deed which read, in part, that the lake could be used “for boating and swimming purposes, for the use of said grantees by themselves, their heirs and assigns, their servants, agents, friends, guests, and whomever they may select.” Id. at 602, 396 P.2d at 601. Although the deed specified boating and swimming rights, the Flings petitioned the court to find that they had the right to fish as well. This court concluded that the language of the conveyance clearly limited the rights to boating and swimming and thus declined to imply fishing rights as well. Id. at 604, 396 P.2d at 602.

In dicta, this court asserted that “[a] right to profits á prendre must be expressly granted.” Id., 396 P.2d at 601. However, from the circumstances of the case it is clear that this court declined to find implied rights because the deed of conveyance expressly limited the rights: “A court cannot rewrite a contract and thereby change its terms when it is plain, clear and unambiguous.” Id. at 604-05, 396 P.2d at 602. In Dawson, then, a crucial element of an implied easement was missing because a contrary intention was expressly stated in the deed. For that reason, we declined to imply additional profits in Dawson.

Although this court has not addressed implied profits for over thirty-five years, there is a modern trend to apply the same rules to easements of access and to profits. See, e.g., State v. Kortge, 84 Or.App. 153, 733 P.2d 466, 469 (1987)(noting that “[wjhether defendants’ rights are in the nature of a profit á prendre or an easement, the interests in this case are governed by the same general rules”); Figliuzzi v. Carcajou Shooting Club, 184 Wis.2d 572, 516 N.W.2d 410, 415 (1994)(ap-plying a statutory rule of easements to profits in part because the court was persuaded by the Restatement of Property § 450 Special Note (1944), which states that it treats “easements” and “profits” the same because “in no case was there a rule applicable to one of these interests which was not also applicable to the other”).

The Restatement explains that, although some profits such as mineral and water rights9 have specific rules, generally as between easements in the form of access rights and easements in the form of profits, “there are no doctrinal differences between them.” Restatement, supra, § 1.2 reporter’s note.10 “Generally, the rules governing creation, interpretation, transfer, and termination of easements and profits are the same in American law.” Id. § 1.2 cmt. e.

Easements and profits are treated equally because the same public policy and practical considerations that underlie implied rights of *953access also underlie implied profits. A recognition that parties do not always comply with strict rules of express conveyance, a desire to effectuate the intent of the parties, and the aim of fairness apply equally to easements and profits.

Colorado law is replete with precedent that reflects a strong policy to be true to parties’ intentions and recognizes that Colorado’s unique history and geography further necessitate judicial recognition of implied rights in land. See, e.g., Roaring Fork Club v. St. Jude’s Co., 36 P.3d 1229, 1231 (Colo.2001)(noting that “our lawmakers [have] recognized that our arid climate require[s] the creation of a right to appropriate and convey water across the land of another”); Lazy Dog Ranch, 965 P.2d at 1235 (in determining the scope of an easement, noting that the “paramount concern” is to ascertain the intentions of the parties and that when a deed is silent as to a particular right, the court shall look at the circumstances surrounding the transaction); Thompson, 895 P.2d at 540 (in implying an easement, noting that “sound public policy dictates that land should not be rendered unfit for occupancy and that there is a presumption, therefore, that whenever a party conveys property he conveys whatever is necessary for the beneficial use of that property” (quotation marks omitted)); Yunker, 1 Colo. at 554 (noting that certain water rights are necessary for enjoying land and that the law will “imply a grant of such easement where it is especially necessary to the enjoyment of the dominant estate,” and that such rights come not out of the literal terms of the contract, but rather out of “pre-existing and higher authority of laws of nature, of nations, or of the community to which the parties belong”).

Thus, the aim of honoring parties’ intentions and avoiding injustice that the Restatement expresses has long been the goal of Colorado law. Specifically, Colorado has a strong history of implying servitudes based on equitable concerns. As the Restatement concludes, it is arbitrary and inconsistent to apply these principles to easements of access but not to profits.11 Such a limitation would be directly contrary to our legacy of implied easements.

Having concluded that the trial court and court of appeals in this case incorrectly held that Colorado law does not recognize implied easements in the form of profits, we now apply the law of implied easements to the landowners’ claims.

Our review of the record leads us to conclude that there is ample evidence to imply certain rights in the landowners to access and use the Taylor Ranch. The prior unity of title of the landowners’ and Taylor’s land; the necessity of the rights; the significant reliance upon the. promise of these rights; the fact that the rights were exercised for over one hundred years; and fact that these rights were memorialized in the Beaubien Document, the Gilpin agreement, and every deed of conveyance in Taylor’s chain of title, satisfy every element of the Restatement test and the implied easements we recognized in the eases discussed above.

i. Prescriptive Easement

Because Taylor’s deed indicates that Taylor’s ownership of the land is subject to the landowners’ prescriptive rights, we begin with an application of the law of prescriptive easements. The court of appeals in this case concluded that the landowners failed to prove a prescriptive easement claim because their use was not adverse. Lobato, 13 P.3d at 834. The court erred in this respect.

Although adversity is a necessary requisite for adverse possession claims, Smith v. Hayden, 772 P.2d 47, 52 (Colo.1989), it is not required for a prescriptive easement. Courts often find prescriptive easements even when the owner of the ser-vient estate allows the use. Significantly, the Restatement articulates that a prescriptive use is either:

*954(1) a use that is adverse to the owner of the land or the interest in land against which the servitude is claimed, or

(2) a use that is made pursuant to the terms of an intended but imperfectly created servitude, or the enjoyment of the benefit of an intended but imperfectly created servitude.

Restatement, supra, § 2.16.

Although an easement by prescription without adversity has been codified only in the recent restatement, “it has always been present in American servitudes law.” Id. § 2.16 cmt. a. Because many jurisdictions technically required adversity for a prescriptive easement, decisions in those states often used “convoluted explanations” to explain how a permitted use was actually hostile and met the adversity requirement. Id. Some courts acknowledged an exception to the adversity rule in certain circumstances. See, e.g., Nat’l Props. Corp. v. Polk County, 386 N.W.2d 98, 105 (Iowa 1986)(noting that there may be a prescriptive easement even “where the original use was with a servant [sic] owner’s consent”); Kirby v. Hook, 347 Md. 380, 701 A.2d 397, 404 (1997)(applying an exception to the “general rule [that] permissive use can never ripen into a prescriptive easement ... where there has been an attempt to grant an irrevocable easement which is void because of the statute of frauds”). Other jurisdictions, such as Colorado, simply glossed over the adversity requirement without comment. See, e.g., Wright, 697 P.2d at 388 (finding an easement by prescription in the form of a right of way across the servient estate even though the use of the right of way was permitted and ultimately reduced to writing); Proper, 827 P.2d at 595-96 (listing adversity as a requirement of an easement by prescription but then, although the parties stipulated that the use was permissive, finding a prescriptive easement for access and use of a commercial parking lot via a complex application of presumptions).

It has long been established, then, that the element of adversity is not required in all circumstances. It is not required when other evidence makes clear that the parties intend an easement, but fail “because they do not fully articulate their intent or reduce their agreement to writing, or because they fail to comply with some other formal requirement imposed in the jurisdiction.” Restatement, supra, § 2.16, cmt. a. Thus, the court of appeals in the current case erred when it required a finding of adversity in all circumstances.

Having established that adversity is not required when a grant has been imperfectly attempted, we turn to the facts of the current ease. The trial court’s findings of fact and our interpretation of the Beaubien Document fit every element of a prescriptive easement.

First, the use must be open and notorious. There is no doubt that the landowners’ use was well known to Taylor and his predecessors in title. The trial court noted that Taylor’s predecessors in title not only knew of the landowners’ access, but they even went so far as to direct the location of grazing. Most significantly, Taylor and his predecessors in title had express notice of the landowners’ claims of right from the language of their deeds. The use was open and notorious.

Second, the use must continue without effective interruption for the prescriptive period. In Colorado, the statutory period is eighteen years. § 38-41-101, 10 C.R.S. (2001); Proper, 827 P.2d at 595. Here, the trial court explicitly found that the landowners and their predecessors in title “grazed cattle and sheep, harvested timber, gathered firewood, fished, hunted and recreated on the land of the defendant from the 1800s to the date the land was acquired by the defendant, in 1960.” The trial court also found that this access was never denied. This more than satisfies the statutory time period.

Third, the access must either be adverse or pursuant to an intended, but imperfectly executed, grant. Here, the access was permissive, rather than adverse. However, there is ample evidence of an intended grant of these rights. The Beaubien Document, although imperfect as an express grant, evidences Beaubien’s intent to grant rights to the landowners’ predecessors in title (see supra). Moreover, the express language in *955the deeds of conveyance for the Taylor Ranch, from Gilpin ultimately to Taylor, indicate an intention that the rights burden the land.

Thus, the landowners have established a prescriptive claim.12

ii. Easement by Estoppel

The landowners have also established every element of an easement by es-toppel. , First, Taylor’s predecessors in title “permitted [the settlers] to use [the] land under circumstances in which it was reasonable to foresee that the [settlers] would substantially change position believing that the permission would not be revoked.” Restatement, swpra, § 2.10.' The settlers’ reliance was reasonable because rights were expected, intended, and necessary. It was expected because of the Mexican settlement system discussed above. Also discussed above, this settlement system, combined with the actual practices and the deeds associated with the Taylor Ranch, show that rights were intended.

The rights were also necessary. The plaintiffs’ expert, Dr. Marianne Stoller, testified that access to wood was necessary to heat homes, access to timber was necessary to build homes, and access to grazing was necessary for maintaining livestock.13 Moreover, Beaubien included each of these resources in a lease to the United States for the first military post in Colorado. See Le-Roy R. Hafen & Ann W. Hafen, Colorado: A Story of the State and its People 130 (1947). The trial court found that during the 1850s Beaubien executed a lease to the United States government for the maintenance of Fort Massachusetts on grant land. In this lease Beaubien granted the army the right to “pasture, cut grass, timber and collect firewood” on Beaubien’s land. We can safely assume that the United States was more sophisticated in its dealings with Beaubien than were the landowners’ predecessors in title and that it insisted on putting Beau-bien’s promises into writing.14 Under these circumstances, it is reasonable to foresee that that a settler would substantially change position believing that the permission would not be revoked.

The second element, that the user substantially change position in reasonable reliance on the belief, is easily found. The landowners’ predecessors in title settled Beaubien’s grant for him. They moved onto the land and established permanent farms.

The third element, the avoidance of injustice, is also undeniably present. The original Sangre de Cristo grant was given on the condition that it be settled. Indeed, under Mexican law, the grant would have been revoked if settlement did not succeed. The settlers, then, fulfilled the condition of the grant that made Beaubien' fee owner of one million acres of land.

Beaubien attracted settlers to the area by convincing them that he would provide them with the rights they needed for survival. Beaubien knew that families would rely on *956his promises and leave their homes to travel hundreds of miles on foot or horseback to establish new homes.

A condition of the conveyance of Beau-bien’s land, from Gilpin down to Taylor, was that the owner honor these rights. Although these promised rights were exercised for over one hundred years, although these rights were necessary to the settlers’ very existence, and although Taylor had ample notice of these rights, Taylor fenced his land over forty years ago. It is an understatement to say that this is an injustice.

The landowners have established each element of an easement by estoppel.

iii. Easement From Prior Use

Lastly, every element of an easement from prior use has been shown. First, both Taylor’s and the landowners’ lands were originally under the common ownership of Beaubien who owned the entire Sangre de Cristo grant before settlement. See Tameling v. United States Freehold Land & Emigration Co., 2 Colo. 411 (1874).

Second, the rights were exercised prior to the severance of the estate. As discussed above, many of the rights the landowners claim were needed and expected for life in the San Luis Valley. This necessity existed from the first days of settlement — indicating that these rights were exercised prior to severance of title.

The third and fourth prongs — that the use was not merely temporary and is reasonably necessary to the enjoyment of the land — are also easily established. The trial court’s findings of fact establish that the rights were exercised from the time of settlement until Taylor came on the scene. Moreover, as discussed above, the rights were reasonably necessary.

Lastly, no contrary intention is expressed or implied; thus, the fifth element is present. Custom, expectation, practice, and language in the documents and deeds surrounding the Taylor ranch property indicate not only that a contrary intention did not exist, but that the parties affirmatively intended for these rights to exist.

All five elements of an easement from pri- or use have been established.

C. Extent of the Rights

Having found that the landowners have implied profits in the Taylor Ranch, we now must address the scope of those rights. We imply the rights memorialized in the Beau-bien Document. We do so for four reasons.

First, the document is the strongest evidence we have of the parties’ intentions and expectations. Second, the rights in the document were likely the most necessary. Third, the Fort Massachusetts lease lists these same rights. Fourth, the document is the only evidence we have of an attempted express grant. This is particularly important for the prescriptive easement claim. See Restatement, supra, § 2.16 cmt. a.15

Accordingly, we hold that the landowners have implied rights in Taylor’s land for the access detailed in the Beaubien Document — pasture, firewood, and timber. These easements should be limited to reasonable use — the grazing access is limited to a reasonable number of livestock given the size of the vara strips; the firewood limited to that needed for each residence; and the timber limited to that needed to construct and maintain residence and farm buildings located on the vara strips.

III. Remaining Issues

Over the years, a host of contested issues have arisen in this case; many were not addressed on appeal because the court of appeals’ holding that the landowners did not have any rights rendered the ancillary ques*957tions moot. We have reviewed the remaining issues and conclude that the only appellate issue that must be addressed is whether the trial court engaged in the appropriate due process inquiry on remand from Rael.

In Rael, we remanded this case for a determination of which landowners received adequate notice in the Torrens title actions. 876 P.2d 1210. Although in Rael we highlighted facts in the record that indicated Taylor knew that local landowners claimed rights in the land, on remand the trial court found criteria other than landowning disposi-tive. The court dismissed most of the plaintiffs, allowing only seven to pursue their claims regarding the mountain tract and only three to pursue their claims regarding the Salazar estate. This must be reviewed.

As a matter of judicial economy, and as a matter of fairness, given the forty-one year denial of access to the Taylor Ranch and this twenty-one year litigation, we decline to remand this case to the court of appeals for a determination of this issue. Rather, we will revisit the due process issue after full briefing, in a separate opinion. See Ballow v. Phico Ins. Co., 875 P.2d 1354, 1364 (Colo.1993)(retaining jurisdiction rather than remanding to the court of appeals as a matter of judicial economy).

IV. Conclusion

In sum, we imply access rights in the landowners to the Taylor Ranch for reasonable grazing, firewood, and timber. We reject the landowner’s claims for hunting, fishing, and recreation. Before we remand to the trial court for a permanent order of access, additional briefing is necessary in order to determine which landowners received adequate notice in the Taylor and Salazar Torrens actions. The clerk of this court will set a briefing schedule for the parties.

Justice MARTINEZ dissents only as to part II.C.

Justice KOURLIS dissents, and Justice RICE joins in the dissent.

Justice COATS does not participate.

Justice MARTINEZ

dissenting only as to part II.C.

As the opinion by the chief justice correctly notes, this case involves the settlement rights of people who have been largely dispossessed of their rights in land when Taylor fenced the property. There is little dispute that the settlers enjoyed extensive rights in the lands that comprise the Taylor Ranch for about one hundred years. Rather, the dispute concerns the extent of the rights, if any, that survive when we construe settlement rights conceived in a different era pursuant to contemporary standards. In short, the difficulty of this case is that we must address the grave injustices imposed upon the settlers’ successors in interest by interpreting documents from a different era, intended to reflect Beaubien’s intent, through the perspective of modern property law. Nonetheless, equitable principles in our modern jurisprudence, properly construed and applied, permit us to recognize the rights of the settlers and their successors in interest.

Because I concur with the chief justice’s analysis and conclusion that the landowners have access rights through a prescriptive easement, an easement by estoppel, and an easement from prior use, I join to make it the majority opinion and refer to it as such herein. As the majority explains, the Beau-bien document is an imperfect attempt at an express grant of rights clearly “meant to create permanent rights that run with the land,” maj. op. at 948-949; such access rights were an “integral feature of the settlement system under which the settlers and Beau-bien were operating.” Id. at 949. Additionally, the Gilpin agreement provides further support that the settlement rights granted by Beaubien were intended to run with the land because that agreement required that Gilpin take the land on the condition that he recognize and confirm the settlement rights.

I also agree with the majority’s analysis and conclusions regarding the implied servi-tudes upon which it bases its holding. The majority determines that the same rules should be applied to easements and profits and adopts the Restatement’s position that easements by prescription do not always re*958quire a finding of adversity; instead such easements may result from an intended but imperfectly created servitude.

In addition, I agree with the majority’s conclusion that the landowners’ access rights are also found through an easement from prior use and an easement by estoppel: The elements for both of these easements are met in this case. I particularly agree with the majority’s strong language regarding the injustices that are avoided in finding access rights through an easement by estoppel.

In short, I summarize the majority’s analysis, and my support for it, to emphasize the many areas of agreement I have with the majority and the extent to which I concur and join the majority opinion.

However, it is significant to me that the trial court’s findings that the landowners also enjoyed access for fishing, hunting and recreation are supported by the record. As a result, I would apply the reasoning of the majority opinion regarding prescriptive easement, easement by estoppel, and easement from prior use to conclude that the landowners have also established access rights for fishing, hunting, and recreation. Thus, while I join the majority opinion as to its analysis regarding the source of the landowners’ rights, I do not join part II.C. of the majority’s opinion, which excludes fishing, hunting, and recreation rights from its holding. However, I recognize that part II.C. of the chief justice’s opinion is the controlling opinion in this case.

More specifically, though I agree with the majority’s finding that the Beaubien document is an imperfect one and accordingly must be considered alongside extrinsic evidence in order to find the landowners have access rights through a prescriptive easement, an easement by estoppel, and an easement from prior use, see maj. op. at 947-948, I believe that document cannot be read to limit the landowners’ access rights to grazing, firewood, and timber. In my view, the imperfect nature of the Beaubien document requires us to look beyond that document to determine the full scope of the landowners’ access rights. As a result, I would not limit the landowners’ access rights; instead, based on the evidence in the record demonstrating that “settlement rights” encompassed more than grazing, firewood, and timber, I would also include access rights for fishing, hunting, and recreation through a prescriptive easement, an easement by estoppel, and an easement from prior use.

I. The Trial Court Findings Regarding Settlement Rights for Fishing, Hunting, and Recreation

The trial court made strong findings that “[t]he plaintiffs’ predecessors in title grazed cattle and sheep, harvested timber, gathered firewood, fished, hunted and recreated on the land of the defendant from the 1800s to the date the land was acquired by the defendant, in 1960.” The trial court also found that, prior to 1960 when Taylor fenced the land, the landowners referred to that land as “open range” and that the landowners were “never denied access to the land for grazing of cattle, sheep, harvesting timber, gathering firewood, fishing, hunting, or recreating.” My review of the record reveals that that the trial court’s findings of fact that fishing, hunting, and recreation were included in the settlement rights contemplated by the Beau-bien document are correct.

Several expert historians filed reports in this case, some of whom also testified at trial. Some of these reports include commentary regarding fishing, hunting, and recreation as part of settlement rights. For example, the report filed by Dr. Michael Meyer, professor emeritus at the University of Arizona, concluded that the common lands in the settlement systems provided material resources such as “fuel to keep warm during the cold winter months, a varied diet of fruits, vegetables, grains and meat.” The reference to “meat” as one of the resources available from the common lands implicitly refers to hunting that took place on the common lands. Dr. Meyer’s report further expanded on the uses of the common areas, stating that

[t]he common lands were put to many uses in Spanish and Mexican New Mexico, including fishing, hunting (of wild turkeys, deer and other game), threshing, recreation, the gathering of wild herbs, fruits and nuts (especially piñones) and the disposal of refuse but most importantly they *959were used for grazing, watering of stock animals, and the cutting of wood.

Dr. Meyer’s report also explained that among the various primary documents giving a legal basis for common lands use is the Plan de Pitic, which was the founding document for several New Mexico towns, but also “specifically given general applicability for all of the towns in the northern New Spain.” This document provided that common lands be set aside around each settlement “so that the settlers can use them for recreation [and] go out with their cattle without doing damage.”

Dr. Marianne Stoller, professor of anthropology at the Colorado College, filed an expert report and testified at trial. Although her report does not explicitly mention fishing, hunting, and recreation, her report concludes that the Beaubien document clearly guarantees the landowners’ right of access to common lands. Significantly, her report also concludes that the Beaubien document “is made more understandable by looking at the context of the political and social circumstances surrounding its creation, and by understanding the nature of the economic circumstances, ecology, and topographical characteristics of the area.”

Although Dr. Stoller’s report did not expressly address fishing, hunting, and recreation, her trial testimony did. When asked to express her opinion regarding the use of the common lands by successive generations of landowners between 1863 and 1960, she replied, in pertinent part, that “[t]hey were used for hunting of wild animals. They were used for fishing_And recreation.” When asked whether there was specific, visible evidence of such use of the common lands, she replied:

There were roads that went partway up most of the tributary valleys.... There were trails that crisscrossed the mountain lands_There were signs of people having cut wood for the purpose I described. There were animals, there were there were sheep and cattle grazing. There were wild animals to be seen. There were fish in the streams.

Additionally, Dr. Stoller, consistent with her report, testified that one must look beyond the text of the Beaubien document when interpreting the intent of Beaubien and the settlers with regard to access rights. When asked about Beaubien’s purpose in authoring the document, Dr. Stoller replied that his purpose was to record the use rights of the people to the common lands. However, she specifically pointed out that one reading the Beaubien document must look beyond the actual text of that document in interpreting the rights it includes:

He set aside land for pasture, lowlands, the vega lands, specifically saying that these lands were to be used only for animals that were necessary for domestic purposes .... And he designated the lands that could be used for pastures, for flocks — and he did not use the word “flocks, ” but this is to be understood, given the nature of the economy of these people, an agro-pastoral economy.

(Emphasis added.) Dr. Stoller further explained the need to look beyond the text of the document to properly interpret the scope of the access rights it contemplated:

Because [the Beaubien document], like any document, has to be interpreted. And one has to go beyond it to understand the geography. That document contains place names. One has to know where those place names are. It refers to different types of lands. One has to know what those lands are, where they are. All those kinds of things are necessary in order to interpret such a document.... The lands spoken of in the document include the agricultural lands, they include the mountain lands, they include the pasture lands, the vega lands. Lands, in other words, that provide different resources and that are for different purposes.

This testimony demonstrates the necessity of looking to other evidence beyond the Beau-bien document in order to fully understand the different uses that settlers made of these lands. Such other evidence demonstrates that fishing, hunting, and recreation were uses to which the lands were put.

Thus, Dr. Stoller’s testimony is significant for two reasons. First, her testimony establishes that any interpretation of the rights *960contemplated by the Beaubien document must necessarily go beyond the specific text of that document and consider other evidence of the social, political, historical, and economic circumstances at the time the document was authored; we must look beyond the text of the Beaubien document to determine the scope of the access rights to which the landowners are entitled.

Second, Dr. Stoller’s testimony demonstrates that fishing, hunting, and recreation, although not expressly mentioned in the Beaubien document, were important to the settlers, just as grazing and gathering firewood and timber were. Accordingly, I believe that the evidence of settlers’ fishing, hunting, and recreation activities is evidence of the “political and social circumstances surrounding” the creation of the Beaubien document, and that such evidence increases our “understanding the nature of the economic circumstances, ecology, and topographical characteristics of the area.”

Further, the expert report and testimony of Dr. Maria Montoya, professor of history and American culture at the University of Michigan, also supports the trial court’s findings. The majority of Dr. Montoya’s scholarly research and writing relates to the Maxwell land grant. The Maxwell grant, although not the subject of the present case, is nonetheless closely related to the Sangre de Cristo grant that is the subject of this case. The Maxwell grant, located directly to the southeast of the Sangre de Cristo grant, was also owned by Beaubien. Dr. Montoya testified that the history of the two grants is closely related and that she studied the Beaubien document in the context of her research of the Maxwell grant.

More specifically, Dr. Montoya’s report noted that the activities of the settlers that lived on both the Maxwell and the Sangre de Cristo grants were similar. She explained that on both grants, people “settled along the river valleys using similar land use settlement patterns of community living based around a plaza with privately held strips of land (varas), and common areas used for hunting, grazing, and wood collection.” (Emphasis added.) Her report traces the use of the land that makes up both grants back to the Plains tribes, opining that although these tribes practiced agriculture,

hunting was the mainstay of their existence. ... Large animals such as buffalo, mountain sheep, antelope, deer and elk provided not only food but also material goods. They used the hides to make housing covers, sinew for thread, rawhide for ropes and straps, and tanned skins for clothing and shoes.

We can infer that this use of the lands for hunting continued after the Mexican government began to approve land grants such as the Maxwell and Sangre de Cristo grants based on community opposition to the Maxwell grant. The Maxwell grant, unlike the Sangre de Cristo grant, did not expressly reserve rights to common lands for settlers through a document similar to the Beaubien document. As a result, some members of the community feared that the Maxwell grant would be put to commercial use to the exclusion of historical, local use by the settlers for hunting and grazing. In particular, soon after Beaubien received the Maxwell grant, a community member named Father Jose Antonio Martinez lodged an objection. One of Martinez’s grounds for objecting was that putting the lands that comprised the Maxwell grant (which were put to similar use as the lands that comprised the Sangre de Cristo grant) into private hands would deprive those living on the lands of their livelihood, which consisted of hunting as well as grazing livestock.

The conclusion that hunting was an important aspect of the settlers’ activities on both the Maxwell and Sangre de Cristo grants is supported by the findings of another expert. A report filed by Malcolm Ebright, an historian, attorney, and president of the Center for Land Grant Studies in New Mexico, also concluded that Martinez opposed the Maxwell grant because the grant “included the communal hunting and grazing lands” of settlers.

Finally, testimony from at least one of the landowners also supports the trial court’s conclusion that recreation was included in the settlement rights contemplated by Beaubien and the settlers when the document was authored. Emilio Lobato, Jr., who resides *961near the Taylor Ranch, can trace his ancestry back to Cristobal Lobato, one of the early settlers. In addition, his great-grandmother was an original settler in 1851. He described the use he and his family made of the land when he was a child, stating that he would use the land for “hiking, horseback riding, just exploring.” He also testified that he and his family would go on picnics on the Taylor Ranch land. Although such contemporary recreational use of the Taylor Ranch lands occurred several generations after Beaubien authored the document and the original settlers arrived, the fact that such use persisted from generation to generation is further evidence that recreation rights were considered settlement rights and thus contemplated by the Beaubien document.

In sum, the evidence presented at trial and through expert reports, as well as the testimony of at least one lay witness, supports the trial court’s findings of fact that fishing, hunting, and recreation were an important part of the settlers’ activities in the region that includes the Taylor Ranch at the time the Beaubien document was authored in the 1860s. In addition, much of the expert testimony and reports also concluded that the Beaubien document must be construed by considering the social, economic, historical, and geographical context in which it was authored, and not strictly based on the actual text. As a result, applying the same analysis as the majority, I conclude that fishing, hunting, and recreation rights were contemplated by the Beaubien document and must therefore be included in the access rights to which the landowners are entitled.

II. The Scope of Access Rights

My disagreement with the majority opinion is with its application of easements by prescription, by estoppel, and from prior use to limit the landowners’ access rights to “the rights memorialized in the Beaubien document.” Maj. op. at 956. Instead, applying the legal frameworks of easements by prescription, by estoppel, and from prior use to the trial court’s findings of fact results in my determination that the landowners are entitled to access rights for fishing, hunting, and recreation as well as for grazing, firewood, and timber.

Looking, as we must, beyond the Beaubien document, which is imperfect, to extrinsic evidence to determine the full scope of the access rights intended by Beaubien reveals that access rights for fishing, hunting, and recreation must be recognized. The Gilpin agreement is one source of important extrinsic evidence. Significantly, both the Beau-bien and Gilpin documents refer to settlement rights as if the scope of those rights was understood. Because I believe that there was no attempt to enumerate the specific settlement rights in either document, that neither document specifically mentions fishing, hunting, and recreation is not dispos-itive as to the scope of the settlement rights accorded to the first settlers.

As a result, extrinsic evidence beyond these documents must be considered. Such extrinsic evidence includes the social, economic, political and historical character of settlement rights. As my discussion of the record reveals, evidence adduced at trial supports the trial court’s findings that fishing, hunting, and recreation were contemplated by the Beaubien document, and thus the Gilpin agreement, although not mentioned individually in either document. Accordingly, all six access rights sought by the landowners are properly recognized through a prescriptive easement, an easement by estop-pel, and an easement from prior use.

Because I would hold that the landowners have access rights for all six settlement rights, I am unpersuaded by the four reasons given by the majority for limiting its recognition of access rights to grazing, firewood, and timber. See maj. op. at 956. I briefly address each of these four reasons.

First, the majority asserts that the “document is the strongest evidence we have of the parties’ intentions and expectations.” Id. While I agree that the Beaubien document is strong evidence of the parties’ intentions, that document cannot be considered as the only expression of those intentions, or even the strongest expression. Instead, because the document is imperfect and ambiguous, extrinsic evidence must be considered in reconstructing those intentions. Because the *962trial court’s findings of fact regarding all six settlement rights are supported by the record, I find that it is logically consistent to determine that the landowners have established access rights for all six settlement rights; to find otherwise treats the Beaubien document as a proper, perfect, express grant.

Second, the majority contends that the rights in the document were “likely the most necessary.” Id. I agree that grazing herds and gathering firewood and timber were necessary for the survival of the settlers. The record supports such a conclusion. See id. However, a finding that fishing and hunting were necessary settlement rights is also supported by the record. Further, although recreation is arguably not necessary for survival, there is ample evidence in the record that recreation was considered an important settlement right. See part I, supra.

Third, the majority gives weight to the fact that the Fort Massachusetts lease lists the same rights as the Beaubien document to support its exclusion of fishing, hunting and recreation rights. However, because the record reveals that the purpose of Fort Massachusetts was importantly different from the purpose of the Sangre de Cristo settlement, I do not give great weight to that lease in discerning the full scope of the landowners’ access rights. More specifically, as explained by Dr. Stoller, the purpose of Fort Massachusetts was to “protect the settlements ... and to further U.S. policy towards Indians of rounding them up and confining them to a reservation.” Although the rights to graze and collect timber and firewood articulated in the lease were necessary activities for maintaining an army fort, the fundamentally different purposes between Fort Massachusetts and the Sangre de Cristo settlements lead me to give little weight to that lease as evidence regarding the scope of the landowners’ access rights.

Finally, the majority argues that the Beau-bien document is the “only evidence we have of an attempted express grant,” which is important for a claim of a prescriptive easement. See maj. op. at 956. While I agree with this as a statement of fact, I do not believe that it provides a basis for discriminating between the settlement rights of grazing and collecting firewood and timber that are contained in the Beaubien document and the settlement rights of fishing, hunting, and recreation that are supported by other evidence in the record. As noted, the Beaubien document is an imperfect, ambiguous document that must be interpreted and construed by referring to extrinsic evidence; the evidence adduced at trial strongly supports the trial court’s findings of fact that all six rights were considered settlement rights.

Accordingly, I believe that the legal concepts of prescriptive easement, easement by estoppel, and easement from prior use, when applied to the evidence adduced at trial, compel my conclusion that the landowners are entitled to all six settlement rights.

III. Conclusion

While I agree with the majority’s articulation of the controlling law in this case, I disagree with its application of that law to limit the scope of the landowners’ access rights. Because I conclude that the trial court’s findings that “[t]he plaintiffs predecessors in title grazed cattle and sheep, harvested timber, gathered firewood, fished, hunted and recreated on the land of the defendant from the 1800s to the date the land was acquired by the defendant, in 1960” are supported by the record, I would find that the landowners enjoy access rights for grazing, collecting firewood and timber, fishing, hunting, and recreation on the Taylor Ranch. Accordingly, I dissent from part II.C. of the majority opinion and join the majority opinion as to all other parts.

Justice KOURLIS

dissenting.

Although I have great sympathy for the historic and present plight of the landowners in this action, I cannot support the majority opinion for two reasons. First, it is my view that in 1863 Charles Beaubien attempted to make a community grant for the benefit of the inhabitants of the plazas of San Luis, San Pablo, and Los Ballejos. The law in effect at the time did not recognize such a grant and instead required individual identification of grantees. Hence, the Beaubien Document had no legal effect.

*963Second, I find no ambiguity either in the legal description in the Document or in the absence of grantee specificity. The legal description referred to the lands of the Rito Seco. The trial court found that the lands of the Rito Seco do not overlap with the current Taylor Ranch. There is no ambiguity; rather, the Document simply does not apply to Taylor Ranch. Additionally, the omission of grantee names was.not an ambiguity: it was a clear attempt to create a communal grant, which was not legally recognized.

Because the Document is not ambiguous in any pertinent part, it cannot support an implication of rights not expressly set forth. Prescriptive easements, easements by estop-pel, and easements from prior use do not apply to these facts.

Accordingly, I respectfully dissent from the majority opinion and would instead affirm the court of appeals’ opinion upholding the trial court;

I. Community Land Grants

The historical records indicate that someone seeking a land grant would address a petition to the governor of the region describing the land and the individual’s qualifications for ownership. Malcolm Ebright, Land Grants & Lawsuits in Northern New Mexico 23 (1994). If the petition was approved by the governor, and the alcalde (the mayor), then the governor would issue the grant. Id. There were two types of grants of land from the government: private grants to individuals who would own the land and who could sell it after they met a requirement of establishing possession of the land; and community grants.1 Id. at 24.

Large private grants were made in an effort to settle new areas. The individual would not gain full title to the property until he had encouraged a sufficient number of people to move into the area, settle it, and establish communities.

In a community grant, each settler would receive an allotment of land for a house, an irrigable plot, and the right to “use the remaining unallotted land on the grant in common with the other settlers for pastures, watering places, firewood, and logs for building. ... [T]he common lands were owned by the community and could not be sold.” Malcolm Ebright, Land Grants & Lawsuits in Northern New Mexico 25 (1994).

Charles Beaubien received a private grant from the government conditioned upon settlement requirements. Beaubien, in turn, created what I construe to be a community grant to the prospective inhabitants of three plazas. In the Document, he stated that:

It has been decided that the lands of the Rito Seco remain uncultivated for the benefit of the community members (gente) of the plazas of San Luis, San Pablo and Los Ballejos and for the other inhabitants of these plazas for pasturing cattle by the payment of a fee per head, etc_Accord-ing to the corresponding rule all the inhabitants will have enjoyment of benefits of pastures, water, firewood and timber, always taking care that one does not injure another.

The Document is clear on its face that it pertains to the Rito Seco and intends to convey certain rights to the inhabitants of the three plazas. Beaubien enjoyed private land: he granted communal rights on that land, pursuant to Spanish custom and tradition. Under the Beaubien Document, the settlers received a communal right to use certain lands for their personal needs. Now, the landowners assert rights that their predecessors historically exercised in common with a number of other inhabitants of the area. Those rights are not recognized either by statute or ease law.

II. Communal Grants Are Not Recognized In Our Law

A. Territorial Laws

In 1863, the year Charles Beaubien executed the Beaubien Document, under Colorado Territorial law, a document conveying any interest in real estate had to meet several *964formal requirements, including the requirements that it incorporate an accurate description of the property and the names of the grantees:

the Christian and surnames of the ... grantees ... and ... an accurate description of the premises, or the interest in the premises intended to be conveyed, and shall be subscribed by the party or parties making the same, and be duly proved or acknowledged, before some officer authorized to take the proof or acknowledgment of deeds, or by his, her or their attorney in fact.

Territorial Laws of Colo., 1st Sess., An Act Concerning Conveyances of Real Estate, 64, 64, § 2 (1861). The requirement that the document identify grantees by name is indicative of the territorial legislature’s overt decision not to honor community grants that failed to mention specific grantees.

The Beaubien Document flatly fails to meet that requirement.2 The Beaubien Document does not give the Christian and surnames of the grantees, instead only referring generally to the “community members” and “inhabitants” of specified villages. That omission is a legal deficiency that makes the document invalid as a conveyance under the operative law.

Compliance with real property law is a matter of substantial importance. See IV American Law of Property § 18.27 (A. James Casner ed., 1952) [hereinafter Casner]. In the early years of our history, the questions of who owned what and who could sell what were legitimate and pervasive concerns. As a citizenry, we clearly believed in the sanctity of private property and the ownership rights associated with it. However, we struggled with how to clarify those rights as against those who would dispute them, and how to secure title to property such that it would become marketable to a subsequent purchaser. In fact, in Colorado’s early history, one of the issues to which the territorial government fell heir was the question of how to adjudicate land claims and how to establish a common repository for preserving written claims to specific lands. See II Colorado and Its People: A Narrative and Topical History of the Centennial State 372-73 (Leroy R. Hafen ed., 1948).

Under the common law, the grantor merely warranted that he was seised of, or possessed of, the title that he purported to convey. The obvious deficiencies of such a system led to the eventual enactment of recording acts and other statutory conveyancing requirements in every state. 2 Cathy Stricklin Krendl, Colorado Methods of Practice § 62.1 (4th ed.1998).

The regulation of property transfer is strictly a matter of state law. Casner, supra, § 18.27. As the Supreme Court has noted, “[a]s it is indisputable that the general welfare of society is involved in the security of the titles to real estate and in the public registry of such titles, it is obvious that the power to legislate as to such subjects inheres in the very nature of government.” Am. Land Co. v. Zeiss, 219 U.S. 47, 60, 31 S.Ct. 200, 55 L.Ed. 82 (1911); see also BFP v. Resolution Trust Corp., 511 U.S. 531, 544, 114 S.Ct. 1757, 128 L.Ed.2d 556 (1994) (“It is beyond question that an essential state interest is at issue here: We have said that ‘the general welfare of society is involved in the security of the titles to real estate’ and the power to ensure that security ‘inheres in the very nature of [state] government.’ ”) (alteration in original).

Private property ownership is nothing without a “ ‘bright line rule’ to determine the validity of a title and of its potential encumbrances with predictability and without the need for litigation.” Michael H. Rubin & E. Keith Carter, Notice of Seizure in Mortgage Foreclosures and Tax Sale Proceedings: The Ramifications of Mennonite, 48 La. L.Rev. 535, 592 (1988).

Our legislature adopted a thorough statutory regime intended to ensure titles to real property are secure and marketable. See *965§§ 38-34-101 to 38-35-204, 10 C.R.S. (2001). This court, over the decades, has consistently required conveyances to comply with such laws at the time of the document’s creation to give full effect to the goal of security and marketability of real property titles. See, e.g., City of Lakewood v. Mavromatis, 817 P.2d 90, 96, 101 (Colo.1991) (concluding that, although a city filed and recorded a right-of-way in the road book, because the recordation did not comply with the specific provisions of the 1888 recording statute, the statute in effect at the time of the road petition, it did not give constructive notice to subsequent purchasers; therefore, because the road petition was a transfer of an interest in real property, it had to comply with all the specifications of the applicable recording act); Hallett v. Alexander, 50 Colo. 37, 46, 114 P. 490, 494 (1911) (“The evident purpose of the recording statute is, to provide an effectual remedy against the loss accruing to subsequent purchasers of real estate arising from the existence of secret or concealed conveyances thereof unknown to the subsequent purchaser. The remedy is made effectual by requiring every deed to be recorded before it can be of any effect as against such purchasers.”).

That a purchaser would know what he is buying by examining the record title to a parcel of real property, and that an owner could be assured that such record title properly evidences every legitimate right that impinges on his fee simple ownership, are matters of no small import. City of Lakewood, 817 P.2d at 94 (noting that recording acts serve the important purpose of permitting a purchaser to rely on the condition of title as it appears of record and creating an accessible history of title).

Therefore, very simply, the Beaubien Document, like every other real property transfer, must be held to the standards of the law in effect at the time it was executed in order to protect the certainty and marketability of property interests. The Document does not comport with those laws, and it, therefore, has no validity as to the landowners here.3

The Document intended to create a grant to the members of a community: such a grant was in contravention of the applicable statutes and was, therefore, invalid.

B. Case Law

Just as our statutes do not recognize communal grants, so too, case law reaches the same result. New Mexico has been the location of most of the litigation concerning communal grants in the United States. Over the course of that litigation, those courts have declined to recognize communal grants, and have further determined that they must look to the record title to the property, and not inquire behind it into the traditions or history that might ' support converting those grants into individual grants:

[T]he courts established as a basic principle one of not looking behind the title, thus precluding any examination of laws and customs prevailing at the time of annexation by the United States. If title papers were available to prove the right of use, the tribunals treated the land as belonging to the community in fee simple. They also recognized the right of partition of the common lands' among the heirs of the original grantees ... in total disregard of any right of usufruct in descendants of families which had enjoyed the use of the common lands for generations.

Ira G. Clark, Water in New Mexico: A History of Its Management and Use 36-37 (1987). Another commentator observed that:

Because it was considered a real property question, it was left to the New Mexico courts to translate the right of usufruct into common law terms, that is, to define the interest the residents of land grants have in their common lands as opposed to the interest of the patentees. In general, the New Mexico Supreme Court has decided on very narrow legal grounds that the *966patentees have complete title to the common lands. As a result, the rights of community land grant residents have been damaged and, in some cases, extinguished.

Michael J. Rock, The Change in Tenure New Mexico Supreme Court Decisions Have Effected Upon the Common Lands of Community Land Grants in New Mexico, 13 Soc. Sci. J. 55, 56 (1976).

For example, the Tierra Amarilla Grant was a community grant that was patented to an individual, Francisco Martinez. The New Mexico Supreme Court ultimately denied the right of usufruct upon the common lands portion of the grant, holding that, if the land grant were a “private grant, the [Congressional] act of confirmation merely carried out the treaty obligation; if it were a community grant, the common lands were merely government domain and the confirmation constituted a grant de novo to the grantee, Francisco Martinez. Under either view the absolute title was vested, by the act of confirmation in the said grantee.” H.N.D. Land Co. v. Suazo, 44 N.M. 547, 105 P.2d 744, 749 (1940).

In a successor case in New Mexico concerning the same land grant, the plaintiffs asked the court to legitimize rights based upon language that conveyed “the right to pasture and water livestock, to cut wood and to use the roads upon all the lands, suitable for such purposes, of the entire Tierra Amar-illa Land Grant.” Martinez v. Mundy, 61 N.M. 87, 295 P.2d 209, 214 (1956), overruled on other grounds by Evans Fin. Corp. v. Strasser, 99 N.M. 788, 664 P.2d 986, 989 (1983). The court declined, citing H.N.D. Land Co. for the proposition that the original grant conveyed all rights to Martinez and none to the settlers of the region. The court went on to examine the question of whether the plaintiffs had acquired rights by adverse possession and concluded that they had not because “a prescriptive right cannot grow out of a strictly permissive use, no matter how long the use”; and because

[t]he claim by the appellants that they have acquired by grant or prescription, the right to cut wood, water livestock, pasturage and the use of roads was not shown to have been exclusive to the appellants but on the contrary was claimed by many others. The claim being in common with and similar to that of the general public in this area, the appellants certainly could not acquire a private easement unto themselves.

Martinez, 295 P.2d at 214.

Similarly, in Sanchez v. Taylor, 377 F.2d 733 (10th Cir.1967), the Tenth Circuit declined to give legal significance to community rights even in the context of adverse possession. Id. at 738-39. That court addressed the acquisition of the same prescriptive profits on the Taylor Ranch that the landowners here claim. In concluding that usage in common by the inhabitants of the area had not vested them with prescriptive profits, the court first noted that “the public cannot acquire by custom or common prescription profits á prendre in another’s land.” Id. at 738; see also 3 Herbert Thorndike Tiffany, Real Property § 842 (3d ed. 1939 & Supp. 2001) (noting that “there can be no prescriptive right of profit in the public”); id. § 935 (“[A] right [by the public] to take profits from the land, as distinct from the mere right to use the land, cannot be established by custom, since the effect of such a custom would be to exhaust the profits.”).

Finally, the court observed that in dealing with similar claims for profits on land originating from a Mexican land grant, the New Mexico Supreme Court held:

“The claim by the appellants that they have acquired by grant or prescription, the right to cut wood, water livestock, pasturage and the use of roads was not shown to have been exclusive to the appellants but on the contrary was claimed by many others. The claim being in common with and similar to that of the general public in this area, the appellants certainly could not acquire a private easement unto themselves. All circumstances must be considered in determining the acts that would lead to a prescriptive right and we do not find such acts present in such force as to refer to a prescription.”

Sanchez, 377 F.2d at 739 (quoting Martinez, 295 P.2d at 214). Again applying Colorado law, the Tenth Circuit held that the use of land for pasturage, natural products, and *967timber does not ordinarily constitute adverse possession. Id. (citing Smith v. Town of Fowler, 138 Colo. 359, 367, 333 P.2d 1034, 1038 (1959) (“The pasturage of cattle on unfenced land cannot be regarded as hostile and adverse to the owner of such land.”)).

The Tenth Circuit concluded that the landowners’ claims were tantamount to an assertion of unlimited equitable ownership and thus inconsistent with Taylor’s fee-simple title. Sanchez, 377 F.2d at 739.

In short, American legal tradition has chosen to honor private property rights, sometimes to the detriment of communal rights. I have found no court that would recognize the easements that the landowners here urge. Because real property rights depend upon predictability and clarity of law, by attempting to do justice here in contravention of our precedent, we risk injustice elsewhere.

III. The Beaubien Document Cannot Support Implied Rights

A. Ambiguity

The majority does not dispute that the court of appeals correctly applied the applicable laws to the Beaubien Document and agrees that the document cannot act as an express grant of rights. However, it concludes that the Document, coupled with extrinsic evidence, supports an implied conveyance of profits. Maj. op. at 946. I disagree.

Initially, I dispute the conclusion that the court should look to extrinsic evidence at all.4 However, even considering that extrinsic evidence, I find complete support in the record for the trial court’s conclusions that the Document is unambiguous. First, the Beaubien Document is not ambiguous in its legal description as it pertains to the Taylor Ranch.In fact, the Document describes the property as “the lands of the Rito Seco.” The lands of the Rito Seco do not include Taylor Ranch. Although the majority asserts that the Document lists uses, specifically, summer grazing, wood, and timber, that are only available in the Taylor Ranch area of the grant, see maj. op. at 948, the trial court made a different factual finding to the effect that the vegetation pattern of the current Taylor Ranch land is identical to that on the land north and adjacent thereto. Further, a witness for the landowners, an architect, land planner, and expert in map generating whose testimony on vegetation the trial court credited, stated that these resources were available throughout the mountainous areas of the Sangre de Cristo grant, not solely on the Taylor Ranch, which occupies only a small portion the grant.5 The trial court considered evidence bearing on the location of the landowners’ use of timber, firewood, and grazing and concluded that: “The evidence clearly established that none of these locations [lands of the Rito Seco] are situate on the land owned by the defendant.” See also Sanchez, 377 *968F.2d at 737 (stating that the Beaubien Document made no mention of land located on the Taylor Ranch);6 Lobato, 13 P.3d at 831 (concluding that “it is undisputed that the specific locations referenced in the document are not on defendants’ property.”). The majority acknowledges the trial court’s finding that the only locations specified in the Beaubien Document are not located on the Taylor Ranch. Maj. op. at 947. Hence, the Document is not ambiguous in its legal description.

Similarly, there is no ambiguity in the failure of Beaubien to mention individual grantees’ names. As I discuss above, he intended to create a communal grant for the benefit of the inhabitants of the three plazas.

Accordingly, I find no basis for viewing the Document as an incomplete or flawed conveyance that can give rise to implied rights.

IV. Easements

In any event, the three legal theories advanced by the majority for the creation of an easement are not supported by the facts.

A. Easements Versus Profits Á Prendre

I begin with the proposition that I view the distinction between profits á prendre and easements as material. Although in preparing the Restatement of Property, the American Law Institute (ALI) initially referred to both easements and profits as “easements,” in 1998 the ALI reversed its position, once again finding the distinction between easements and profits significant. See 4 Richard R. Powell, Powell on Real Property 34.01[2] (2002). As the majority noted, the Restatement (Third) of Property: Servitudes § 1.2(2) (2000) [hereinafter Restatement] defines a profit á prendre as “an easement that confers the right to enter and remove timber, minerals, oil, gas, game, or other substances from land in the possession of another. It is referred to as a ‘profit’ in this Restatement.” The Restatement distinguishes between easements and profits stating “[p]rofits á prendre are like affirmative easements in that they create rights to enter and use land in possession of another. However, they also create the right to remove something from the land.” Restatement, supra, § 1.2(2) cmt. (a). It further clarifies, “Profits are easements plus. Profits are easements (rights to enter and use land in the possession of another) plus the right to remove something from the land.” Restatement, supra, § 1.2(2) cmt. (e) (emphasis in original).

Thus, the Restatement acknowledges that profits á prendre provide a greater property interest to the profit holder and, conversely stated, a greater detriment to the servient estate. See 8 David A. Thompson, Thompson on Real Property § 65.03(a) (1994) (noting, “Despite the fact that profits are now considered by most writers to be governed by the same set of rules as easements, ... [i]t is also clear that functionally the two areas deal with distinctly different kinds of transactions.” Thompson also observes that, in the Restatement (Third) of Property introduction (Tentative Draft No. 1, 1989), the ALI highlighted that “[t]he term profit has been resurrected from the oblivion into which it was consigned by the 1944 Restatement *969because it describes a device that is used for a purpose quite different from the other servitude devices, and occasionally calls for somewhat different considerations, if not different rules.”).

Similarly, we have held that profits á pren-dre involve a greater interest than easements and must therefore be expressly granted. Alexander Dawson, Inc. v. Fling, 155 Colo. 599, 603-04, 396 P.2d 599, 601 (1964) (holding that a profit á prendre must be expressly granted and cannot be implied from an easement). Hence, under Colorado law, because profits á prendre are more onerous to the burdened estate than an easement,7 the importation of laws governing easements is inappropriate.

B. Easements by Prescription

Under Colorado law, an easement by prescription requires a showing of hostile use, without permission of the owner. The Restatement suggests that easements by prescription can also arise out of a permissive, imperfectly created servitude. This court has never previously adopted that section of the Restatement and these facts do not warrant such a step.

The Restatement, swpra, § 2.16 allows a prescriptive easement to arise out of a use that began as permissive, under the terms of an imperfect conveyance. The section specifies:

A prescriptive use of land that meets the requirements set forth in 2.17 creates a servitude. A prescriptive use is either

(1) a use that is adverse to the owner of the land or the interest in land against which the servitude is claimed, or

(2) a use that is made pursuant to the terms of an intended but imperfectly created servitude, or the enjoyment of the benefit of an intended but imperfectly created servitude.

Restatement, supra, § 2.16 cmt. (a) announces that prescription operates in two separate factual situations. The first situation is a matter of settled law and occurs when the use of the land is without the consent of the owner. See also id. § 2.17 cmt. (c) (“In the most common situation, the prescriptive use is made without the consent of the servient owner.”). Restatement, supra, § 2.16 cmt. (f) further states that to be adverse a use must create a cause of action for interference with an interest in property like trespass, nuisance, or interference with a servitude benefit. To fulfill the definition, the use must be made without authority and without permission of the property owner. Id.; see also Smith v. Town of Fowler, 138 Colo. 359, 367, 333 P.2d 1034, 1038 (1959) (“ ‘An adverse claim must be hostile at its inception, because, if the original entry is not openly hostile or adverse, it does not become so, and the statute does not begin to run as against a -rightful owner until the adverse claimant disavows the idea of holding for, or in subservience to another, it actually sets up an exclusive right in himself by some clear, positive and unequivocal act.’ ”). Uses made pursuant to licenses are not adverse. Restatement, supra, § 2.16 cmt. (f). Similarly, uses made pursuant to servitudes created expressly, by implication, or by necessity, are not adverse.8

*970As to the second factual scenario, the Restatement of Property: Servitudes (1944) did not contain the possibility of creating a prescriptive right through an intended but imperfectly created servitude. The earlier Restatement provided: An easement is created by such use of land, for the period of prescription, as would be privileged if an easement existed, provided the use is (a) adverse, and (b) for the period of prescription, continuous and uninterrupted. Restatement of Property: Servitudes § 457 (1944). It further specified: A use of land is adverse to the owner of an interest in land which is or may become possessory when it is (a) not made in subordination to him, and (b) wrongful, or may be made by him wrongful, as to him, and (c) open and notorious. Id. § 458.

The ALI did not return to the subject of servitudes until the creation of the Restatement Third. Restatement, supra, fvyd. The Restatement (Third) of Property introduction (Tentative Draft No. 3, 1993) explains that the creation of the second portion of the Restatement was precipitated by a desire to provide a more satisfactory theory to resolve cases involving common drives and party walls than adverse possession, because under adverse possession, the time for asserting legal claims to recover the possession of land would be limited.

The Restatement proposes that uses involving common driveways, boundary fences, dams, and party walls are ineptly suited to the requirement of adversity because, in these situations, the initial use is permissive and equity demands the continued right to use the common facility; therefore, the Restatement proposes to dispense with the requirement of adversity but otherwise adopt adverse possession law for those circumstances. See Restatement, swpra, § 2.16 cmt. (a). The Comment suggests that it makes sense to assume that when the parties begin a joint-use arrangement, they intend to create mutual servitudes rather than licenses. Id. § 2.16 cmt. (i).

In addressing whether a use that is made pursuant to the terms of an intended but imperfectly created servitude results in a prescriptive easement, only the Michigan Court of Appeals has adopted the second scenario set forth by the Restatement. Plymouth Canton Cmty. Crier, Inc. v. Prose, 242 Mich.App. 676, 619 N.W.2d 725, 730 (2000) (finding that where the parties executed an express easement that did not fully articulate the parties’ intent to permit loading activities, and those activities occurred under the mistaken belief that the express easement permitted them, the use created a prescriptive easement).

Hence, the Restatement section would allow for claims of prescriptive use to be made in circumstances in which a document conveyed certain rights, but did so imperfectly, and the possessor wishes to validate those rights even through periods when he was making use with permission. The Restatement would itself limit application of the section primarily to common wall or driveway cases.9

The section is not consistent with Colorado law. First, it is not consistent with the statutes, which provide that adverse possession occurs only if the use claimed is truly adverse.10

Second, it is not consistent with our case law. This court has consistently held that the same requirement of adversity applies to acquiring easement and profit rights by prescription as to the acquisition of title by *971adverse possession. See, e.g., Town of Silver Plume v. Hudson, 151 Colo. 394, 398, 380 P.2d 59, 61 (1963) (holding that to establish a prescriptive easement the “ ‘possession must be hostile, not only against the true oumer, but against the world as well. An adverse claim must be hostile at its inception, because, if the original entry is not openly hostile or adverse, it does not become so, and the statute does not begin to run as against a rightful oumer until the adverse claimant disavows ... a holding by permission.’ ”) (emphasis in Silver Plume); Rivera v. Queree, 145 Colo. 146, 149, 358 P.2d 40, 42 (1960); (holding that the prerequisites to acquiring a prescriptive easement are the continuous, open, and adverse use of the right of way for the statutory period); Krendl, supra, § 65.5(3.1) (“In Colorado, the law of prescription has become an extension of the doctrine of adverse possession, requiring all the elements thereof.”). Thus, the adoption of the second prong of the Restatement test, which can create a prescriptive right in' the context of permissive, consensual use is contrary to our law, and I would decline to engraft it.

Even if the court adopts the doctrine, the facts of this case do not support its application here. The Beaubien Document is not an imperfectly created servitude. It is a clearly created communal grant to lands within a particular area. The majority’s application of the second prong is not merely curing a small defect in an express agreement, as contemplated by the Restatement. We are dealing with a document that was quite clear in its intent and application; however, it is not enforceable at law. In such circumstances, the second prong of the Restatement, even if applied, would not support the creation of prescriptive rights.

C. Easements by Estoppel

I would also decline to apply principles of easement by estoppel, because there is no showing here of misrepresentation or concealment of material facts by Beaubien or any of his successors in interest. Thompson defines the elements for an easement by estoppel as:

(1) conduct, acts, language or silence amounting to a representation or concealment of material facts; (2) the party to be estopped either knows the facts or the circumstances require the facts to be imputed to that party; (3) the truth about the facts must be unknown to the party claiming benefit of the estoppel at the time they were acted upon; (4) the conduct must occur with the intention or expectation that it will be acted upon, or under the circumstances that it is both natural and probable that it will be acted upon; (5) the conduct must be relied upon by the other party, and, thus relying, the other party must be led to act upon it; and (6) the other party must in fact act upon the conduct and change position for the worse.

7 Thompson, supra, § 60.03(b)(3).

In Colorado case law, easement by estop-pel can sometimes arise out of a parol agreement that intends to convey a certain right as a mere license; however, there must be conduct on the part of the party against whom the easement is being asserted that amounts to a false representation or concealment of material facts. Pagel v. Reyman, 628 P.2d 166, 168 (Colo.App.1981) (holding that the plaintiffs failed to establish the elements for an easement by estoppel in a case involving a road easement for a trailer park) (citing Aubert v. Town of Fruita, 192 Colo. 372, 374-75, 559 P.2d 232, 234 (1977)).11

The majority relies upon two cases for the proposition that the facts before us in this case support an easement by estoppel. Both are water eases, and both deal with the acquisition of ditch rights by parol agreement. Both are inapposite, in my mind, because they are predicated on the underlying policy that is expressed as follows:

It is indeed a generally prevailing state policy in those states dependent upon irri*972gation largely for successful agriculture, both in the interest of economy and to prevent any unnecessary waste of land in the construction and use of ditches, that, where one ditch can answer the purpose of more, the right to use the same ditch is granted to others than the owners.

Hoehne Ditch Co. v. John Flood Ditch Co., 68 Colo. 531, 540-41, 191 P. 108, 112 (1920). In both cases, Hoehne and Graybill v. Corlett, 60 Colo. 551, 553, 154 P. 730, 731 (1916), the court permitted the establishment of a ditch right-of-way by estoppel without the necessary element of misrepresentation of a material fact, but only in the context of water rights. To the contrary, in Bijou Irrigation District v. Empire Club, 804 P.2d 175, 185-86 (Colo.1991), we declined to permit the petitioners from asserting that the Irrigation District was estopped from objecting to use of a reservoir for recreational purposes because, although the District had knowledge of the facts, there were no findings regarding unreasonable delay in the assertion by the District of its rights. Also on point is Holbrook Irrigation District v. Arkansas Valley Sugar Beet & Irrigated Land Co., 42 F.2d 541 (D.Colo.1929), in which the plaintiffs sought certain water rights by operation of estoppel. The court there noted that equitable estoppel requires overt acts and declarations of the party charged, designed to induce another to alter his position to his detriment all of which must be proven by clear and convincing evidence. Id. at 548.

There has been no showing in this case that Beaubien or Gilpin either misrepresented material facts or intended the landowners to rely to their detriment upon a parol agreement. Indeed, to my knowledge, the only context in which such a doctrine has been applied to the acquisition of easements has involved ditches and ditch rights, an area in which rights are so firmly entrenched as to be included within the Colorado Constitution.12

D. Easements by Prior Use

Easements by prior use, sometimes referred to as easements of necessity, can be implied when a property owner has used one part of a single piece of property for the benefit of another part of the property and then divides and conveys the property. In those circumstances, the new possessor of “the previously benefited portion of the land may also possess an easement over the previously burdened part of the property.” 7 Thompson, supra, § 60.03(b)(4).

Thompson suggests that the elements of an easement implied from prior use are: “(1) common ownership followed by a conveyance separating the unified ownership; (2) before severance, the common owner used part of the property for the benefit of the other part, a use that was apparent, obvious, continuous and apparent; (3) and the claimed easement is necessary and beneficial to the enjoyment of the parcel previously benefitted.” 7 Thompson, supra, § 60.03(b)(4)(i). The underlying premise is that, because the retained property was necessary to enjoyment of the conveyed property as shown by historical use — -the grantor must have intended to convey the easement with the grant.

In Wagner v. Fairlamb, 151 Colo. 481, 379 P.2d 165 (1963), the plaintiff constructed a road across the defendant’s property that followed a mule pack or wagon trial that was in existence when the property was under common ownership. Id. at 483, 379 P.2d at 167. This court recognized that an easement may be an express easement (which appears in a deed or contract for the sale of land) or an implied easement (which arises out of the existence of certain facts implied from the transaction). Id. at 484, 379 P.2d at 167. The court noted that implied easements have generally not been looked upon with favor by the courts. Id. The elements adopted by the court to prove an implied easement were:

(1) Unity and subsequent separation of title; (2) obvious benefit to the dominant and burden to the servient tenement existing at the time of the conveyance; (3) use of the premises by the common owner in their altered condition long enough before the conveyance to show that the change *973was intended to be permanent; and (4) necessity for the easement.

Id. at 484-85, 379 P.2d at 167. Noting that all four elements must be present to support the creation of an easement, the court in Wagner rejected an easement, finding that the use was “a terminated intermittent” rather than permanent use. See also Lee v. Sch. Dist. No. R-1, 164 Colo. 326, 332, 435 P.2d 232, 236 (1967)(easement by necessity found because of adequate proof of consistent, permanent use of road prior to severance).

In Bromley v. Lambert & Son, Inc., 752 P.2d 595 (Colo.App.1988), at the time of the severance of the parcel, the plaintiffs had no access to their land except by right of way over the defendant’s property. Id. at 596. The city later constructed a public street adjoining the plaintiffs’ property. Id. The court stated:

Colorado recognizes implied easements that arise by pre-existing use. A showing of necessity is required to establish an easement by pre-existing use. Proof of necessity is required as of the time of the severance of the original property into separate estates, because it is an indication of the intent of the original grantor and grantee that a permanent servitude be imposed on the servient estate in favor of the dominant estate.

Id. (citations omitted); see also Proper v. Greager, 827 P.2d 591 (Colo.App.1992) (noting that the required necessity is the necessity for the easement at the time of severance, not at the time of the court hearing).

Accordingly, to imply an easement by prior use, the landowners here would have had to show that the mountain property was being used by Beaubien at the time of the conveyance of the vara strips as a necessary adjunct in order to support the viability of the vara strips. Only by that means could the landowners demonstrate that Beaubien necessarily intended to grant to them such rights. The evidence does not suggest that Beaubien was then making use of the property nor that Taylor Ranch was necessary to the community. Rather, the evidence demonstrates that no one lived on the property at the time of the grants, and that the grazing, timber, and firewood use occurred on property other than the Taylor Ranch. Under those circumstances, an easement by necessity cannot exist.

V. Conclusion

I do not believe that the landowners here have established their right to use the Taylor Ranch lands as they claim. They cannot, in my view, rely upon the Beaubien Document because it did not comply with the laws in effect at the time of its execution by failing to identify specific grantees. The document was not ambiguous, and therefore cannot support rights by implication. Further, none of the theories for implication of an easement apply to these facts.

Accordingly, I would affirm the court of appeals and thus respectfully dissent from the majority opinion.

I am authorized to state that Justice RICE joins in this dissent.

BOLIN, Justice.

Lightwave Technologies, L.L.C., petitioned this Court for a writ of certiorari to review the decision of the Court of Civil Appeals, in a plurality opinion, affirming the trial court’s summary judgment in part, reversing it in part, and remanding the cause. Jackson v. City of Auburn, 971 So.2d 696 (Ala.Civ.App.2006) (opinion on application for rehearing). We granted the petition specifically to consider the Court of Civil Appeals’ resolution of the issue whether, and to what extent, the holder of an easement obtained by prescription might “apportion” that easement for some additional use by another party.

Lindburgh Jackson owned property in Auburn, Alabama; Alabama Power Company (hereinafter “APCo”) has maintained power lines across the property and a utility pole on the property. Over the years since he first obtained an interest in the property in 1978, Jackson occasionally complained of APCo’s use and maintenance of the lines and the pole and threatened legal action against APCo. In October 1999, Jackson conveyed the property to his daughter, Kathy Matthews, although he continued to use the property for his business, and APCo’s lines and pole remained on the property. Sometime between November 2000 and March 2001, Lightwave, pursuant to a “pole-sharing” agreement with APCo, installed fiber-optic cable on the utility pole on the property.1 *714The City of Auburn had authorized Light-wave to install its cable in Auburn and by ordinance had established the route for such placement.

In September 2003, Jackson sued various parties, including APCo, Lightwave, and the City of Auburn asserting, among other things, that APCo had conspired with Lightwave to commit trespass on the property. In 2004, Matthews was added as a plaintiff.2 After considerable litigation, the trial court entered a summary judgment in favor of all the defendants. Jackson and Matthews appealed to this Court, which transferred the case to the Court of Civil Appeals pursuant to § 12-2-7(6), Ala.Code 1975.

After resolving a number of issues not relevant to the present petition with respect to the City of Auburn, the Court of Civil Appeals engaged in a detailed analysis of the plaintiffs’ claims against APCo and concluded that APCo, in light of undisputed evidence that it had maintained the power lines in opposition to Jackson’s objections from April 1983 until September 2003, had obtained an easement by prescription over the property in question under the requirements for establishing such easements set out in Bull v. Salsman, 435 So.2d 27, 29 (Ala.1983). The Court of Civil Appeals affirmed the summary judgment for APCo with respect to the plaintiffs’ trespass claim against it. The Court of Civil Appeals then addressed the trespass claim against Lightwave and the conspiracy-to-commit-trespass claim against both APCo and Lightwave. We conclude that the rationale in the plurality opinion of the Court of Civil Appeals in this regard was well reasoned and correct, and we adopt that court’s analysis as set out below as the opinion of this Court:

“In order to determine whether the summary judgment in favor of Light-wave on the trespass and conspiracy claims against it and the summary judgment in favor of APCo on the conspiracy claim against it were proper ..., we must ... consider whether APCo has the right to apportion its prescriptive *715easement and whether its apportionment to Lightwave was within the scope of the prescriptive easement. If APCo has the right to apportion the easement and the apportionment was within the scope of the easement, then Lightwave could not have committed a trespass and APCo and Lightwave could not have conspired to commit a trespass. If, however, APCo cannot apportion its prescriptive easement, or if the apportionment to Lightwave exceeds the scope of the easement, Lightwave’s actions could amount to trespassing on the property and APCo could, depending on facts that would be developed on remand, be shown to have conspired with Lightwave to commit a trespass.

“Lightwave argues that the Alabama Supreme Court has already determined the issue of the apportionability of power-line easements in Cousins v. Alabama Power Co., 597 So.2d 683 (Ala.1992). Jackson and Matthews, however, argue that Cousins is distinguishable in that it involved two express easements and an easement acquired by condemnation and not a prescriptive easement. Discussions of Cousins and of the law regarding both the apportionability of easements and the scope of prescriptive easements will be necessary to decide whether APCo has the right to apportion the prescriptive easement in the present case and whether the apportionment to Lightwave is within the scope of APCo’s prescriptive easement.

“The term ‘apportionability’ in reference to easements refers to the easement owner’s right to divide the easement ‘to produce independent uses or operations.’ See Restatement of Property § 493 cmt. a. (1944). In general, an exclusive easement in gross is apportion-able to the extent the additional use is ‘authorized by the manner or terms of [the easement’s] creation.’ Id. at cmt. c. An easement in gross is an easement that ‘benefits a particular person or persons (or business or organization) whether or not they own another piece of land’; that is, the person or entity owning the easement is benefited personally rather than the benefit of the easement accruing to another piece of land. 7 Thompson on Real Property § 60.02(f)(2) (Thomas ed.1994); 4 Powell on Real Property § 34.02[2][d] (2000). ‘An exclusive easement grants unfettered rights to the owner of the easement to use the easement for purposes specified in the grant “to the exclusion of all others,”’ including the servient owner. Thompson on Real Property, supra, § 60.04(b)(2). APCo’s prescriptive easement in the present case is an exclusive easement in gross because it permits APCo to use the easement for the construction and maintenance of power lines and precludes, by its nature, Jackson and Matthews from using the easement for that purpose.

“Cousins involved whether APCo could apportion three exclusive easements in gross4 — two created by express grant and one created by condemnation. The express easements stated that APCo had the right to construct, operate, and maintain electric transmission lines and telegraph and telephone lines. Cousins, 597 So.2d at 686. The condemnation order granted APCo ‘ “the right to construct and erect over said lands such tower, pole and wire lines, and all appliances necessary, convenient and useful in connection therewith....’” Id. at 687. APCo desired to replace its existing ground wire cable across the easements at issue with a new ground wire cable containing some fiber-optic communication line. Id. at 685. A portion of the fiber-optic communication line was to be used for APCo’s internal *716communications network; however, APCo intended to share the other portion of the fiber-optic communication line with American Telephone and Telegraph Company (‘AT & T’). Id.

“The servient owners conceded that APCo had the right to string the new ground wire cable containing the fiber-optic communication line because, in the case of the express easements, such lines were equivalent to telephone lines, which were expressly permitted by the easement, and in the case of the condemnation order, the communication line would be permitted under its language insofar as the line was used for communication in connection with the distribution of power to the public. Id. However, the servient owners objected to APCo’s sharing its easements with AT & T without first obtaining the consent of or compensating the servient owners. Id. at 686. The trial court entered a summary judgment for APCo, stating that ‘“under the prevailing authorities and the facts of this case, [APCo] can lawfully share the use of its communication lines with another entity such as AT & T, regardless of whether its rights-of-way [were] obtained by deed or by condemnation proceedings.” ’ Id.

“In deciding that the trial court had properly determined that APCo was entitled to judgment as a matter of law on the issue whether it had the right to apportion its easements, the Cousins court stated that ‘[m]any courts have found that utility companies are authorized to share or apportion their easement rights with a third party, without obtaining the permission of, or compensating the owner of, the servient estate.’ Cousins, 597 So.2d at 687 (citing in a footnote Jolliff v. Hardin Cable Television Co., 26 Ohio St.2d 103, 269 N.E.2d 588 (1971); Hoffman v. Capitol Cablevision System, Inc., 52 A.D.2d 313, 383 N.Y.S.2d 674 (1976), app. den., 40 N.Y.2d 806, 390 N.Y.S.2d 1025, 359 N.E.2d 438 (1976); Faulkner v. Kingston Cablevision, Inc., 53 A.D.2d 948, 386 N.Y.S.2d 358 (1976), app. den., 40 N.Y.2d 805, 388 N.Y.S.2d 1025, 356 N.E.2d 1233 (1976); and Henley v. Continental Cablevision of St. Louis County, Inc., 692 S.W.2d 825 (Mo.Ct.App. 1985)). The Cousins court also commented that the language contained in the deeds and the condemnation order at issue in Cousins was similar to the language contained in easements in other cases in which courts had determined that the language indicated the grantor’s intent to convey the right to apportion.5 Cousins, 597 So.2d at 687. The court further stated that ‘[a]n apportionment such as the one contemplated by APCo in this case has been held not to constitute an additional servitude.’ Id. (citing Salvaty v. Falcon Cable Television, 165 Cal.App.3d 798, 212 Cal.Rptr. 31 (1985)).

“In deciding that the language of the easements and the condemnation order in question was sufficient to imply an intent to grant the right to apportion the easement to APCo, the Cousins court relied, in part, upon Centel Cable Television Co. of Ohio v. Cook, 58 Ohio St.3d 8, 567 N.E.2d 1010 (1991). According to the ‘Syllabus by the Court’ preceding the opinion in Cook, the servient owner in Cook had granted to the power company and ‘ “its successors and assigns forever, a right of way and easement ... for a line for the transmission and/or distribution of electric energy thereover, for any and all purposes for which electric energy is now, or may hereafter be used....’” Cook, 58 Ohio St.3d at 8, 567 N.E.2d at 1011. The Cook court explained that

“ ‘ “[where an easement in gross] is created by conveyance, apportionabili*717ty depends upon the intention of the parties to the conveyance.” ... Jolliff v. Hardin Cable Television Co., [26 Ohio St.2d 103,] 107, 55 O.O.2d [203,] 205, 269 N.E.2d [588,] 590 [ (1971) ], citing 5 Restatement of the Law, Property (1944) 3053, Section 493, Comment &.’

“Cook, 58 Ohio St.3d at 10, 567 N.E.2d at 1013 (footnotes omitted). Although the Cook court did not hold that the language in the easement was ‘sufficient to express the grantor’s clear intent to grant [the power company] the right to apportion its easement,’ 58 Ohio St.3d at 11, 567 N.E.2d at 1013-14, the court continued its analysis to determine the intent of the grantor, finally determining that the easement was intended to be apportionable. 58 Ohio St.3d at 11, 567 N.E.2d at 1014. The Cook court further determined that the intended use of the easement was similar to the use granted in the easement and that the apportionment of the easement would not place an additional burden on the servient tenement. 58 Ohio St.3d at 11-12, 567 N.E.2d at 1014-15.

“The Cook court relied upon an earlier Ohio case, Jolliff v. Hardin Cable Television Co., 26 Ohio St.2d 103, 107, 269 N.E.2d 588, 590 (1971), that relied, in part, on the Restatement of Property § 493 (1944), which explains that ‘[t]he apportionability of an easement in gross is determined by the manner or the terms of its creation.’ As explained in the Restatement, the intent of the parties to an easement by conveyance controls whether an easement is apportiona-ble. Restatement of Property § 493 cmt. b. (1944). However, ‘[w]hen an easement in gross is created by prescription, the question of its apportiona-bility is decided in light of the reasonable expectation of the parties concerned in its creation as inferred from the nature of the use by which it was created.’ Id.

“Thus, although Cousins does indeed hold that express easements and easements acquired by condemnation may be apportioned when the language in the document or condemnation order creating the easement indicates an intention to convey or to grant the right to apportion and when the apportionment does not constitute an additional servitude, it cannot stand for the proposition, as urged by Lightwave, that the prescriptive easement in this case is apportiona-ble to Lightwave as a matter of law without further inquiry. In fact, although we agree that APCo’s prescriptive easement may indeed be apportioned, the question that remains — what rights APCo has to apportion — is not decided by Cousins.

“The ground wire containing the fiber-optic communication line in Cousins was conceded to be within the scope of both the express easements and the easement by condemnation. Cousins, 597 So.2d at 685. The cable line at issue in the present case, however, has not been conceded to be within the scope of APCo’s prescriptive easement. Lightwave’s cable line is not contained within the replacement of a preexisting cable strung by APCo like the fiber-optic communication line was in Cousins. See id. As mentioned above, an exclusive easement in gross is generally considered to be apportionable to the extent the additional use is ‘authorized by the manner or terms of [the easement’s] creation.’ Restatement of Property § 493 cmt. c. (1944). We must therefore consider the parameters — or the scope — of APCo’s prescriptive easement.

“In Alabama, the scope of an easement established by prescription is determined by the extent of the use. Wright & Rice v. Moore, 38 Ala. 593, 598 *718(1863).; Roundtree v. Brantley, 34 Ala. 544, 552 (1859);6 see also 4 Powell on Real Property § 34.13 (2000) (‘the scope of [a prescriptive] easement is necessarily a primary function of the continued use or uses by which it was generated’). In addition, our supreme court has recognized that ‘ “it is elementary law respecting easements that neither the dominant owner nor the servient owner is permitted to materially alter the character of the servitude.” ’ Blalock v. Conzelman, 751 So.2d 2, 6 (Ala.1999) (quoting Gerber v. Appel, 164 S.W.2d 225, 228 (Mo.Ct.App.1942), quashed in part on other grounds, State ex rel. Appel v. Hughes, 351 Mo. 488, 173 S.W.2d 45 (1943)). In Blalock, our supreme court reversed a trial court’s judgment permitting an easement holder to prevent the servient owner from cutting trees and other vegetation from the easement in order to further the ser-vient owner’s use of the easement area. Blalock, 751 So.2d at 7. The court explained that the easement holder, by seeking permission to prevent the removal of the vegetation, was attempting to ‘change the essential character of the easement from that of a right of way, to — in effect — one of shade and air.’ Id. at 6. The trial court’s judgment restraining the servient owner from removing the trees and vegetation, said the court, was in error because it wrongfully allowed the easement holder to change the character of the easement.

“Under Alabama law as explained above, the scope of a prescriptive easement is determined by the scope of the use that established the prescriptive right, and an easement holder is not entitled to materially alter the scope (or character) of its easement. Lightwave contends that APCo’s right to divide its easement does not arise from the source of APCo’s right, be it by deed, prescription, or otherwise. That is indeed true; as also explained above, the right to apportion typically depends on the type of easement involved and the exclusivity of that easement. As also noted above, however, the Restatement differentiates between easements acquired by conveyance and those acquired by prescription in its discussion of the apportionability of easements. Restatement of Property § 493 cmt. b. (1944). Specifically, the Restatement indicates that exclusive easements in gross are apportionable to the extent the additional use is within the scope of the easement. Id. at cmt. c. Two reported decisions from other states have considered whether a power company can properly apportion its prescriptive easements to other companies, such as telephone or cable companies; these cases reached different results. See Ogg v. Mediacom, L.L.C., 142 S.W.3d 801 (Mo.Ct.App.2004); and Hise v. BARC Elec. Coop., 254 Va. 341, 492 S.E.2d 154 (1997).

“In Rise, the Virginia Supreme Court considered, among other things, whether the telephone lines and cable lines of third-party companies that had been strung on the power poles maintained by BARC Electric Cooperative (‘BARC’) in its prescriptive easement over the Hises’ property could be moved to the new power poles constructed by BARC over another portion of the Hises’ property acquired in an eminent-domain proceeding. Rise, 254 Va. at 344, 492 S.E.2d at 157. In deciding that the telephone and cable lines could be moved to the new poles, the court discussed the apportion-ability of prescriptive easements, noting that the Restatement concludes that the reasonable expectation of the parties should be considered. 254 Va. at 346, 492 S.E.2d at 158. The court pointed out that, during the prescriptive period, *719BARC had permitted the telephone and cable companies to string their lines on its poles and that ‘[s]uch attachments had been made without objection from the Hises for more than 16 years before this controversy arose’; the court also noted that the Hises had used the cable line for television reception for 8 of those years. Id. Based on those facts, the court concluded that BARC had construed its easement to be both exclusive and apportionable and that the Hises had acquiesced in that construction by failing to object and in using the cable line. Id. Thus, the court concluded that the prescriptive easement was appor-tionable and that the telephone and cable wires could be properly affixed to the new poles. Id.

“In Ogg, however, the cable company fared far differently. The Oggs owned and lived on a family farm over which Platte Clay Electric Cooperative, Inc. (‘Platte Clay Electric’), held a longstanding prescriptive easement upon which its poles and power lines were maintained at a height of approximately 18 to 20 feet above the ground. Ogg, 142 S.W.3d at 804-05. In early 1999, Mediacom placed fiber-optic cable at a height of approximately 12 to 14 feet above the ground7 on the poles under a pole-sharing agreement with Platte Clay Electric; Mediacom did not seek permission from, acquire an easement from, or compensate the Oggs for the use of the property. Id. The Oggs objected and sued Mediacom alleging trespass. Id. at 806. Among the Oggs’ arguments was that even if Platte Clay Electric had granted Mediacom a license to use Platte Clay Electric’s easement, the license was ‘unlawful in that it would create a right beyond the scope of the original easement.’ Id. at 808.

“The trial court had entered a summary judgment in favor of Mediacom, holding that whether Mediacom could use the license granted by Platte Clay Electric ‘ “turn[ed] entirely on whether the addition of Mediacom’s cable to utility poles already containing an electric wire impose[d] an additional unreasonable burden.” ’ Id. The Missouri Court of Appeals agreed with the Oggs that the trial court erred by focusing exclusively on the burden imposed by Media-com’s use of the easement, stating that ‘[wjhile “the owner of an easement may, in some circumstances, license or authorize third persons to use its right of way,” the licensor “may not create a right in excess of [that] held by it, nor ... a right which as against the owner of the servient estate is an additional burden or servitude upon the fee simple title.” ’ Id. (quoting Eureka Real Estate & Inv. Co. v. Southern Real Estate & Fin. Co., 355 Mo. 1199, 1206, 200 S.W.2d 328, 332 (1947))(footnote omitted). The Missouri court explained that ‘the licensing agreement between Platte Clay Electric and Mediacom could, at most, lawfully confer on Mediacom only the rights Platte Clay Electric itself held under its prescriptive easement.’ Id. at 808-09 (footnote omitted).

“The Missouri court stated that, under Missouri law, the rights of the holder of a prescriptive easement are ‘defined solely by the character and extent of the use made thereof during the prescriptive period.’ Id. at 809 (quoting Stickle v. Link, 511 S.W.2d 848, 854 (Mo.1974)) (footnote omitted). As the court further explained, ‘ “[Prescriptive] easements arise by reason of use. It is rational that an easement that exists because of use, which falls short of possession, may not be extended in its character and extent beyond the use which existed when the prescription arose.” ’ Id. (quoting 18 Theodore H. Hellmuth, Mis*720souri Practice: Real Estate Law— Transactions § 420, at 430 (2d ed.1998)). Based on those legal principles, the Missouri court determined that neither Platte Clay Electric nor Media-corn ‘had the legal right to unilaterally expand, in character or extent, the prior prescriptive use,’ which, according to the court was ‘to operate and maintain electrical power cables on poles at a height of approximately eighteen to twenty feet.’ Id. at 810.

“The present case is much more akin to Ogg than to Hise. Certainly, Jackson and Matthews allowed APCo to gain a prescriptive easement over the disputed property. However, although Light-wave may have affixed its line to the power pole nearly 3 years before Jackson filed this action, one can hardly conclude that a relatively short 3-year delay amounts to the clear acquiescence apparent in a delay of 16 years like that in Hise.

“Lightwave argues, like Mediacom did in Ogg, that it is entitled to share APCo’s existing prescriptive easement. Like Missouri law, Alabama law bases the scope of a prescriptive easement on the extent of the use that established the prescriptive right. Alabama law also prohibits an easement holder from changing the character of the easement. Therefore, although we agree with Lightwave that prescriptive, exclusive easements in gross like APCo’s are ap-portionable, we, like the court in Ogg, must conclude that only those rights acquired by APCo may be apportioned.

“APCo acquired the right to string power lines across the disputed property. APCo did not acquire a right to string any line or cable providing something other than, or related to, electrical power over the easement. The trial court’s summary-judgment order does not specify the parameters of APCo’s prescriptive easement; however, based on the arguments presented to the trial court and its decision to enter a summary judgment in favor of Lightwave, we conclude that the trial court determined, based on Cousins, that APCo’s prescriptive easement could be apportioned as a matter of law with Light-wave. As explained above, Cousins does not stand for the proposition that a prescriptive easement is absolutely ap-portionable without limitation. Thus, the trial court’s conclusion that Light-wave, by virtue of APCo’s right to apportion its prescriptive easement, acquired the right to string its cable on APCo’s pole is incorrect, and the summary judgment on that issue was improperly entered. Withers v. Mobile Gas Serv. Corp., 567 So.2d 253, 256-57 (Ala.1990) (reversing a summary judgment on, among other things, a trespass claim in favor of the gas company where the gas company used land outside the temporary 20-foot easement to which it was entitled).

“At this point we must discuss the defense of laches, asserted both by APCo and Lightwave as an independent ground upon which to affirm the summary judgment in their favor. ‘To establish the application of the doctrine of laches, [a defendant] ha[s] to show that [the plaintiff] delayed in asserting his right or claim, that his delay was unex-cusable, and that his delay caused the [defendant] undue prejudice.’ Ex parte Grubbs, 542 So.2d 927, 929 (Ala.1989). ‘For the doctrine of laches to bar a claim it must be said that “from delay, any conclusion the court may arrive at must at best be conjectural, and the original transactions have become so obscured by lapse of time, loss of evidence, and death of parties as to render it difficult if not impossible to do justice.” ’ Salter *721v. Hamiter, 887 So.2d 230, 241 (Ala.2004) (quoting Ussery v. Darrow, 238 Ala. 67, 71, 188 So. 885, 888 (1939)).

“Because we have determined that APCo established a prescriptive easement, we need not consider whether the defense of laches is applicable to the trespass claim against it. In its summary-judgment motion, Lightwave incorporated APCo’s summary-judgment argument concerning the 20-plus-year delay between Jackson’s knowledge of the power pole and lines on the disputed property and the institution of this action; Lightwave made no separate argument of its own. Lightwave’s first trespass on the disputed property would have been, at the earliest, in November 2000, only three years before the institution of this action. Therefore, we can safely determine that Lightwave did not establish how the shorter, three-year delay between its stringing its cable in 2000 or 2001 and [the filing of the complaint and the amended complaint] in 2003 and 2004 prejudiced it in any manner or made it ‘difficult if not impossible to do justice.’ Accordingly, laches is not an alternate ground upon which to affirm the summary judgment in favor of Lightwave on the trespass claim. Likewise, any conspiracy claim based on APCo’s and Lightwave’s conduct in regard to the fiber-optic cable must have arisen approximately three years before the institution of this action, and neither APCo nor Lightwave argued or presented evidence negating any issue of fact concerning whether the three-year delay caused either defendant any prejudice; thus, laches is not an appropriate alternative ground for affirmance of the summary judgment on the conspiracy claims against Lightwave and APCo.

“Because APCo’s prescriptive easement is limited in scope to the extent of the use that created it, APCo’s apportionment of the prescriptive easement does not serve to insulate APCo from the conspiracy claim against it. Nor does APCo’s attempt to apportion its prescriptive easement insulate Light-wave from either the trespass claim or the conspiracy claim against Light-wave ....

971 So.2d at 709.

The judgment of the Court of Civil Appeals is affirmed.

AFFIRMED.

SEE, LYONS, STUART, SMITH, and PARKER, JJ., concur.

COBB, C.J., and MURDOCK, J., recuse themselves.

JUSTICE RYAN

delivered the opinion of the court:

The plaintiff, Granite Properties Limited Partnership, brought this suit in the circuit court of Madison County, seeking to permanently enjoin the defendants, Larry and Ann Manns, from interfering with the plaintiff’s use and enjoyment of two claimed easements over driveways which exist on the defendants’ property. One driveway provides ingress to and egress from an apartment complex and the other to a shopping center. Both the apartment complex and the shopping center are situated on the plaintiff’s property. Following a bench trial, the circuit court entered judgment against the plaintiff and in favor of the defendants as to both claimed easements. Following argument of the plaintiff’s post-trial motion, the circuit court granted permanent injunctive relief as to the claimed apartment complex easement, but reaffirmed its decision denying the claimed shopping center easement. Both parties appealed from that portion of the judgment adverse to them. The appellate court, with one justice dissenting, held that the plaintiff was entitled to easements by implication over the driveways in question. *428(140 Ill. App. 3d 561.) We granted the defendants’ petition for leave to appeal (94 Ill. 2d R. 315).

The relative location of the subject properties and the claimed easements may be seen by reference to the following rough diagram adapted from the defendants’ petition for leave to appeal.

As indicated, the parcels which are the subject of this appeal are adjoining tracts located to the south of Bethalto Drive and to the north of Rou des Chateaux Street in Bethalto, Illinois. The plaintiff and its predecessors in title owned all of the subject properties from 1963 or 1964 until 1982, at which time the parcel labeled “B” was conveyed by warranty deed to the defendants. *429The plaintiff currently owns the parcels labeled “A” and “E,” which are on the opposite sides of parcel B. The shopping center situated on the parcel designated “A” extends from lot line to lot line across the east-west dimension of that property. To the north of the shopping center is an asphalt parking lot with approximately 191 feet of frontage on Bethalto Drive. To the east of the shopping center on the parcel labeled “D” is a separately owned health club. To the south of parcel A on the parcel denominated “C” are five four-family apartment buildings. The distance between the back of the shopping center and the property line of parcel C is 50 feet. The shopping center’s underground utility facilities are located in this area. An apartment complex, known as the Chateau des Fleurs Apartments, is located on the parcel labeled “E.” Both of the plaintiff’s properties were developed prior to the time parcel B was sold to the defendants. Parcel B remains undeveloped.

The first claimed easement provides access to the rear of the shopping center which is located on parcel A. The center, which was built in 1967, contains several businesses, including a grocery store, a pharmacy, and doctors’ offices. The rear of the center is used for deliveries, trash storage and removal, and utilities repair. To gain access to the rear of the shopping center for these purposes, trucks use a gravel driveway which runs along the lot line between parcel A and parcel B. A second driveway, located to the east of the shopping center on parcel D, enables the trucks to circle the shopping center without having to turn around in the limited space behind the stores.

Robert Mehann, the owner of the Save-A-Lot grocery store located in the shopping center, testified on direct examination that groceries, which are delivered to the rear of the store, are loaded by forklift on a concrete pad poured for that purpose. Mehann indicated that *430there are large, double steel doors in the back of the store to accommodate items which will not fit through the front door. Mehann testified that semitrailer trucks make deliveries to the rear of the grocery store four days a week, with as many as two or three such trucks arriving daily. An average of 10 to 12 trucks a day, including semitrailer trucks, make deliveries to. the grocery store. Mehann further explained on direct examination that because the area behind the Save-A-Lot building extends only 50 feet to the rear property line, it would be difficult, if not impossible, for a semitrailer truck to turn around in the back and exit the same way it came in. In response to a question as to whether it would be feasible to have trucks make front-door deliveries, Mehann suggested that such deliveries would be very disruptive; pallets that would not fit through the front door would have to be broken down into parts, requiring extra work, and there would not be adequate space in. the front of the store to do such work during business hours. Mehann admitted on cross-examination that he had not investigated the cost of installing a front door which would be big enough for pallets of groceries to be brought in by forklift. Further cross-examination revealed that there would not be enough space to manipulate the forklift around the front of the store, although it could be run between the shelves of food to the back of the store.

Also called as a witness for Granite Properties Limited Partnership was Darrell Layman, a limited partner. Layman noted that the shopping center had been in continuous operation since 1967 and that the pattern for deliveries had always been to the rear of the individual stores. When asked whether he had “ever seen a semi back up in the rear of the shopping center and go out the way it came in,” Layman responded, “That would be impossible.” On cross-examination, however, Layman ad*431mitted that, although it was very difficult, he had seen semitrailer trucks exit the same way they came in. Layman also acknowledged on cross-examination that he had not investigated the cost of expanding the size of the front doors of the building. He also claimed that it “would seem impossible” to him to put in any kind of a hallway or passageway which would allow equipment to bring supplies into the stores from the front. On redirect examination, Layman explained that the delivery trucks follow no set schedule and, therefore, their presence may overlap at times. He stated that he had seen as many as four or five delivery trucks backed up. Layman opined that there was “no way” the trucks could back up and turn around when there were multiple trucks present.

The other claimed easement concerns ingress and egress over a driveway which leads into the parking area of the apartment complex situated on parcel E. The complex, which was erected in the 1960’s prior to the conveyance of parcel B to the defendants, consists of three buildings containing 36 units. The parking lot, which is situated to the rear of the buildings, provides 72 parking spaces. The only access to the parking lot is by a driveway from Rou des Chateaux, a public street located to the south of the properties. The driveway, which cuts across a small panhandle on the southwestern corner of parcel B, has been in existence since the apartment complex was constructed. The terrain around the apartment complex is flat, including the area in front of the buildings along Prairie Street to the west.

Limited partner Darrell Layman testified at trial that if the area in front of the apartment complex, measuring 300 feet along Prairie Street and 30 feet deep, were to be converted into a parking lot, then there would be room for only 30 parking spaces. He admitted on direct examination that he had not investigated the cost of rocking or asphalting this area for that purpose. Al*432though there was a distance of 20 feet between the apartment buildings, Layman opined that it would not be enough “usable space” to accommodate a driveway from Prairie Street to the existing parking lot because such driveway would interfere with stairways which lead to the basement apartments. Although he admitted that he did not investigate the cost of installing a driveway either between the buildings or adjacent to the end building on the north, Layman concluded that, based on his experience in the layout and design of apartment buildings, “it would be a dangerous situation” for the tenants of the apartments if a driveway were to be run between the buildings or next to their sides. Layman concluded his testimony by claiming that the plaintiff was unaware of any easement problems as to the driveways in question at the time parcel B was deeded to the defendants; otherwise, he asserted, “it would not have been deeded.”

The defendant, Larry Manns, stated that he purchased parcel B from the plaintiff in the summer of 1982. Shortly afterwards, he had a survey made of the property. The survey indicated possible encroachments by the plaintiff as to the driveways in question. Finding no recorded easements following a title search, Manns stated that he notified the plaintiff to discontinue its use of the driveways. On cross-examination, Manns admitted that he saw the two driveways before he bought the subject property.

In its memorandum of judgment, the circuit court made the following findings of fact: (1) the claimed easements had been used by the plaintiff, as common grantor, prior to separation of title; (2) the driveways in question were apparent to defendant Larry Manns when he purchased the property upon which they were situated; (3) there is access from Bethalto Drive to the front of the shopping center where an all-asphalt parking lot *433exists; and (4) Prairie Street, which runs in front of the apartment complex, is flat in terrain, possibly allowing access to the complex. Because there was no evidence presented by the plaintiff as to the expense that would be involved in creating available alternatives affording reasonable means of ingress to and egress from these properties, the court concluded that the plaintiff created the access problems. Reasoning that it would be more convenient for the plaintiff to cross parcel B but not reasonably necessary, the circuit court refused to find easements by implication over the driveways in question and, therefore, denied the plaintiff’s claims for injunctive relief.

Following a post-trial motion by the plaintiff, the circuit court vacated that portion of its judgment concerning the apartment complex easement, stating that “the court finds that the easement to the apartment complex is highly convenient and reasonably necessary for the use and enjoyment of the complex.” As to the claimed easement for the shopping center, the court reasoned that because there is adequate ingress to and egress from the shopping center, as well as through the back of the shopping center, “the use of the defendants’ property would be more convenient, but not reasonably necessary for the plaintiff.” The court therefore affirmed its prior judgment, finding no easement as to the shopping center.

In affirming the circuit court’s judgment granting injunctive relief as to the claimed apartment complex easement, the appellate court majority concluded that the circuit court’s finding that such easement was highly convenient and reasonably necessary for the use and enjoyment of the complex was amply supported by the evidence at trial. (140 Ill. App. 3d 561, 573-74.) In reversing the circuit court’s judgment denying injunctive relief as to the claimed shopping center easement, the appel*434late majority concluded that the circuit court, in focusing upon the degree of necessity required to sustain the implication of an easement, placed inordinate emphasis upon this requirement, thus failing to give proper consideration to the element of prior use. In light of the strong showing of prior use, the appellate majority further concluded that the evidence was sufficient to fulfill the requirement of necessity of the claimed shopping center easement. 140 Ill. App. 3d 561, 573.

The plaintiff contends in this court that it acquired, by implied reservation, easements over the driveways which provide access to the rear of the shopping center located on parcel A and to the parking lot of the apartment complex situated on parcel E. Plaintiff alleges that parcels A, B and E were held in common ownership by the plaintiff and its predecessors in title until 1982, at which time the defendants received a warranty deed to parcel B, that the driveways in question were apparent and obvious, permanent, and subject to continuous, uninterrupted, and actual use by the plaintiff and its predecessors in title until the time of severance of unity of ownership, and that the driveways are highly convenient and reasonably necessary for the beneficial use and enjoyment of the shopping center and the apartment complex. Therefore, the plaintiff maintains that, upon severance of unity of title, the defendants took parcel B subject to the servitudes then existing, as the parties are presumed to convey with reference to the existing conditions of the property.

We note at the outset that the attempt here is to establish easements by implied reservation, rather than by implied grant. As the appellate court in this case correctly observed:

“While the defendant here asserts that no easement may be implied in favor of the grantor of property in derogation of his grant, Illinois courts have made no such *435distinction between easements implied in favor of a grantee (implied grant of easement) and those implied in favor of a grantor (implied reservation of easement). (See 16A Ill. L. & Prac. Easements sec. 16 (1971).) Rather, in stating the rule regarding the creation of easements by implication, the court in Bihss v. Sabolis (1926), 322 Ill. 350, 352, 153 N.E.2d 684, 685, observed:

‘This is not a rule for the benefit of purchasers, only, but is entirely reciprocal. Hence, if instead of a benefit a burden has been imposed upon the portion sold, the purchaser, provided the marks of this burden are open and visible, takes the property with a servitude upon it. The parties are presumed to contract with reference to the condition of the property at the time of the sale, and neither has a right, by altering arrangements then openly existing, to change materially the relative value of the respective parts. [Citations.]’

Thus, Illinois may be said to follow the generally accepted view recognizing the implication of easements in favor of a grantor as well as a grantee. 28 C.J.S. Easements sec. 34 (1941); see 25 Am. Jur. 2d Easements and Licenses sec. 27, at 441 (1966); Annot., 164 A.L.R. 1001, 1003-05 (1946).” Granite Properties Limited Partnership v. Manns (1986), 140 Ill. App. 3d 561, 570.

On the merits, the crucial issue is whether, in conveying that portion of its property now owned by the defendants (parcel B), the plaintiff retained easements by implication over the driveways in question. Our analysis begins with a brief, summary examination of the implied easement principles as they are stated and reflected in both the decisions of this court and the major secondary sources of American real property law.

There are two types of implied easements — the easement by necessity and the easement implied from a preexisting use. The easement by necessity usually arises when an owner of land conveys to another an inner portion thereof, which is entirely surrounded by lands *436owned either by the grantor or the grantor plus strangers. Unless a contrary intent is manifested, the grantee is found to have a right-of-way across the retained land of the grantor for ingress to, and egress from, the landlocked parcel. Similarly, an easement is implied by way of necessity in the deed when the owner of lands retains the inner portion, conveying to another the balance. See, e.g., Diesenroth v. Dodge (1956), 7 Ill. 2d 340, 345; Walker v. Witt (1954), 4 Ill. 2d 16, 23; Finn v. Williams (1941), 376 Ill. 95, 99; Trapp v. Gordon (1937), 366 Ill. 102, 111; Gilfroy v. Randall (1916), 274 Ill. 128, 130-32; see also 2 American Law of Property sec. 8.38 (A.J. Casner ed. 1952); 3 R. Powell, The Law of Real Property sec. 410 (P. Rohan ed. 1987); 2 G. Thompson, Commentaries on the Modern Law of Real Property secs. 361-64 (rep. ed. 1980); see generally 25 Am. Jur. 2d Easements & Licenses sec. 35-37 (1966); 16A Ill. L. & Prac. Easements sec. 19 (1957).

The easement implied from a prior existing use, often characterized as a “quasi-easement,” arises when an owner of an entire tract of land or of two or more adjoining parcels, after employing a part thereof so that one part of the tract or one parcel derives from another a benefit or advantage of an apparent, continuous, and permanent nature, conveys or transfers part of the property without mention being made of these incidental uses. In the absence of an expressed agreement to the contrary, the conveyance or transfer imparts a grant of property with aH the benefits and burdens which existed at the time of the conveyance of the transfer, even though such grant is not reserved or specified in the deed. (See, e.g., Beloit Foundry Co. v. Ryan (1963), 28 Ill. 2d 379, 389; Bihss v. Sabolis (1926), 322 Ill. 350, 352; Powers v. Heffernan (1908), 233 Ill. 597, 599; see also 3 R. Powell, The Law of Real Property sec. 411 (P. Rohan ed. 1987); 2 G. Thompson, Commentaries on the Modern *437Law of Real Property secs. 351, 352 (rep. ed. 1980); Denissen, Private Ways: Title and Title Evidence, 45 Ill. B.J. 686, 689 (1957).) This court has stated on numerous occasions that an easement implied from a preexisting use is established by proof of three elements: first, common ownership of the claimed dominant and servient parcels and a subsequent conveyance or transfer separating that ownership; second, before the conveyance or transfer severing the unity of title, the common owner used part of the united parcel for the benefit of another part, and this use was apparent and obvious, continuous, and permanent; and third, the claimed easement is necessary and beneficial to the enjoyment of the parcel conveyed or retained by the grantor or transferrer. See, e.g., People ex rel. Helgeson v. Hackler (1961), 21 Ill. 2d 267, 270; Sheehan v. Sagona (1958), 13 Ill. 2d 341, 345; Partee v. Pietrobon (1957), 10 Ill. 2d 248, 252; Gilbert v. Chicago Title & Trust Co. (1955), 7 Ill. 2d 496, 499; Kling v. Ghilarducci (1954), 3 Ill. 2d 454, 459; Carter v. Michel (1949), 403 Ill. 610, 617; Leitch v. Hine (1946), 393 Ill. 211, 226; Liberty National Bank v. Lux (1941), 378 Ill. 329, 331-32; see also R. Cunningham, W. Stoebuck & D. Whitman, The Law of Property sec. 8.4 (1984); 16A Ill. L. & Prac. Easements sec. 17 (1957); see generally Leesman, The Rationale of the Quasi-Easement in Illinois, 30 Ill. L. Rev. 963 (1936); Annot., 94 A.L.R. 3d 502 (1979).

As the above discussion indicates, easements created by implication arise as an inference of the intention of the parties to a conveyance of land. This inference, which is drawn from the circumstances surrounding the conveyance alone, represents an attempt to ascribe an intention to parties who had not thought or had not bothered to put the intention into words, or to parties who actually had formed no intention conscious to themselves. To fill these common gaps resulting in incomplete *438thought, courts find particular facts suggestive of intent on the part of the parties to a conveyance. In the case of an easement implied from a preexisting use, proof of the prior use is evidence that the parties probably intended an easement, on the presumption that the grantor and the grantee would have intended to continue an important or necessary use of the land known to them that was apparently continuous and permanent in its nature. Where an easement by necessity is claimed, however, there is no requirement of proof of a known existing use from which to draw the inference of intention. This leaves proof of necessity alone to furnish the probable inference of intention, on the presumption that the grantor and the grantee do not intend to render the land unfit for occupancy.

This essentially is the position taken by the Restatement of Property. The Restatement describes a doctrine creating easements “by implication from the circumstances under which the conveyance was made.” (Restatement of Property sec. 474 (1944).) This implication “arises as an inference of the intention of those making a conveyance.” (Restatement of Property sec. 474, comment b (1944).) The Restatement operates on the basis of eight “important circumstances” from which the inference of intention may be drawn: whether the claimant is the conveyor or the conveyee; the terms of the conveyance; the consideration given for it; whether the claim is made against a simultaneous conveyee; the extent of necessity of the easement to the claimant; whether reciprocal benefits result to the conveyor and the conveyee; 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. (Restatement of Property sec. 476 (1944).) These eight factors vary in their importance and relevance according to *439whether the claimed easement originates out of necessity or for another reason.

In applying the Restatement’s eight important circumstances to the present case, the fact that the driveways in question had been used by the plaintiff or its predecessors in title since the 1960’s, when the respective properties were developed, that the driveways were permanent in character, being either rock or gravel covered, and that the defendants were aware of the driveways’ prior uses before they purchased parcel B would tend to support an inference that the parties intended easements upon severance of the parcels in question. (See Restatement of Property sec. 476, comments i, j (1944).) Although the prior uses which the plaintiff seeks to continue existed during the common ownership of the parcels in question, under circumstances where the defendants were fully informed by physical appearance of their existence, the defendants, nevertheless, argue that there are two factors which overwhelmingly detract from the implication of an easement: that the claimant is the conveyor and that the claimed easement can hardly be described as “necessary” to the beneficial use of the plaintiff’s properties. Relying on the principle that a grantor should not be permitted to derogate from his own grant, the defendants urge this court to refuse to imply an easement in favor of a grantor unless the claimed easement is absolutely necessary to the beneficial use and enjoyment of the land retained by the grantor. The defendants further urge this court not to cast an unreasonable burden over their land through imposition of easements by implication where, as here, available alternatives affording reasonable means of ingress to and egress from the shopping center and the apartment complex allegedly exist.

While the degree of necessity required to reserve an easement by implication in favor of the conveyor is *440greater than that required in the case of the conveyee (Restatement of Property sec. 476, comment c (1944)), even in the case of the conveyor, the implication from necessity will be aided by a previous use made apparent by the physical adaptation of the premises to it. (Restatement of Property sec. 476, comment j (1944).) Moreover, the necessity requirement will have a different meaning and significance in the case involving proof of prior use than it will in a case in which necessity alone supports the implication; otherwise, proof of prior use would be unnecessary. (Restatement of Property sec. 476, comment g (1944).) Thus, when circumstances such as an apparent prior use of the land support the inference of the parties’ intention, the required extent of the claimed easement’s necessity will be less than when necessity is the only circumstance from which the inference of intention will be drawn. While some showing of necessity for the continuance of the use must be shown where a prior use has been made, to the extent that the prior use strengthens the implication, the degree or extent of necessity requisite for implication is reduced. (Restatement of Property sec. 476, comment i (1944).) As one treatise concludes:

“If a previous use is continuous and apparent, an easement may be created by implication even though the need for the use to be made is not sufficiently great to meet the test of necessity as applied in the absence of such a previous use. Hence, the test is phrased in terms of reasonable necessity rather than in terms of unqualified necessity. A use is necessary, it is often said, when without it no effective use could be made of the land to be benefited by it. Where, because of a continuous and apparent previous use, the test of necessity becomes that of reasonable necessity, it is said that a use is reasonably necessary when it is reasonably convenient to the use of the land benefited. In fact, however, reasonable necessity too is a flexible test. The more pronounced a continuous *441and apparent use is, the less the degree of convenience of use necessary to the creation of an easement by implication.” (Emphasis added.) (2 American Law of Property sec. 8.43 (A. J. Casner ed. 1952).)

As the above quote demonstrates, the “degree or extent of necessity” rubric suggests a concept with variable parameters. Professor Thompson notes the various phrases courts have used to describe the “extent of necessity” in cases in which there is proof of prior use:

“Basically, three things are essential to the creation of an easement upon the severance of an estate, upon the ground that the owner before the severance made use of an improvement in one part of the estate for the benefit of another: first, there must be a separation of the title, for, so long as there is unity of ownership, there can be no easement; second, it must appear that before the separation took place, the use which gives rise to the easement shall have been so long continued and so obvious or manifest as to show that it was meant to be permanent; and, third, the easement shall be necessary to the proper enjoyment of the land or to its reasonable, convenient or beneficial enjoyment, ‘reasonably necessary’ to its enjoyment or use, ‘convenient use,’ or ‘clearly necessary’ to its beneficial use.” (Emphasis added.) 2 G. Thompson, Commentaries on the Modern Law of Real Property sec. 352, at 305-07 (rep. ed. 1980).

Professor Powell, in his treatise, offers an alternative solution to the problem of stating the “extent of necessity” concept for the prior use situation that distinguishes it from the similar concept in the easement by necessity. Powell suggests that in a case with proof of prior use, the word “necessity” should be replaced by the phrase “important to the enjoyment of the conveyed quasi-dominant [or quasi-servient] parcel.” As Powell explains:

“The requirement that the quasi-easement must have been ‘important for the enjoyment of the conveyed quasi-dominant [or quasi-servient] parcel’ is highly elastic. *442Some courts say that the use must be one which is ‘reasonably necessary to the enjoyment of the [conveyed or retained] land.’ Others demand a use which is necessary for the beneficial, convenient, comfortable or reasonable enjoyment of such land. When this prerequisite is phrased in terms of ‘necessity, ’ a court is no longer properly considering the problem of implication from a quasi-easement but has crossed over (perhaps unwittingly) into the domain of easements by necessity (see supra par. U10). The English courts have avoided this possible confusion by dispensing completely with this third requirement, finding easements by implication from a quasi-easement which is both ‘apparent’ and ‘continuous,’ and without proof of its ‘importance.’ In the American courts, ‘importance’ strengthens the inference that the claimed easement was intended by the parties.” (Emphasis added.) 3 R. Powell, The Law of Real Property sec. 411[2] (P. Rohan ed. 1987).

Notwithstanding their difference in use of terminology, the authorities agree that the degree or extent of necessity required to create an easement by implication differs in both meaning and significance depending on the existence of proof of prior use. Hence, given the strong evidence of the plaintiffs prior use of the driveways in question and the defendants’ knowledge thereof, we must agree with the appellate court majority that the evidence in this case was sufficient to fulfill the elastic necessity requirement. We approve of the appellate court majority’s application of the facts of this case to the law as we have described it herein. As the appellate majority thoroughly explained:

“While the trial court ruled that the driveway to the rear of the shopping center on the defendant’s property was simply ‘more convenient *** but not reasonably necessary’ to the plaintiff’s use of the property, this finding was premised on the assumption that the driveway on the other side of the shopping center provided adequate access for trucks making deliveries to the stores in the *443shopping center. The evidence was uncontradicted, however, that many of the deliveries were made by semitrailer trucks that would have to ‘jockey around quite a bit’ in order to turn around behind the stores and that there may be as many as four or five trucks backed up at one time, making it impossible to turn around and go out the way they came in. For this reason, the pattern for deliveries to the stores had always been to circle around the shopping center, using the driveways on both sides. Use of the driveway on the defendant’s property was thus quite beneficial to the fair enjoyment of the plaintiff’s property, notwithstanding the driveway located on the other side of the shopping center. In view of these circumstances openly existing at the time of sale, it would be unreasonable to assume that the plaintiff intended to relinquish the use of this servitude on the defendant’s property and assume the burden of trying to find alternate delivery routes to the stores in the shopping center. The evidence, moreover, regarding the difficulty of making deliveries to the front of the shopping center was sufficient to demonstrate the unreasonableness of such an alternative measure, despite the plaintiff’s failure to establish the precise cost of reconstructing the shopping center for that purpose. We hold, therefore, that the plaintiff sustained its burden of proof as to the implied easement for the shopping center and accordingly reverse the trial court’s judgment denying injunctive relief as to this easement.

Finally, with regard to the claimed easement over the defendant’s property to the apartment complex parking lot, we find that the trial court’s determination that such easement was ‘highly convenient and reasonably necessary’ for the use and enjoyment of the complex was amply supported by the evidence at trial. The driveway in question had provided the only access to the parking lot behind the complex for over 15 years, and the evidence showed that the space between the buildings was inadequate to accommodate alternative driveways to the parking lot from Prairie Street, considering the plan of the buildings and the need to insure the safety of residents *444entering and leaving from basement apartments on the side of the buildings. The testimony indicated, moreover, that even if the plaintiff were required to construct a new parking lot in front of the buildings, there would not be adequate parking spaces for the tenants of the apartment building. We hold, therefore, that the trial court’s ruling finding an implied easement for the plaintiff as to the apartment complex driveway should be affirmed.” Granite Properties Limited Partnership v. Mann (1986), 140 Ill. App. 3d 561, 573-74.

For the above reasons, the judgment of the appellate court is affirmed. The cause is remanded to the circuit court of Madison County.

Affirmed and remanded.

JUSTICE GOLDE NHERSH took no part in the consideration or decision of this case.

Justice BENDER

delivered the Opinion of the Court.

I. Introduction

In this adverse possession case, we review the court of appeals’ opinion in Matoush v. Lovingood, 159 P.3d 741 (Colo.App.2006).1 There, the court of appeals concluded that the trial court applied the wrong legal standard to a claim to terminate an easement by adverse possession.2 The easement at issue here creates a right-of-way across Respondents David and Debra Lovin-good’s property for access between Petitioner Carol Matoush’s property and an alley adjacent to Lovingoods’ property. The Lovingoods allege that they have adversely possessed Matoush’s right to use the easement as a right-of-way by openly preventing access between Matoush’s property and the alley by building and maintaining fences perpendicular to the easement area for the statutorily-mandated period of time for adverse possession.3 Matoush claims that the statutorily-mandated period of time for adverse possession of an easement that was expressly ereat-*1265ed but never used, such as the easement in this ease, is not triggered until a need for the easement arises, and that, in this case, no need for the easement arose until she tried to sell her property in 2003.

An easement is terminated by adverse possession upon a showing that use of the easement area was: (1) adverse to the easement holder’s use of the easement; (2) open or notorious; and (3) continuous, without effective interruption, for the statutorily-mandated period of time for adverse possession. To be adverse, use of the easement area must be incompatible or irreconcilable with the easement holder’s right to use the easement.

Following precedent in other jurisdictions, we hold that whether use of the easement area is an incompatible or irreconcilable use sufficiently adverse to trigger the statutorily-mandated period of time for adverse possession of the easement depends upon whether the easement was expressly created and whether the easement has ever been used by the easement holder. When an easement is expressly created but never used, we hold that use of the easement area is not adverse and will not trigger the statutorily-mandated period of time for adverse possession until the easement holder needs to use the easement, demands to use it, and is denied the right to use it.

In this case, the trial court’s findings of fact state that the easement was expressly created by warranty deed in 1901 and that there was no evidence presented at trial regarding whether the easement was used as a right-of-way in 1901. It is undisputed that the easement has never been used as a right-of-way since 1969. Our review of the record reveals that there was no evidence presented at trial regarding whether the easement was ever used as a right-of-way between 1901 and 1969. For these reasons, we conclude and hold that the Lovingoods’ use of the easement area was not adverse to Matoush’s right to use the easement as a right-of-way until Matoush needed to use it for that purpose in 2003. Hence, we reverse the court of appeals’ decision and affirm the trial court’s ruling that Matoush retains her right to use the easement as a right-of-way for access between her property and the alley. We return this ease to the court of appeals to be returned to the trial court for an entry of judgment consistent with this opinion.

II. Facts and Procedural Background

The disputed easement in this case affects three residential properties in a long-established city neighborhood in Colorado Springs, Colorado. Petitioner Carol Matoush is the easement holder who owns the property benefited by the easement, 2108 N. Nevada Ave.4 Respondents David and Debra Lovin-good own one of the properties burdened by the easement, 118 E. Jefferson St.5 Elizabeth Hayes and her children, Ronald Martwick and Bonnie Wellensiek, own the other property burdened by the easement, 122 E. Jefferson St.6

These properties, along with another property owned by Matoush, comprise a 19,000-square-foot block of four city lots, Lots 17, 18, 19, and 20. Lots 19 and 20 were divided to create what is now Matoush’s property in 1901 by the warranty deed that created the disputed easement. The rest of the block *1266was divided into its current configuration in the years following that conveyance. The block of lots is bounded by other residential property to the north, by N. Nevada Ave. to the east, by E. Jefferson St. to the south, and by an alley to the west. Matoush’s property is located on the block’s northeast corner and is 5,000 square feet in size.

Matoush’s other property, which is where Matoush resides but which is not implicated by this case, is also 5,000 square feet in size and is located on the block’s southeast corner. Lovingoods’ property is 4,500 square feet in size and is adjacent to the alley. Hayes’s property is the same size as Lovin-goods’ property and is located between Lo-vingoods’ property and Matoush’s two properties. The easement is a ten-foot-wide, ninety-foot-long strip of land that connects Matoush’s property to the alley. The easement burdens the north, and rear, ten feet of the entire width of Lovingoods’ property and Hayes’s property. The following schematic depicts the parties’ properties:

Matoush acquired title to the property in the block’s northeast corner in 1977 through a warranty deed that specifically referenced an easement across the surface and through the subsurface of Lovingoods’ property and Hayes’s property, reserving “a perpetual right of way over, under, and across the North 10 feet of the West 90 feet of Lot 20 ... for sewer and water pipes and alley purposes.” This language was included in each of the eight deeds in the chain of title to Matoush’s property, which dates back to 1901.7 David Lovingood acquired title to his property in 2001 through a warranty deed and conveyed the property to himself and his wife, Debra Lovingood, in 2003. Neither of the Lovingoods’ deeds nor the deed of their immediate predecessor in title referenced the easement, although at least one prior deed in the chain of title did.8 Elizabeth Hayes acquired title to her property in 1969 through a warranty deed that specifically referenced the easement.9 In 1993, Hayes conveyed the property to herself and her children, Ronald Martwick and Bonnie Wellensiek, through a quit claim deed that did not specifically reference the easement.

When Hayes acquired title to her property in 1969, the easement was being used for sewer pipes and a grease trap. Although the *1267grease trap has since been removed, the sewer pipes running underground between Matoush’s property and the alley are still in use. The trial court found that the easement has not been used as a surface right-of-way across Lovingoods’ property and Hayes’s property for access between Matoush’s property and the alley since at least 1969. At some point in time prior to 1969, fences were built to enclose most of the easement area within the backyards of Lovingoods’ property and Hayes’s property. No evidence was presented at trial regarding whether the easement was ever used as a right-of-way between 1901 and 1969. Since 1969, these fences have been maintained or replaced.

A small gate in the chain link fence between Lovingoods’ property and Hayes’s property has been overgrown with shrubbery, and thus has been unused, since at least 1969. Since the early 1980s, the gate has been at least partially obstructed by a short wood fence on Hayes’s property. Since the late 1990s, the gate has been fully obstructed by a tall wood fence on Lovingoods’ property. The west twenty-eight feet of the easement area is not fenced and remains open to the alley. The trial court also found that a three-wall fiberglass shed located within the easement area on Lovingoods’ property is not a permanent structure. There are other structures within the backyards of Lovingoods’ property and Hayes’s property, but they are not located within the easement area. A carriage house situated within the backyard of Lovingoods’ property bounds the easement area’s southwest corner. A four-wall metal shed situated within the backyard of Hayes’s property bounds the easement area’s southeast corner. The rest of the easement area is covered with grass or other landscaping, including a rock garden within the backyard of Hayes’s property. A tree was once growing within the easement area, but it was removed several years ago.

In 2003, Matoush attempted to sell her property to a buyer who inquired about using the easement as a driveway for vehicle access between Matoush’s property and the alley. There is a driveway on Matoush’s property that provides vehicle access from N. Nevada Ave. to a garage located on Matoush’s property. The buyer has proposed removing the driveway, relocating the garage, paving the easement area, and using the easement as a driveway for vehicle access between the alley and the new garage. The buyer would replace the current driveway with an addition to the house and landscaping, thereby preventing vehicle access to Matoush’s property from N. Nevada Ave.

Thereafter, Matoush brought an action against the Lovingoods, Hayes, Martwick, and WellenSiek to enforce her right to use the easement as a right-of-way for vehicle access between her property and the alley.10 The defendants counterclaimed that use of the easement as a right-of-way was terminated by either abandonment or adverse possession. In the alternative, the defendants argued that use of the easement as a paved driveway for vehicle access between Ma-toush’s property and the alley is outside the scope of the easement.

The parties presented evidence on these claims in a trial to the court. Upon hearing all the evidence, the trial court concluded, in a written order, that the easement had not been terminated by either abandonment or adverse possession. Although the trial court’s conclusions were unambiguous, its analysis seemed to treat abandonment not as a separate and distinct claim, but rather as an element of the Lovingoods’ claim to terminate the easement by adverse possession:

The [trial] Court would conclude, if it were only considering the general law of adverse possession, that the Defendants have proved by a preponderance of the evidence that they have adversely possessed the easement area for over 18 years. Their possession has been actual in that the easement, except for the 28 foot area on the west, has been fenced off and occupied by the Defendants. Their possession has been open and obvious to the Plaintiff. Their possession has been adverse in that *1268the Plaintiff has not been able to use the easement area for an alley. Their possession has been exclusive in that no one except the owner of the property has been able to use the easement area. Their possession has been continuous at least since 1969 and probably longer. The difficulty with the Defendants’ argument is that the majority rule in this country is: “an easement cannot be lost be mere nonuse, however long continued, unless accompanied by an affirmative act on the part of the owner of the easement indicating an unequivocal intention to abandon.”

The trial court also concluded that the defendants failed to prove that use of the easement as a paved driveway for vehicle access between Matoush’s property and the alley is outside the scope of the easement. The trial court acknowledged that Matoush’s proposed use of the easement as a driveway is incompatible with the defendants’ use of the easement area as a backyard. Nevertheless, the trial court rejected the defendants’ claim based on its finding that the defendants failed to present credible evidence regarding use of the easement when it was created. Based on these conclusions, the trial court ruled that the easement would continue to burden Lovingoods’ property and Hayes’s property as a righLof-way, and that the easement could be used as a paved driveway for vehicle access between Matoush’s property and the alley.

The Lovingoods appealed the trial court’s ruling, arguing that the trial court incorrectly required proof of abandonment as part of their claim to terminate the easement by adverse possession. The Lovingoods also argued that the trial court incorrectly determined that building and maintaining fences perpendicular to the easement area was insufficiently adverse, as a matter of law, to trigger the statutorily-mandated period of time for adverse possession of the easement. The Lovingoods did not challenge the trial court’s conclusions regarding termination of the easement by abandonment or use of the easement as a paved driveway.

On appeal, the court of appeals concluded that the trial court erroneously required proof of abandonment to satisfy the elements of a claim to terminate an easement by adverse possession. Abandonment, the court of appeals held, is not an element of a claim to terminate an easement by adverse possession, but rather is an element of a separate and distinct claim to terminate an easement by abandonment. Accordingly, the court of appeals reversed the trial court’s ruling and remanded the case back to that court for findings of fact and conclusions of law to determine whether use of the easement area was: (1) adverse; (2) open or notorious; and (3) continuous without interruption for the statutorily-mandated period of time for adverse possession. As to the element of adversity, the court of appeals specifically instructed the trial court to determine whether building and maintaining fences perpendicular to the easement area was incompatible or irreconcilable with Matoush’s right to use the easement as a right-of-way for access to the alley. In articulating this legal standard, the court of appeals rejected Matoush’s argument that use of the easement area is not adverse and will not trigger the statutorily-mandated period of time for adverse possession until the easement holder needs to use the easement, demands to use it, and is denied the right to use it, as set forth in the New York intermediate appellate court case, Castle Associates v. Schwartz, 63 A.D.2d 481, 407 N.Y.S.2d 717, 723 (N.Y.App.Div.1978).

Thereafter, Matoush petitioned this Court for certiorari review, arguing that the court of appeals erred when it rejected the rule as set forth in Castle Associates. Matoush contends that the Castle Associates rule applies to this case because the easement was expressly granted by warranty deed; because there is no evidence that the easement has ever been used as a right-of-way for access between Matoush’s property and the alley; and because neither Matoush nor her predecessors in interest needed to use the easement until 2003, when a prospective buyer inquired about using the easement as a paved driveway. The Lovingoods urge us to distinguish the Castle Associates rule, construing it narrowly as New York’s highest court of appeals did in Spiegel v. Ferraro, 73 N.Y.2d 622, 543 N.Y.S.2d 15, 541 N.E.2d 15, 17 (1989), by noting that the deed in Castle *1269Associates did not specifically identify the easement’s location, the easement in Castle Associates had never been used for any purpose, and the relevant portion of the easement holder’s property in Castle Associates had never been developed. After reviewing Colorado cases on adverse possession and the ease law from other jurisdictions construing the Castle Associates rule, we agree with Matoush that the rule applies to this case.

III. Analysis

Whether Colorado recognizes a cause of action to terminate an easement by adverse possession and, if so, what elements comprise such a claim are questions of law that we review de novo. See Lakeview Assocs. v. Maes, 907 P.2d 580, 583-84 (Colo.1995) (“An appellate court is not bound by conclusions of law reached by lower courts.”). However, we will not reverse the trial court’s findings of fact unless those findings are clearly erroneous. C.R.C.P. 52.

A. Termination of an Easement by Adverse Possession

We have not previously considered whether adverse use can terminate an easement under Colorado’s adverse possession statute, section 38-41-101(1), C.R.S. (2007). However, we have previously determined that adverse use can create an easement under Colorado’s adverse possession statute. See Lobato v. Taylor, 71 P.3d 938, 950 (Colo.2002) (referencing Colorado’s adverse possession statute in an action to create an easement by adverse possession); Allen v. First Nat’l Bank of Arvada, 120 Colo. 275, 285, 208 P.2d 935, 941 (1949) (same). In Colorado, the General Assembly has declared that the law of adverse possession extends to “any right or interest of or to real property.” § 38-41-101(1) (emphasis added). The statute, which declares eighteen years to be the statutorily-mandated period of time for adverse possession, reads in full:

No person shall commence or maintain an action for the recovery of the title or possession or to enforce or establish any right or interest of or to real property or make an entry thereon unless commenced within eighteen years after the right to bring such action or make such entry has first accrued or within eighteen years after he or those from, by, or under whom he claims have been seized or possessed of the premises. Eighteen years’ adverse possession of any land shall be conclusive evidence of absolute ownership.

Id. (emphasis added).

Because the statute plainly states that it applies to any real property interest, and because the statute does not distinguish between possessory interests such as title to land and non-possessory interests such as title to an easement, we conclude that it applies to an action seeking to terminate an easement by adverse possession.

To determine the elements of such a claim, we turn, as we did in Lobato, to the Restatement (Third) of Property: Servitudes (2000). See Lobato, 71 P.3d at 950 (citing both Colorado case law and the Restatement in its discussion of the elements of a claim to create an easement by adverse possession). The Restatement explains that an easement will be terminated by adverse possession if adverse use of the easement area continues for the statutorily-mandated period of time: “To the extent that a use of property violates a servitude burdening the property and the use is maintained adversely to a person entitled to enforce the servitude for the prescriptive period, that person’s beneficial interest in the servitude is modified or extinguished.” Restatement § 7.7. The Restatement further explains that the elements of a claim to terminate an easement by adverse possession mirror the elements of a claim to create an easement by adverse possession. Id. § 7.7 cmt. b; see also Richard R. Powell, Powell on Real Property § 34.21[1] (2007) (“As in the case of the creation of an easement by prescription, the uses must be adverse, continuous, uninterrupted, and for the prescriptive period.”) (internal cross-reference omitted).

Under the Restatement, an easement is created by adverse possession if the adverse use is: “(1) open or notorious, and (2) continued without effective interruption for the prescriptive period.” Restatement *1270§ 2.17. Colorado case law tracks the Restatement’s language regarding the elements of a claim to create an easement by adverse possession: “An easement by prescription is established when the prescriptive use is: (1) open or notorious; (2) continued without effective interruption for the prescriptive period; and (3) the use was either (a) adverse or (b) pursuant to an attempted, but ineffective grant.” Lobato, 71 P.3d at 950 (citing Restatement §§ 2.16-2.17). Hence, the elements of a claim to terminate an easement by adverse possession mirror the elements of a claim to create an easement by adverse possession. Accordingly, an easement will be terminated by adverse possession upon a showing that use of the easement area was: (1) adverse to the easement holder’s right to use the easement; (2) open or notorious; and (3) continuous without effective interruption for the statutorily-mandated period of time.

Abandonment is not an element of a claim to terminate an easement by adverse possession, but rather is a separate and distinct method for terminating an easement. See Rivera v. Queree, 145 Colo. 146, 149-50, 358 P.2d 40, 42 (1961) (noting that an action to terminate an easement by abandonment is long-established in Colorado, and citing Hoff v. Girdler Corp., 104 Colo. 56, 59, 88 P.2d 100, 102 (1939)). While a claim to terminate an easement by abandonment focuses on the conduct of the easement holder, a claim to terminate an easement by adverse possession focuses on the nature of the use of the easement area. Compare Rivera, 145 Colo. at 149-50, 358 P.2d at 42 (requiring proof that an easement holder intended to abandon the easement), with Restatement § 7.7 (requiring proof that use of the easement area was adverse, open and notorious, and continuous).

B. The Element of Adversity

As we have noted, a claim to create an easement by adverse possession is similar to a claim to terminate an easement by adverse possession. 7 Thompson on Real Property § 60.08(b)(7) (David A. Thomas ed., 2007) (“Just as an easement can be won by prescription, similar to adverse possession, so can it be lost.”). What distinguishes these claims is a difficult concept to grasp. When an easement is created by adverse possession, a party uses land that is not in his or her possession, and does so in a way that is adverse to the property rights of the party who possesses the land. In contrast, when an easement is terminated by adverse possession, a party uses land that is in his or her possession, but does so in a way that is adverse to the property rights of the easement holder who does not possess the land. Powell, supra, § 34.21 [1], In other words, because an easement does not dispossess the owner of the property burdened by the easement, the owner of the property burdened by the easement retains the right to use the property, including the easement area, in any way that is consistent with the easement holder’s use of the easement. Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1234 (Colo.1998); see also Restatement § 4.9.

Because of this conceptual difference, a court’s evaluation of the element of adversity will be different in a claim to terminate an easement by adverse possession than it is in a claim to create an easement by adverse possession. Powell, supra, § 34.21[1], A claim to terminate an easement by adverse possession requires a stronger showing of adverse use than a claim to create an easement by adverse possession does. See id. For instance, the element of adversity in a claim to terminate an easement by adverse possession requires more than a showing of possession of the easement area, which is usually sufficient to demonstrate adversity in a claim to create an easement by adverse possession. Thompson, supra, § 60.08(b)(7)(i).

Only use that is “incompatible or irreconcilable with the [easement holder’s] authorized right of use” will be sufficient to justify terminating an easement by adverse possession. Powell, supra, § 34.21[1], Therefore, a party claiming to have terminated an easement by adverse possession must prove “that the use interferes significantly enough with the easement owner’s enjoyment of the easement to give notice that the easement is under threat.” Thompson, supra, § 60.08(b)(7)(i). The challenge of a court’s inquiry into the element of adversity is that *1271“there is no easily drawn definition of what use is adverse to an easement holder’s rights.” Id. Thus, whether use of the easement area is an incompatible or irreconcilable use sufficiently adverse to trigger the statutorily-mandated period of time for adverse possession depends upon the circumstances of each case. Id.

Nonuse of an easement is a circumstance that must be considered as part of a court’s inquiry into the element of adversity. See Powell, swpra, § 34.21[1].11 When an easement is not in use, the owner of the property burdened by the easement enjoys “an enlarged scope of privileged action.” Id. Logically then, the owner of a property burdened by an easement enjoys the largest scope of privileged action when the easement has never been used. When an easement is created but never used, the easement holder’s property rights are said to remain “titular and dormant.” J.E. Macy, Annotation, Loss of Private Easement by Nonuser or Adverse Possession, 25 A.L.R.2d 1265 (1952).

Titular or dormant easements illustrate the tension between the rights of the easement holder and those of the owner of the property burdened by the easement. When an easement is expressly created but never used, the extent to which the owner of the property burdened by the easement can use the easement area expands to resemble the owner’s right to use the property as if it were unburdened by the easement. At the same time, the easement holder’s right to use the easement receives greater protection because the easement holder’s right to use the easement has not yet come into functional existence.

The modern rule in such cases is that use of the easement area, even in a way that prevents use of the easement, is not adverse and will not trigger the statutorily-mandated period of time for adverse possession until the easement holder needs to use the easement, demands to use it, and is refused the right to use it:

[W]here an easement has been created but no occasion has arisen for its use, the owner of the servient tenement may fence his land and such use will not be deemed adverse to the existence of the easement until such time as (1) the need for the right of way arises, (2) a demand is made by the owner of the dominant tenement that the easement be opened and (3) the owner of the servient tenement refuses to do so.

Castle Assocs. v. Schwartz, 407 N.Y.S.2d at 723.12

*1272Castle Associates is the first modern statement of this rule, and it has been followed in numerous jurisdictions.13 The easement in Castle Associates was expressly created by deed in 1903 for ingress and egress across a piece of property, but the location of the easement was not specifically identified in the conveyance. Id. at 722. In 1976, seventy-three years after the conveyance, the easement holder decided to develop the portion of the property near the easement and brought an action to locate and use the easement as a right-of-way. Id. The owner of the property burdened by the easement counterclaimed, arguing that he had terminated the easement by adverse possession by building fences around the boundary of the property in 1956 and 1957, and by maintaining the fences since then, thereby preventing the easement holder from using the right-of-way for the statutorily-mandated period of time. Id. The Castle Associates court disagreed, noting that building a fence on the property burdened by the easement “prior to any demand for an opening of the right of way was not adverse to the existence of the easement.” Id. at 723. The Castle Associates court concluded that the easement holder was entitled to use the right-of-way and determined that the location of the easement would be across the northwest corner of the property burdened by the easement. Id.

New York’s highest appellate court later construed the Castle Associates rule to be a “narrow exception” which applies only to easements that have not been “definitively located and developed through use.” Spiegel v. Ferraro, 543 N.Y.S.2d 15, 541 N.E.2d at 17 (refusing to apply the Castle Associates rule to an easement that was “definitively and functionally in existence” as a right-of-way prior to the construction of a fence that prevented use of the right-of-way). The Spiegel court explained that the Castle Associates rule is consistent with the general law of adverse possession because the rule ensures that the owner of the property right has notice that his or her right is under threat:

The theory underlying the exception is that easements not definitively located and developed through use are not yet in functional existence and therefore the owner of the easement could not be expected to have notice of the adverse claim until either the easement is opened or the owner demands that it be opened. It is only at such point, therefore, that the use of the easement by another is deemed to be adverse to the owner and the prescriptive period begins to run. So understood, the exception is consistent with the general theory of adverse possession — that the real owner may, by unequivocal acts of the usurper, have notice of the hostile claim and be thereby called upon to assert his legal title.

Id. (internal citations and quotation marks omitted). The Spiegel court did not define the phrase “definitively located and devel*1273oped through use,” and it is unclear whether the phrase means that the easement’s location was not specified in the conveyance, that the easement holder’s property remained undeveloped, or that the easement had never been used.14

Despite possible uncertainty created by Spiegel as to the factual circumstances to which the Castle Associates rule applies, courts in other jurisdictions have applied the rule to myriad factual circumstances. Courts apply the Castle Associates rule irrespective of whether the easement’s location was specifically identified in the conveyance, or whether the easement holder’s property had been developed.15 Although these cases are factually unique, courts have consistently applied the Castle Associates rule to cases in which the easement at issue was expressly created but never used.

There are a number of policy reasons that support the Castle Associates rule. First, as we previously explained, the rule is consistent with the notion that the owner of the property burdened by the easement retains the right to use his or her property in any way that does not interfere with the easement holder’s right to use the easement. Second, the rule comports with the long-established principle that an easement cannot be lost by mere nonuse. Third, this rule respects recorded easements, which are easily traceable through title instruments. Fourth, purchasers of property have a duty of inquiry to determine whether an easement burdens the property and are on constructive notice of such easements. Fifth, the purchase price of property reflects the benefit or burden of an easement, and the rule reinforces bargains made between buyers and sellers. Last, the rule prevents an easement holder from incurring litigation and expense to guard his or her right to use the easement, as one court noted; “[Wjithout such a rule, [easement holders] may feel compelled to start litigation, clear obstacles, or otherwise force an issue ... merely to keep alive a record easement right, even though the need to use the easement has not yet fully matured.” Brooks v. Geraghty, No. 288354, 2005 WL 767867, at *9 (Mass.Land Ct. Apr.6, 2005).

The Lovingoods argue that the Castle Associates rule imposes an additional element that is not contemplated by Colorado’s adverse possession statute and case law. We think otherwise.

As applied, the Castle Associates rule does not create a new element for claims to terminate an easement by adverse possession. Rather, the rule informs a court’s inquiry as to the element of adversity, specifically when use of the easement area becomes incompatible or irreconcilable so as to trigger the statutorily-mandated period for adverse possession in cases where the easement was expressly created but never used. The Castle Associates rule not only reinforces Colorado’s policy concerns regarding land use but also conforms to the state’s adverse possession statute and case law. On this basis, we follow the Castle Associates rule and hold that if an easement is expressly created but never used, then use of the easement area is not adverse and will not trigger the statutorily-mandated period of time for adverse possession until the easement holder needs to use the easement.

C. Application

In this case, the Lovingoods allege that they have adversely possessed Ma-*1274toush’s right to use the easement as a right-of-way by maintaining fences perpendicular to the easement area, thereby preventing access between Matoush’s property and the alley for the statutorily-mandated period of time. Matoush contends that the Castle Associates rule applies here and argues that the Lovingoods’ use of the easement area was not adverse until she needed to use the easement as a surface right-of-way in 2003, when a prospective buyer inquired about using the easement as a paved driveway. The Lovin-goods argue that the Castle Associates rule does not apply to this case because the easement’s location is specifically identified in the warranty deed and because the easement has been used by Matoush for sewer pipes.

As previously discussed, other jurisdictions have applied the Castle Associates rule even if the easement’s location was specifically identified in the conveyance and even if the claim was to terminate only part of the easement by adverse possession. In other words, courts in other jurisdictions determine whether the Castle Associates rule applies by considering whether the easement was expressly created and whether the easement has ever been used for the particular purpose the claimant is seeking to terminate. Hence, whether the Castle Associates rule applies to this case, as Matoush argues, depends upon whether the easement was expressly created and whether it has ever been used as a right-of-way. The fact that the easement has been used for sewer pipes since at least 1969 is irrelevant to the Lovingoods’ claim that they have terminated Matoush’s right to use the easement as a surface right-of-way.

It is undisputed that the easement was expressly created by warranty deed in 1901. It is also undisputed that the easement has not been used as a right-of-way for access between Matoush’s property and the alley since at least 1969. As to whether the easement was used as a right-of-way prior to 1969, the trial court found that there was no evidence presented at trial regarding use of the easement in 1901, other than speculation that the easement may have been used for coal deliveries by wagon. This finding of fact was made in connection with the trial court’s determination that use of the easement as a paved driveway is within the scope of the easement. Our review of the record reveals that there was no evidence presented at trial regarding whether the easement was ever used as a right-of-way between 1901 and 1969.

We note that a small gate is located in the chain link fence between Lovingoods’ property and Hayes’s property, but it has been overgrown with shrubbery since at least 1969 and has been obstructed by at least one fence since the early 1980s. Whether the existence of this small gate demonstrates that the easement has been used as a right-of-way has never been argued by the parties. For this reason, and because the Lovingoods do not challenge the sufficiency of evidence presented at trial, we defer to the trial court’s findings of fact. See First Interstate Bank v. Tanktech, Inc., 864 P.2d 116, 122 (Colo.1993) (‘We defer to findings of fact by the trial court unless clearly erroneous and not supported by the record.”).

Although the trial court made its findings of fact in connection with a different claim than the one that is raised in this appeal, we conclude that the trial court’s findings of fact are adequately developed and sufficiently related to the key legal issue in this appeal to support our decision to resolve this case on the merits. See ITT Diversified Credit Corp. v. Couch, 669 P.2d 1355, 1360 (Colo.1983) (resolving case on the merits where facts were not disputed and pivotal issues involved questions of law); see also People v. D.F., 933 P.2d 9, 14 (Colo.1997) (noting that we remand for further findings of fact when appellate review is hindered by an absence of findings of facts that are key to contested issues, or when unresolved evidentiary conflicts exist with regard to material facts).

Because there was no evidence presented at trial regarding use of the easement in 1901 or regarding whether the easement was ever used as a right-of-way between 1901 and 1969, and because there is undisputed evidence that the easement has never been used since at least 1969, we hold that the Castle Associates rule applies to this case and that the Lovingoods’ use of the easement area was not adverse to Matoush’s right to use the easement as a right-of-way until Matoush *1275needed to use the easement for that purpose in 2003. Therefore, the Lovingoods have not terminated Matoush’s right to use the easement as a surface right-of-way.

IV. Conclusion

We reverse the court of appeals’ decision, affirm the trial court’s ruling that Matoush retains her right to use the easement as a right-of-way for access between her property and the alley, and return this case to the court of appeals to be returned to the trial court for an entry of judgment consistent with this opinion.

Justice EID,

concurring.

I join the opinion of the court. I write separately, however, to note my disagreement with the dissenting opinion’s suggestion that the court’s ruling is inconsistent with Colorado law and based on principles “borrow[ed]” from elsewhere. Dissent op. at 1276.

It is well established under Colorado law that servient estate owners, such as the Lovingoods, may use their property in any way not inconsistent with the easement holder’s interest. See, e.g., Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1234 (Colo.1998); Bijou Irrigation Dist. v. Empire Club, 804 P.2d 175, 183 (Colo.1991) (citing eases). Thus, the servient estate owner cannot demonstrate adverse possession simply by showing that he used the property, because he is clearly entitled to do so as the owner of the property. Instead, the servient estate owner must show that his particular use of the property is clearly inconsistent and incompatible with the easement holder’s interest in order to show that the use is truly “adverse.” Maj. op. at 1270-71; § 38-41-101(1), C.R.S. (2007).

In this ease, we consider what sort of use by the servient estate owner is required to show adversity when the easement holder has not developed the easement in any way. Where, as here, an easement holder has not developed the easement, the servient estate owner may use the easement area to a far greater extent than in a case involving a developed easement. By way of example, let us suppose that Matoush had developed the easement as a driveway in order to access the alley with her vehicle. Then, let us suppose that the Lovingoods erected the structures that they did over the driveway (i.e., the fencing, the grass, and the shed). Those uses of the easement area would easily be deemed inconsistent and incompatible with Matoush’s interest in having a clear path to the alley. Here, by contrast, Ma-toush had not developed the easement, and therefore the structures that were built by the Lovingoods — all of which could be easily removed at some future point when Matoush wanted to use the easement — were not inconsistent or incompatible with Matoush’s interest. Adversity of use cannot be determined in a vacuum, but rather must be determined in comparison to the interest sought to be extinguished — in this case, an undeveloped easement.

In my view, the analysis the court employs today is simply an application of a longstanding principle of Colorado law — namely, that the servient estate owner may use his property to the fullest extent as long as that use is not inconsistent with the easement holder’s interest, and that therefore only a use that is clearly inconsistent and incompatible with that interest will be deemed “adverse” — to a situation involving an undeveloped easement. As such, it does not borrow a principle from other jurisdictions, as the dissent suggests, but rather finds instructive a number of cases from other jurisdictions that apply the same principle we have recognized to facts similar to those presented here.1 See Zab, *1276Inc. v. Berenergy Corp., 136 P.3d 252, 262 (Colo.2006) (Eid, J., specially concurring).

Justice COATS,

dissenting.

I too would find that an easement is a right or interest in real property, the exercise or enforcement of which may be lost by failing to take appropriate action within the statutorily prescribed limitations period; but unlike the majority, I can find no justification for the judicial imposition of a special rule of accrual for one narrow class of easements, largely exempting them from loss by adverse possession. It seems clear that the majority’s new rule, modeled after variations recently adopted in a handful of other jurisdictions, does not reflect the common law of England and, as best I can determine, does not even embody the rationale of the jurisdiction that thought it up. Most importantly, however, even if I considered such a rule meritorious policy, I would nevertheless reject its judicial adoption as a flagrant usurpation of the legislative function, allocated elsewhere by our constitution.

Despite the majority’s protestations to the contrary, in my view it carves out an exception to section 38^41-101 of the revised statutes, a legislatively prescribed bar to any action to enforce an interest in real property not brought within eighteen years after the right to do so first accrues. Solely for easements that were expressly created but never yet put to use, the majority declares that a cause of action to enforce the easement against obstruction by the servient estate accrues only upon need, demand, and refusal, rather than simply upon open, notorious, and incompatible usage by the servient estate.

Even in New York, the state from which the majority borrows the idea for this exception, see Castle Associates v. Schwartz, 63 A.D.2d 481, 407 N.Y.S.2d 717, 723 (N.Y.App.Div.1978), that jurisdiction’s high court limits the exception’s applicability to easements the precise locations of which are as yet undetermined. See Spiegel v. Ferraro, 73 N.Y.2d 622, 543 N.Y.S.2d 15, 541 N.E.2d 15, 17 (1989) (explaining Castle as addressing only unlocated easements, like the one actually involved in that case). At least when limited in this fashion, the rule is rationally related to the important requirement of notice to the dominant estate, which has always been integral to acquisition by adverse possession.

By contrast, where, nonuse notwithstanding, there is certainty about the location of the easement (as in this case) the majority’s policy justifications amount to little more than arguments against adhering to the doctrine of adverse possession. By shifting the focus of “adversity” for this tiny class of cases, from a concern for the nature and permanence of the encroachment itself to a concern strictly for the existing easement-holder’s interest in putting an end to it, the majority’s rigid, mechanical (but universally applicable) rule1 actually flies in the face of the policies and equities furthered by the doctrine of adverse possession. Presumably, the majority’s rule would permit a forced removal of even a long-standing permanent structure, like a house, as long as the easement holder brings his action within eighteen years of actually deciding that he wants to make use of his easement and expressly demanding the structure’s removal.

Whether the majority’s rule has merit from a policy perspective, however, I consider a legislative matter. The majority, which dates its so-called “modern rule” from 1978, does not assert that it existed at the common law, as the General Assembly has allowed that law to remain in effect in this jurisdiction, see § 2-4-111, C.R.S. (2007), and the Restatement most certainly does not. See Restatement (Third) Property: Servitudes § 7.7 (2000). Nor do I consider this court constitutionally empowered to develop new exceptions to accepted common law doctrines, any more than legislative provisions, *1277under the guise of announcing evidentiary guidelines. To decide, as the majority does today, that in the limited case of expressly created but never used easements, the right to bring an action to enforce an obstructed easement accrues only upon actual need and unsuccessful demand by the easement holder, rather than upon any use openly incompatible with the easement holder’s property interest, amounts to nothing less than judicially legislating substantive law.

Because I believe our form of government allocates to the General Assembly such legislative decisions, I respectfully dissent.

Mr. Justice Day

delivered the opinion of the court.

Buchanan, plaintiff in error, brought an action in the Chancery Branch of Jefferson Circuit Court of Kentucky for the specific performance of a contract for the sale of certain real estate situated in the City of Louisville at the corner of 37th Street and Pflanz Avenue. The offer in writing to purchase the property contained a proviso:

“It is understood that I am purchasing the above property for the purpose of having erected thereon a house which I propose to make my residence, and it is a distinct *70part of this agreement that I shall not be required to accept a deed to the above property or to pay for said property unless I have the right under the laws of the State of Kentucky and the City of Louisville to occupy said property as a residence.” This offer was accepted by the plaintiff.

To the action for specific performance the defendant by way of answer set up the condition above set forth, that he is a colored person, and that on the block of which the lot in controversy is sl part there are ten residences, eight of which at the time of the making of the contract were occupied by white people, and only two (those nearest the lot in question) were occupie'd by colored people, and that under and by virtue of the .ordinance of the City of Louisville, approved May 11, 1914, he would not be allowed to occupy the lot as a place of residence.

In reply to this answer the plaintiff set up, among other things, that the ordinance was in conflict with the Fourteenth Amendment to the Constitution, of the United States, and hence no defense to the action for specific performance of the contract.

In the court of original jurisdiction in Kentucky, and in the Court of Appeals' of that State, the case was made to turn upon the constitutional validity of the ordinance. The Court of Appeals of Kentucky, 165 Kentucky, 559, held the ordinance valid and of itself a complete defense to the action.

The title of the ordinance is: “An ordinance to prevent conflict and ill-feeling between the white and colored races in the City of Louisville, and to preserve the. public peace and promote the general welfare by making reasonable provisions requiring, as far as practicable, the use of separate blocks for residences, places of abode and places of. assembly by white and colored people respectively.”

By the first section of the ordinance it is made unlawful for. any colored person to move into and occupy as a *71residence, place of abode, or to establish and maintain as a place of public assembly any house upon any block upon which a greater number of houses are occupied as residences, places of abode, or pláces of public assembly by white people than are occupied as residences, places of abode, or places of public assembly by colored people.

Section 2 provides that it shall be unlawful for any white person to move into and occupy as a residence, place of abode, or to establish and maintain as a place of public assembly any house upon any block upon which a greater number of houses are occupied as residences, places of abode or places of public assembly by colored people than are occupied as residences, places of abode or places of public assembly by white people.

Section 4 provides that nothing in the ordinance shall affect the location of residences, places of abode or places of assembly made previous to its approval; that,nothing contained therein shall be construed so as to prevent the occupancy of residences, places of abode or places of assembly by white or colored servants or employees of occupants of such residences, places of abode or places of public assembly on the block on which they are so employed, and that nothing therein contained shall be construed to prevent any person who, at the date of the pas-, sage of the ordinance, shall have acquired or possessed the right to ocqupy any building as a residence, place of abode or place of assembly from exercising such a right; that nothing contained in the ordinance shall prevent the owner of any building, who when the ordinance became effective, leased, rented, or occupied it as a residence, place of abode or place of public assembly for colored persons, from continuing to rent, lease or occupy such residence, place of abode or place of assembly for such persons, if the owner shall so desire; but if such house should, after the passage of the ordinance, be at any time leased, rented or occupied as a residence, place *72of abode or place of assembly for white persons, it shall not thereafter be used for colored persons, if such occupation would then be a violation of section one of the ordinance; that nothing contained in the ordinance shall prevent the owner of any building, who when the ordinance became effective leased, rented or occupied it as a residence, place of abode, or place of assembly for white persops from continuing to rent, lease or occupy such residence, place of.abode or place of assembly for such purpose, if the owner shall so desire, but if such house should, after the passage of the ordinance, be at any time leased, rented or occupied as a residence, place of abode or place of assembly for colored persons, then it shall not thereafter be used for white persons, if such occupation would then be a violation of section two thereof.

The ordinance contains other sections and a violation of its provisions is made an offense. .

The assignments of error in this court attack the ordinance upon the ground that it violates the Fourteenth Amendment of the Constitution of the United States, in that it abridges the privileges knd immunities of citizens of the United States to acquire and enjoy property, takes property without, due process of law, and denies equal protection of the laws.

The objection is made that this writ of error should be dismissed because the alleged denial of constitutional rights involves only the rights of colored persons, and. the plaintiff in error is a white person. This court has frequently held that while an unconstitutional act is no law, attacks upon the validity of laws can only be entertained when made by those whose rights are directly affected by the law or ordinance in question. Only such persons, it has been settled, can be heard to attack the constitutionality of the law or ordinance. ' But this case does not run counter to that principle.

The property here involved was sold by the plaintiff. *73in error, a- white man, on the terms stated, to a colored man; the action for specific performance was entertained in the court below, and in both courts the plaintiff’s right to have the contract enforced was denied solely because of the effect of the ordinance making it illegal for a colored person to occupy the lot sold. But for the ordinance the state courts would have enforced the contract, and the defendant would have been compelled to pay the purchase price and take a conveyance of the premises. The right of the plaintiff in error to sell his property was directly involved and necessarily impaired because it was held in effect that he could not sell the lot to a person of color who was willing and ready to acquire the property, and had obligated himself to take it. This case does not come within the class wherein this court has. held that where one seeks to avoid the enforcement of a law or ordinance he must present a grievance of his own, and not rest the attack upon the alleged violation of another’s rights. In this case the property rights of the plaintiff in error are directly and necessarily involved. See Truax v. Raich, 239 U. S. 33, 38.

We pass then to a consideration of the case upon its merits. This ordinance prevents the occupancy of a lot in the City of Louisville by a person of color in a block where the greater number of residences are occupied by white persons; where such a majority exists colored persons are excluded. This interdiction is based wholly upon color; simply that and nothing more. In effect, premises situated as are those in question in the so-called white block are effectively debarred from sale to persons of color, because if sold they cannot be occupied by the purchaser nor by him sold to another of the same color.

This drastic measure is sought to be justified under the authority of the State in the exercise of the police power. It is said such legislation tends to promote the public peace by preventing racial conflicts; that it tends to main*74tain racial purity; that it prevents the deterioration of property owned and occupied by white people, which deterioration, it is contended, is sure to follow the occupancy of adjacent premises by persons of color.

The authority of the State to pass laws in the exercise of the police power, having for their object the promotion of the'public health, safety and welfare is very broad as has been affirmed in numerous and recent decisions of this court. Furthermore, the exercise of this power, embracing pearly all legislation of a local character, is not to be interfered with by the courts where it is within the scope of legislative authority and the means adopted reasonably tend to accomplish a lawful purpose." But it is equally well established that the police power, broad as it is, cannot justify the passage of a law or ordinance which runs- counter to' the limitations of the Federal Constitution; that principle has been so frequently affirmed in this court that we need not stop to cite the cases.

The Federal Constitution and laws, passed within its Authority are by the express terms of that instrument made the supreme law of the land. The Fourteenth Amendment protects life, liberty, and property from invasion by the States without due process of law. Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property. Holden v. Hardy, 169 U. S. 366, 391. Property consists of the free use, enjoyment, and disposal of a person’s acquisitions without control or diminution save by the láw of the land. 1 Blackstone’s Commentaries (Cooley’s Ed.), 127.

True it is that dominion over property springing from ownership is not absolute and unqualified. The disposition and use of property may be controlled in the exer-¿ cise of the police power in the interest of the public health, convenience, or welfare. Harmful occupations may be *75controlled' and regulated. Legitimate business may also be regulated in the interest of the public. Certain uses of property may be confined to portions of the municipality other than the resident district, such as livery stables, brickyards and the like, because of the impairment of the health and comfort of the occupants of neighboring property. Many illustrations might be given from the decisions of this court, and other courts, of this principle, but these cases do not touch the one at bar.

The concrete question here is: May the occupancy, and, necessarily, the purchase and sale of property of which occupancy is an incident, be inhibited by the States, or by one of its municipalities, solely because of the color of the proposed occupant of the premises? That one may dispose of his property, subject only to the control of lawful enactments curtailing that right in the public interest, must be conceded. The question now. presented makes it pertinent to enquire into the constitutional right of the white man to sell his property to a colored man, having in view the legal status of the purchaser and occupant.

Following the Civil War certain amendments to the Federal Constitution were adopted, which have become an integral part of that instrument, equally binding upon all the States and fixing certain fundamental rights which all are bound to respect. The Thirteenth Amendment abolished slavery in the United States and in all places subject to their jurisdiction, and gave. Congress power to enforce the Amendment by appropriate legislation. The Fourteenth Amendment made all persons born or natúralized in the United States citizens of the United States and of the States in which they reside, and provided that- no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, and that no State shall deprive any person of life, liberty, or property without due process' *76of law, nor deny to any person the equal protection of the laws.

The effect of these Amendments was first dealt with by this court in The Slaughter House Cases, 16 Wall. 36. The reasons for the adoption of the Amendments were elaborately considered by a court familiar with the times in which the necessity for the Amendments arose and with the circumstances which impelled their adoption. In that case Mr. Justice Miller, who spoke for the majority, pointed out that the colored race, having been freed from slavery by the Thirteenth Amendment, was raised to the dignity of citizenship and equality of civil rights by the Fourteenth Amendment, and the States were prohibited from abridging the privileges and immunities of such citizens, or depriving any person of life, liberty, or property without due process of law. While a principal purpose of the latt.er Amendment was to protect persons of color, the broad language used was de'emed sufficient to protect all persons, white or black, against discriminatory legislation by the States. This is now the settled law. In many of the cases since arising the question of color has not been involved and the cases have been decided upon alleged violations of civil or property rights irrespective of the race or color of the complainant. In The Slaughter House Cases it was recognized that the chief inducement to the passage of the Amendment was the desire to extend federal protection to the recently emancipated race from unfriendly and discriminating legislation by the States.

In Strauder v. West Virginia, 100 U. S. 303, this court held that a colored person charged with an offense was denied due process of law by a statute which prevented colored men from sitting on the jury which tried him. Mr. Justice Strong, speaking for the court, again reviewed the history of the Amendments, and among other things, in speaking of the Fourteenth Amendment, said:

*77“It [the Fourteenth Amendfnent] was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by . white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States. It not only gave citizenship and the privileges of citizenship to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions by appropriate legislation. . . . It ordains that no State shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States. ... It ordains that no State shall deprive any person-of-life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws, of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? . . ,

“The Fourteeñth Amendment makes no attempt to enumerate the rights it designed to protect. It speaks in general terms, and those are as comprehensive as possible. Its language is prohibitory; but every prohibition implies the .existence of rights and immunities, prominent among which is an immunity from inequality of legal protection, either for life, liberty, or property. Any State action that denies this immunity to a colored man is in conflict with the Constitution.”

Again this court in Ex parte Virginia, 100 U. S. 339, 347, speaking of the Fourteenth Amendment, said:

“Whoever, by virtue of public, position under a State government, deprives another of property, life, or liberty, *78without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the .State, and is clothed with the State’s power, his act is that of the State.”

In giving legislative aid to these constitutional provisions Congress enacted in 1866, c. 31, § 1, 14 Stat. 27, [Rev. Stats¡, § 1978] that:

"All citizens of the United States shall have the samé ■right in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”

And in 1870, by c. 114, § 16, 16 Stat. 144 [Rev. Stats., § 1977] that:

"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses and exactions of every kind, and no other.”

In the face of these constitutional and statutory provisions, can a white man be denied, consistently with due process of law, the right to dispose of his property to a purchaser by prohibiting the occupation of it for the sole reason that the purchaser is a person of color intending to occupy the premises as a place of residence?

The statute of 1866, originally passed under sanction of the Thirteenth Amendment, 14 Stat. 27, and practically reenacted after the adoption of the Fourteenth Amendment, 16 Stat. 144, expressly provided that all citizens of the United States in any State shall have the same right to purchase property as is enjoyed by white citizens. Colored persons are citizens of the United States and have, the right to purchase property and enjoy, and *79use the same without laws discriminating against them, solely on account of color. Hall v. DeCuir, 95 U. S. 485, 508. These enactments did not deal with the social rights of men, but with those fundamental rights in property which it was intended to secure upon the same terms to. citizens of every race and color. Civil Bights Cases, 109 U. S. 3, 22. The Fourteenth Amendment and these statutes enacted in/furtherance of its purpose operate to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color.

The defendant in error insists that Plessy v. Ferguson, 163 U. S. 537, is controlling in principle in favor of the judgment of the court below. In that case this court held that a provision of a statute of Louisiana requiring railway companies carrying passengers to provide in their coaches equal but separate accommodations for the white and colored races did not run counter to the provisions of the Fourteenth Amendment. It is to be observed that in that case there was no 'attempt to deprive persons of color of transportation in the coaches of the public carrier, and the express requirements were for equal though separate accommodations for the white and colored races. In Plessy v. Ferguson, classification of accommodation was permitted upon the basis of equality for both races.

In the Berea College Case, 211 U. S. 45, a state statute was sustained in the courts of Kentucky, which, while permitting the education of white persons and negroes in different localities by the same incorporated institution, prohibited their attendance at the same place, and in this court the judgment of the Court of Appeals of Kentucky was affirmed solely upon the reserved authority of the legislature of Kentucky to alter, amend, or repeal charters of its own corporations, and the question here involved was neither discussed nor decided.

In Carey v. City of Atlanta, 143 Georgia, 192, the Su*80preme Court of Georgia, holding an ordinance, similar in principle to the one herein involved, to be invalid, dealt with Plessy v. Ferguson, and The Berea College Case, in language so apposite that we quote a portion of it:

“In each instance the complaining person was afforded the opportunity to ride, or to attend institutions' of learning, or afforded the thing of whatever nature to which in the particular case He was entitled. The most “that was done was to require him as a member of-a class to conform with reasonable rules in regard to the separation of the races. In none of them was he denied the right to use, control, or dispose of his property, as in this case. Property of a person, whether as a member of a class or as an individual, cannot be taken without due process of law. In the recent case of McCabe v. Atchison &c. Ry. Co., 235 U. S. 151, where the court had under consideration a statute which allowed railroad companies to furnish dining-cars for white people and to refuse to furnish dining-cars • altogether for colored persons, this language was used in reference to the contentions of the attorney-general: ‘This argument with respect to volume of traffic seems to us to be withdut merit. It makes the constitutional right depend upon the number of persons who may be discriminated against, whereas the essence of the constitutional right is that it is a personal one.’ . . .

“The effect of the ordinance under consideration was not merely to regulate a business or the like, but was to destroy the right of the individual to acquire, enjoy, and dispose of his property. Being of this character, it was void as being opposed to the due-process clause of the constitution.”

That there exists a serious and difficult problem arising from a feeling of race hostility which the law is powerless to control, and to which it must give a measure of consideration, may be freely admitted. But its solution *81cannot be promoted, by depriving citizens of their constitutional rights and privileges.

As we have seen, this court has held laws valid-which separated the races on the basis of equal accommodations in public conveyances, and courts of high authority have held enactments lawful which provide for separation in the public schools of white and colored pupils where equal privileges are given. But in view of the rights secured by the Fourteenth Amendment to the Federal Constitution such legislation must have its limitations, and cannot be sustained where the exercise of authority exceeds the restraints of the Constitution. We think these limitations are exceeded in laws and ordinances of the character now before us.

It is the purpose of such enactments, and, it is frankly avowed it will be their ultimate effect, to require by law, at least in residential districts, the compulsory separation of the races on account of color. Such action is said to be essential to the maintenance of the purity of the races, although it is to be noted in the ordinance under consideration that the employment of colored servants in white families is permitted, and nearby residences of colored .persons not coming within the blocks, as defined in the ordinance, are not prohibited.

The case presented does not deal with an attempt to prohibit the amalgamation of the races. The right which the ordinance annulled was the civil right of a white man to dispose of his property if he saw fit to do so to a person of color and of a colored person to make such disposition to a white person.

It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the Federal Constitution.

*82It is said that such acquisitions by colored persons depreciate property owned in the neighborhood by white persons. But property may be acquired by undesirable white neighbors or put to disagreeable though lawful uses with like results.

We think this attempt to prevent the alienation of the property in question to a person of color was not a legitimate exercise of the police power of the State, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law. That being the case the ordinance cannot stand. Booth v. Illinois, 184 U. S. 425, 429; Otis v. Parker, 187 U. S. 606, 609.

■Reaching this conclusion it follows that the judgment of- the Kentucky Court of Appeals must be reversed, and the cause remanded to that court for further proceedings not incpnsistent with this opinion.

Reversed.

The opinion of the Court was delivered by

Hall, J.

This case attacks the system of land use regulation by defendant Township of Mount Laurel on the ground that low and moderate income families are thereby unlawfully excluded from the municipality. The trial court so found, 119 N. J. Super. 164 (Law Div. 1972), and declared the township zoning ordinance totally invalid. Its judgment went on, in line with the requests for affirmative relief, to order the municipality to make studies of the housing needs of low and moderate income persons presently or formerly residing in the community in substandard housing, as well as those in such income classifications presently employed in the township and living elsewhere or reasonably expected to be employed therein in the future, and to present a plan of affirmative public action designed “to en*158able and encourage the satisfaction of the indicated needs.” Jurisdiction was retained for judicial consideration and approval of such a plan and for the entry of a final' order requiring its implementation.

The township appealed to the Appellate Division and those plaintiffs, not present or former residents, cross-appealed on the basis that the judgment should have directed that the prescribed plan take into account as well a fair share of the regional housing needs of low and moderate income families without limitation to those having past, present or prospective connection with the township. The appeals were certified on our own motion before argument in the Division. R. 2:12-1.1

The implications of the issue presented are indeed broad and far-reaching, extending much beyond these particular plaintiffs and the boundaries of this particular municipality.

There is not the slightest doubt that New Jersey has been, and continues to be, faced with a desperate need for housing, especially of decent living accommodations economically suitable for low and moderate income families.2 The situ*159ation was characterized as a “crisis” and fully explored and documented by Governor Cahill in two special messages to the Legislature — A Blueprint for Housing in New Jersey (1970) and New Horizons in Housing (1972).

Plaintiffs represent the minority group poor (black and Hispanic)3 seeking such quarters. But they are not the only category of persons barred from so many municipalities by reason of restrictive land use regulations. We have reference to young and elderly couples, single persons and large, growing families not in the poverty class, but who still cannot afford the only kinds of housing realistically permitted in most places — relatively high-priced, single-family detached dwellings on sizeable lots and, in some municipalities, expensive apartments. We will, therefore, consider the case from the wider viewpoint that the effect of Mount Laurel’s land use regulation has been to prevent various categories of persons from living in the township because of the limited extent of their income and resources. In this connection, we accept the representation of the municipality’s counsel at oral argument that the regulatory scheme was not adopted with any desire or intent to exclude prospective residents on the obviously illegal basis of race, origin or believed social incompatibility.

*160As already intimated, the issue here is not confined to Mount Laurel. The same question arises with respect to any number of other municipalities of sizeable land area outside the central cities and older built-up suburbs of our Earth and South Jersey metropolitan areas (and surrounding some of the smaller cities outside those areas as well) which, like Mount Laurel, have substantially shed rural characteristics and have undergone great population increase since World War II, or are now in the process of doing so, but still are not completely developed and remain in the path of inevitable future residential, commercial and industrial demand and growth. Most such municipalities, with but relatively insignificant variation in details, present generally comparable physical situations, courses of municipal policies, practices, enactments and results and human, governmental and legal problems arising therefrom. It is in the context of communities now of this type or which become so in the future, rather than with central cities or older built-up suburbs or areas still rural and likely to continue to be for some time yet, that we deal with the question raised.

Extensive oral and documentary evidence was introduced at the trial, largely informational, dealing with the development of Mount Laurel, including the nature and effect of municipal regulation, the details of the region of which it is a part and the recent history thereof, and some of the basics of housing, special reference being directed to that for low and moderate income families. The record has been supplemented by figures, maps, studies and literature furnished or referred to by counsel and the amici, so that the court has a clear picture of land use regulation and its effects in the developing municipalities of the state.

This evidence was not contradicted by the township, except in a few unimportant details. Its candid position is that, conceding its land use regulation was intended to result and has resulted in economic discrimination and ex-*161elusion of substantial segments of the area population, its policies and practices are in the best present and future fiscal interest of the municipality and its inhabitants and are legally permissible and justified. It further asserts that the trial court was without power to direct the affirmative relief it did.

I

The Facts

Mount Laurel is a flat, sprawling township, 22 square miles, or about 14,000 acres, in area, on the west central edge of Burlngton County. It is roughly triangular in shape, with its base, approximately eight miles long, extending in a northeasterly-southwesterly direction roughly parallel with and a few miles east of the Delaware River. Part of its southerly side abuts Cherry Hill in Camden County. That section of the township is about seven miles from the boundary line of the city of Camden and not more than 10 miles from the Benjamin Eranklin Bridge crossing the river to Philadelphia.

In 1950, the township had a population of 2817, only about 600 more people than it had in 1940. It was then, as it had been for decades, primarily a rural agricultural area with no sizeable settlements or commercial or industrial enterprises. The populace generally lived in individual houses scattered along country roads. There were several pockets of poverty, with deteriorating or. dilapidated housing (apparently 300 or so units of which remain today in equally poor condition). After 1950, as in so many other municipalities similarly situated, residential development and some commerce and industry began to come in. By 1960 the population had almost doubled to 5249 and by 1970 had more than doubled again to 11,221. These new residents were, of course, “outsiders” from the nearby central ■cities and older suburbs or from more distant places drawn *162here by reason of employment in the region. The township is now definitely a part of the outer ring of the South Jersey metropolitan area, which area we define as those portions of Camden, Burlington and Gloucester Counties within a semicircle having a radius of 20 miles or so from the heart of Camden city. And 65% of the township is still vacant land or in agricultural use.

The growth of the township has been spurred by the construction or improvement of main highways through or near it. The New Jersey Turnpike, and now route 1-295, a freeway paralleling the turnpike, traverse the municipality near its base, with the main Camden-Philadelphia turnpike interchange at the corner nearest Camden. State route 73 runs at right angles to the turnpike at the interchange and route 38 slices through the northeasterly section. Routes 70 and U. S. 130 are not far away. This highway network gives the township a most strategic location from the standpoint of transport of goods and people by truck and private ear. There is no other means of transportation.

The location and nature of development has been, as usual, controlled by the local zoning enactments. The general ordinance presently in force, which was declared invalid by the trial court, was adopted in 1964. We understand that earlier enactments provided, however, basically the same scheme but were less restrictive as to residential development. The growth pattern dictated by the ordinance is typical.

Under the present ordinance, 29.2% of all the land in the township, or 4,121 acres, is zoned for industry. This amounts to 2,800 more acres than were so zoned by the 1954 ordinance. The industrial districts comprise most of the land on both sides of the turnpike and routes 1-295, 73 and 38. Only industry meeting specified performance standards is permitted. The effect is to limit the use substantially to light manufacturing, research, distribution of goods, offices and the like. Some non-industrial uses, such as agriculture, *163farm dwellings, motels, a harness racetrack, and certain retail sales and service establishments, are permitted in this zone. At the time of trial no more than 100 acres, mostly in the southwesterly corner along route 73 adjacent to the turnpike and 1-295 interchanges, were actually occupied by industrial uses. They had been constructed in recent years, mostly in several industrial parks, and involved tax ratables of about 16 million dollars. The rest of the land so zoned has remained undeveloped. If it were fully utilized, the testimony was that about 43,500 industrial jobs would be created, but it appeared clear that, as happens in the case of so many municipalities, much more land has been so zoned than the reasonable potential for industrial movement or expansion warrants. At the same time, however, the land cannot be used for residential development under the general ordinance.

The amount of land zoned for retail business use under the general ordinance is relatively small — 169 acres, or 1.2% of the total. Some of it is near the turnpike interchange; most of the rest is allocated to a handful of neighborhood commercial districts. While the greater part of the land so zoned appears to be in use, there is no major shopping center or concentrated retail commercial area — “downtown” •— in the township.

The balance of the land area, almost 10,000 acres, has been developed until recently in the conventional form of major subdivisions. The general ordinance provides for four residential zones, designated R — 1, R-1D, R-2’ and R-3. All permit only single-family, detached dwellings, one house per lot — the usual form of grid development. Attached townhouses, apartments (except on farms for agricultural workers) and mobile homes are not allowed anywhere in the township under the general ordinance. This dwelling development, resulting in the previously mentioned quadrupling of the population, has been largely confined to the R-l and R-2 districts in two sections — the northeasterly and southwesterly corners adjacent to the turnpike and other major highways. The result has been quite intensive development of these sections, *164but at a low density. The dwellings are substantial; the average value in 1971 was $32,500 and is undoubtedly much higher today.

The general ordinance requirements, while not as restrictive as those in many similar municipalities, nonetheless realistically allow only homes within the financial reach of persons of at least middle income. The R-l zone requires a minimum lot area of 9,375 square feet, minimum lot width of 75 feet at the building line, and a minimum dwelling floor area of 1,100 square feet if a one-story building and 1,300 square feet if one and one-half stories or higher. Originally this zone comprised about 2,500 acres. Most of the subdivisions have been constructed within it so that only a few hundred acres remain (the testimony was at variance as to the exact amount). The R-2 zone, comprising a single district of 141 acres in the northeasterly corner, has been completely developed. While it only required a minimum floor area of 900 square feet for a one-story dwelling, the minimum lot size was 11,000 square feet; otherwise the requisites were the same as in the R-l zone.

The general ordinance places the remainder of the township, outside of the industrial and commercial zones and the R-1D district (to be mentioned shortly), in the R-3 zone. This zone comprises over 7,000 acres — slightly more than half of the total municipal area — practically all of which is located in the central part of the township extending southeasterly to the apex of the triangle. The testimony was that about 4,600 acres of it then remained available for housing development. Ordinance requirements are substantially higher, however, in that the minimum lot size is increased to about one-half acre (20,000 square feet). (We understand that sewer and water utilities have not generally been installed, but, of course, they can be.) Lot width at the building line must be 100 feet. Minimum dwelling floor area is as in the R-l zone. Presently this section is primarily in agricultural use; it contains as well most of the municipality’s substandard housing.

*165The R-1D district was created by ordinance amendment in 1968. The area is composed of a piece of what was formerly R-3 land in the western part of that zone. The district is a so-called “cluster” zone. See generally 2 Williams, American Planning Law. Land Use and the Police Power, §§ 47.01-47.05 (1974). That writer defines the concept as follows:

* * * Under the usual cluster-zoning provisions, both the size and the width of individual residential lots in a large (or medium-sized) development may be reduced, provided (usually) that the overall density of the entire tract remains constant — provided, that is, that an area equivalent to the total of the areas thus “saved” from each individual lot is pooled and retained as common open space. The most obvious advantages include a better use of many sites, and relief from the monotony of continuous development. § 47.01, pp. 212-213.

Here this concept is implemented by reduction of the minimum lot area from 20,000 square feet required in the R-3 zone to 10,000 square feet (12,000 square feet for corner lots) but with the proviso that one-family houses — the single permitted dwelling use — “shall not be erected in excess of an allowable development density of 2.25 dwelling units per gross acre.” The minimum lot width at the building line must be 80 feet and the minimum dwelling floor area is the same as in the R-3 zone. The amendment further provides that the developer must set aside and dedicate to the municipality a minimum of 15% and a maximum of 25% of the total acreage for such public uses as may be required by the Planning Board, including “but not limited to school sites, parks, playgrounds, recreation areas, public buildings, public utilities.” Some dwelling development has taken place in this district, the exact extent of which is not disclosed by the record. It is apparent that the dwellings are comparable in character and value to those in the other residential zones. The testimony was that 486 acres remained available in the district.4

*166A variation from conventional development has recently-occurred in some parts of Mount Laurel, as in a number of other similar municipalities, by use of the land use regulation device known as “planned unit development” (PUD). This scheme differs from the traditional in that the type, density and placement of land uses and buildings, instead of being detailed and confined to specified districts by local legislation in advance, is determined by contract, or “deal,” as to each development between the developer and the municipal administrative authority, under broad guidelines laid down by state enabling legislation and an implementing local ordinance. The stress is on regulation of density and permitted mixture of uses within the same area, including various kinds of living accommodations with or without commercial and industrial enterprises. The idea may be basically thought of as the creation of “new towns” in virgin territory, full-blown or in miniature, although most frequently the concept has been limited in practice, as in Mount Laurel, to residential developments of various sizes having some variety of housing and perhaps some retail establishments to serve the inhabitants. See generally, 2 Williams, supra, §§ 48.01 to 48.12; cf. Cheney v. Village 2 at New Hope, Inc., 429 Pa. 626, 241 A. 2d 81, 82-83 (1968).

New Jersey passed such enabling legislation in 1967 (L. 1967, c. 61, amended c. 286, N. J. S. A. 40:55-54, et seq.), which closely follows a model act found in 114 U. Pa. L. Rev. 140 (1965), and Mount Laurel adopted the implementing enactment as a supplement to its general zoning ordinance in December of that year. While the ordinance was repealed early in 1971, the township governing body in the interim had approved four PUD projects, which were specifically saved from extinction by the repealer.5

*167These projects, three in the southwesterly sector and one in the northeasterly sector, are very substantial and involve at least 10,000 sale and rental housing units of various types to be erected over a period of years. Their bounds were created by agreement rather than legislative specification on the zoning map, invading industrial, R-l, R-1D, R-3 and even flood plain zones. If completed as planned, they will in themselves ultimately quadruple the 1970 township population, but still leave a good part of the township undeveloped. (The record does not indicate how far development in each of the projects has progressed.) While multi-family housing in the form of rental garden, medium rise and high rise apartments and attached townhouses is for tihe first time provided for, as well as single-family detached dwellings for sale, it is not designed to accommodate and is beyond the financial reach of low and moderate income families, especially those with young children. The aim is quite the contrary; as with the single-family homes in the older conventional subdivisions, only persons of medium and upper income are sought as residents.

A few details will furnish sufficient documentation. Each of the resolutions of tentative approval of the projects con*168tains a similar fact finding to the effect that the development will attract a highly educated and trained population base to support the nearby industrial parks in the township as well as the business and commercial facilities. The approvals also sharply limit the number of apartments having more than one bedroom. Further, they require that the developer must provide in its leases that no school-age children shall be permitted to occupy any one-bedroom apartment and that no more than two such children shall reside in any two-bedroom unit. The developer is also required, prior to the issuance of the first building permit, to record a covenant, running with all land on which multi-family housing is to be constructed, providing that in the event more than .3 school children per multi-family unit shall attend the township school sjstem in any one year, the developer will pay the cost of tuition and other school expenses of all such excess numbers of children. In addition, low density, required amenities, such as central air conditioning, and specified developer contributions help to push rents and sales prices to high levels. These contributions include fire apparatus, ambulances, fire houses, and very large sums of money for educational facilities, a cultural center and the township library.6

Still another restrictive land use regulation was adopted by the township through a supplement to the general zoning ordinance enacted in September 1972 creating a new zone, R-4, Planned Adult Retirement Community (PARC). The supplementary enactment designated a sizeable area as the zone — perhaps 200 acres — carved out of the R-1D and R-3 districts in the southwesterly sector. The enactment recited a critical shortage of adequate housing in the township suitable "for the needs and desires of senior citizens and certain other adults over the age of 52.” The permission was essentially for single ownership development of the zone for mnlti-family *169housing (townhouses and apartments), thereafter to be either rented or sold as cooperatives or condominiums. The extensive development requirements detailed in the ordinance make it apparent that the scheme was not designed for, and would be beyond the means of, low and moderate income retirees. The highly restricted nature of the zone is found in the requirement that all permanent residents must be at least 52 years of age (except a spouse, immediate family member other than a child, live-in domestic, companion or nurse). Children are limited to a maximum of one, over age 18, residing with a parent and there may be no more than three permanent residents in any one dwelling unit.7

All this affirmative action for the benefit of certain segments of the population is in sharp contrast to the lack of action, and indeed hostility, with respect to affording any opportunity for decent housing for the township’s own poor living in substandard accommodations, found largely in the section known as Springville (R-3 zone). The 196,9 Master Plan Report recognized it and recommended positive action. The continuous official reaction has been rather a negative policy of waiting for dilapidated premises to be vacated and .then forbidding further occupancy. An earlier non-governmental effort to improve conditions had been effectively thwarted. In 1968 a private non-profit association sought to build subsidized, multi-family housing in the Springville section with funds to be granted by a higher level governmental agency. Advance municipal approval of the project was required. The Township Committee responded with a purportedly approving resolution, which found a need for “moderate” income housing in the area, but went on to specify that such housing must be constructed subject to all zoning, planning, building and other applicable ordinances and codes. This meant single-family detached dwellings on 20,000 square foot lots. (Fear was also *170expressed that such housing would attract low income families from outside the township.) Needless to say, such requirements killed realistic housing for this group of low and moderate income families.8

The record thoroughly substantiates the findings of the trial court that over the years Mount Laurel “has acted affirmatively to control development and to attract a selective type of growth” (119 N. J. Super. at 168) and that “through its zoning ordinances has exhibited economic discrimination in that the poor have been deprived of adequate housing and the opportunity to secure the construction of subsidized housing, and has used federal, state, county and local finances and resources9 solely for the betterment of middle and upper-income persons.” (119 N. J. Super. at 178).

There cannot be the slightest doubt that the reason for this course of conduct has been to keep down local taxes on property (Mount Laurel is not a high tax municipality) and that the policy was carried out without regard for non-fiscal considerations with respect to people, either within or without its boundaries. This conclusion is demonstrated not only by what was done and what happened, as we have related, but also by innumerable direct statements of municipal officials at public meetings over the years which are found *171in the exhibits. The trial court referred to a number of them. 119 N. J. Super. at 169-170. No official testified to the contrary.

This policy of land use regulation for a fiscal end derives from New Jersey’s tax structure, which has imposed on local real estate most of the cost of municipal and county government and of the primary and secondary education of the municipality’s children. The latter expense is much the largest, so, basically, the fewer the school children, the lower the tax rate. Sizeable industrial and commercial ratables are eagerly sought and homes and the lots on which they are situate are required to be large enough, through minimum lot sizes and minimum floor areas, to have substantial value in order to produce greater tax revenues to meet school costs. Large families who cannot afford to buy large houses and must live in cheaper rental accommodations are definitely not wanted, so we find drastic bedroom restrictions for, or complete prohibition of, multi-family or other feasible housing for those of lesser income.

This pattern of land use regulation has been adopted for the same purpose in developing municipality after developing municipality. Almost every one acts solely in its own selfish and parochial interest and in effect builds a wall around itself to keep out those people or entities not adding favorably to the tax base, despite the location of the municipality or the demand for varied kinds of housing. There has been no effective intermunieipal or area planning or land use regulation. All of this is amply demonstrated by the evidence in this ease as to Camden, Burlington and Gloucester counties. As to the similar situation generally in the state, see New Jersey Department of Community Affairs, Division of State and Regional Planning, Land Use Regulation, The Residential Land Supply (April 1972) (a study assembling and examining the nature and extent of municipal zoning practices in 16 counties as affecting residential land available for low and moderate income housing) *172and Williams and Norman, Exclusionary Land Use Controls: The Case of North-Eastern New Jersey, 22 Syracuse L. Rev. 475, 486-487 (1971). One incongruous result is the picture of developing municipalities rendering it impossible for lower paid employees of industries they have eagerly sought and welcomed with open arms (and, in Mount Laurel’s case, even some of its own lower paid municipal employees) to live in the community where they work.

The other end of the spectrum should also be mentioned because it shows the source of some of the demand for cheaper housing than the developing municipalities have permitted. Core cities were originally the location of most commerce and industry. Many of those facilities furnished employment for the unskilled and semi-skilled. These employees lived relatively near their work, so sections of cities always have housed the majority of people of low and moderate income, generally in old and deteriorating housing. Despite the municipally confined tax structure, commercial and industrial ratables generally used to supply enough revenue to provide and maintain municipal services equal or superior to those furnished in most suburban and rural areas.

The situation has become exactly the opposite since the end of World War II. Much industry and retail business, and even the professions, have left the cities. Camden is a typical example. The testimonial and documentary evidence in this case as to what has happened to that city is depressing indeed. Eor various reasons, it lost thousands of jobs between 1950 and 1970, including more than half of its manufacturing jobs (a reduction' from 43,267 to 20,671, while all jobs in the entire area labor market increased from 94,507 to 197,037). A large segment of retail business faded away with the erection of large suburban shopping centers. The economically better situated city residents helped fill up the miles.of sprawling new housing developments, not fully served by public transit. In a society which *173came' to depend more and more on expensive individual motor vehicle transportation for all purposes, low income employees very frequently could not afford to reach outlying places of suitable employment and they certainly could not afford the permissible housing near such locations. These people have great difficulty in obtaining work and have been forced to remain in housing which is overcrowded, and has become more and more substandard and less and less tax productive. There has been a consequent critical erosion of the city tax base and inability to provide the amount and quality of those governmental services — education, health, police, fire, housing and the like — so necessary to the very existence of safe and decent city life. This category of city dwellers desperately needs much better housing and living conditions than is available to them now, both in a rehabilitated city and in outlying municipalities. They make up, along with the other classes of persons earlier mentioned who also cannot afford the only generally permitted housing in the developing municipalities, the acknowledged great demand for low and moderate income housing.

II

The Legal Issue

The legal question before us, as earlier indicated, is whether a developing municipality like Mount Laurel may validly, by a system of land use regulation, make it physically and economically impossible to provide low and moderate income housing in the municipality for the various categories of persons who need and want it and thereby, as Mount Laurel has, exclude such people from living within its confines because of the limited extent of their income and resources. Necessarily implicated are the broader questions of the right of such municipalities to limit the kinds of available housing and of any obligation to make possible a variety and choice of types of living accommodations.

*174 We conclude that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality’s fair share of the present and prospective regional need therefor. These obligations must be met unless the particular municipality can sustain the heavy burden of demonstrating peculiar circumstances which dictate that it should not be required so to do.10

We reach this conclusion under state law and so do not find it necessary to consider federal constitutional grounds urged by plaintiffs. We begin with some fundamental principles as applied to the scene before us.

Land use regulation is encompassed within the state’s police power. Our constitutions have expressly so provided since an amendment in 1927. That amendment, now Art. IY, sec. YI, par. 2 of the 1947 Constitution, authorized legislative delegation of the power to municipalities (other than counties), but reserved the legislative right to repeal or alter the delegation (which we take it means repeal or alteration in whole or in part). The legislative delegation of the zoning power followed in 1928, by adoption of the standard zoning enabling act, now found, with subsequent amendments, in N. J. S. A. 40:55-30 to 51.

It is elementary theory that all police power enactments, no matter at what level of government, must conform to the basic state constitutional requirements of substantive due process and equal protection of the laws. These *175are inherent in Art. I, par. 1 of onr Constitution,11 the requirements of which may be more demanding than those of the federal Constitution. Robinson v. Cahill, 62 N. J. 473, 482, 490-492 (1973); Washington National Insurance Co. v. Board of Review, 1 N. J. 545, 553-554 (1949). It is required that, affirmatively, a zoning regulation, like any police power enactment, must promote public health, safety, morals or the general welfare. (The last term seems broad enough to encompass the others). Conversely, a zoning enactment which is contrary to the general welfare is invalid. See generally, e. g., Roselle v. Wright, 21 N. J. 400, 409—410 (1956); Katobimar Realty Co. v. Webster, 20 N. J. 114, 122-123 (1955); Schmidt v. Board of Adjustment of Newwark, 9 N. J. 405, 413-419 (1952); Collins v. Board of Adjustment of Margate City, 3 N. J. 200, 206 (1949). Indeed these considerations are specifically set forth in the zoning enabling act as among the various purposes of zoning for which regulations must be designed. N. J. S. A. 40:55-32. Their inclusion therein really adds little; the same requirement would exist even if they were omitted. If a zoning regulation violates the enabling act in this respect, it is also theoretically invalid under the state constitution. We say “theoretically” because, as a matter of policy, we do not treat the validity of most land use ordinance provisions as involving matters of constitutional dimension; that classification is confined to major questions of fundamental import. Cf. Tidewater Oil Co. v. Mayor and Council of the Borough of Carteret, 44 N. J. 338, 343 (1965). We consider the basic importance of housing and local regulations restricting its availability to substantial segments of the population to fall within the latter category.

*176The demarcation between the valid and the invalid in the field of land nse regulation is difficult to determine, not always .clear and subject to change. This was recognized almost fifty years ago in the basic case of Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926) :

The ordinance now under review and all similar laws and regulations must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. (272 U. S. at 387, 47 S. Ct. at 118, 71 L. Ed. at 310).

This court has also said as much and has plainly warned, even in cases decided some years ago sanctioning a broad measure of restrictive municipal decisions, of the inevitability of change in judicial approach and view as mandated by change in the world around us. Lionshead Lake, Inc. v. Township of Wayne, 10 N. J. 165, 172-173 (1952), appeal dismissed 344 U. S. 919, 73 S. Ct. 386, 97 L. Ed. 708 (1953) (approving requirement of minimum floor area for dwellings, the same in all residential districts); Fischer v. Township of Bedminster, 11 N. J. 194, 205 (1952) (sanctioning minimum lot area of five acres in a then rural municipality); Pierro v. Baxendale, 20 N. J. 17, 29 (1955) (holding valid an ordinance permitting boarding and rooming houses, but not hotels and motels, in residential districts); Vickers v. Township Committee of Gloucester Township, 37 N. J. 232, 250 (1962), cert. den. 371 U. S. 233, 83 S. Ct. 326, 9 L. Ed. 2d 495 (1963) (sustaining ordinance provisions prohibiting mobile home parks throughout the township). The warning is perhaps best put in Pierro:

We are aware of the extensive academic discussion following the decisions in the Lionshead and Bedminster cases, supra, and the suggestion that the very broad principles which they embody may intensify dangers of economic segregation which even the more traditional modes of zoning entail * * *. In the light of existing population and land conditions within our State these [municipal zoning] *177powers may fairly be exercised without in anywise endangering the needs or reasonable expectations of any segments of our people. If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed. (20 N. J. at 29).

The warning implicates the matter of whose general welfare must be served or not violated in the field of land use regulation. Erequently the decisions in this state, including those just cited, have spoken only in terms of the interest of the enacting municipality, so that it has been thought, at least in some quarters, that such was the only welfare requiring consideration. It is, of course, true that many eases have dealt only with regulations having little, if any, outside impact where the local decision is ordinarily entitled to prevail. However, it is fundamental and not to be forgotten that the zoning power is a police power of the state and the local authority is acting only as a delegate of that power and is restricted in the same manner as is the state. So, when regulation does have a substantial external impact, the welfare of the state’s citizens beyond the borders of the particular municipality cannot be disregarded and must be recognized and served.

This essential was distinctly pointed out in Euclid, where Mr. Justice Sutherland specifically referred to * * the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way.” (272 U. S. at 390, 47 S. Ct. at 119, 71 L. Ed. at 311). Chief Justice Vanderbilt said essentially the same thing, in a different factual context, in the early leading case of Duffcon Concrete Products, Inc. v. Borough of Cresskill, 1 N. J. 509 (1949), when he spoke of the necessity of regional considerations in zoning and added this:

* * * The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or *178of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines. Changes in methods of transportation as well as in living conditions have served only to accentuate the unreality in dealing with zoning problems on the basis of the territorial limits of a municipality. (1 N. J. at 513).

See, to the same general effect, Borough of Cresskill v. Borough of Dumont, 15 N. J. 238, 247-249 (1954).

In recent years this court has once again stressed this non-local approach to the meaning of “general welfare” in cases involving zoning as to facilities of broad public benefit as distinct from purely parochial interest. See Roman Catholic Diocese of Newark v. Ho-Ho-Kus Borough, 42 N. J. 556, 566 (1964), id., 47 N. J. 211 (1966). In this case we pointed out local action with respect to private educational projects largely benefitting those residing outside the borough must be exercised “with due concern for values which transcend municipal lines.” (47 N. J. at 218). Likewise in Kunzler v. Hoffman, 48 N. J. 277 (1966), a case unsuccessfully attacking a use variance granted a private hospital to serve the emotionally disturbed in a wide area of the state, we rejected the contention that local zoning authorities are limited to a consideration of only those benefits to the general welfare which would be received by residents of the municipality, pointing out that “general welfare” in the context there involved “comprehends the benefits not merely within municipal boundaries but also those to the regions of the State relevant to the public interest to be served.” 48 N. J. at 288.

This brings us to the relation of housing to the concept of general welfare just discussed and the result in terms^of land use regulation which that relationship mandates. Thére cannot be the slightest doubt that shelter, along with food, are the most basic human needs. See Robinson v. Cahill, supra (62 N. J. at 483). “The question of whether a citizenry has adequate and sufficient housing is certainly one of the prime considerations in assessing the general health and welfare of that body.” New Jersey Mortgage Finance Agency v. *179McCrane, 56 N. J. 414, 420 (1970). Cf. DeSimone v. Greater Englewood Housing Corp. No. 1, 56 N. J. 428, 442 (1970). The same thought is implicit in the legislative findings of an extreme, long-time need in this state for decent low and moderate income housing, set forth in the numerous statutes providing for various agencies and methods at both state and local levels designed to aid in alleviation of the need. See, e. g., Mortgage Einance Agency Law, N. J. S. A. 17:1B-5 (L. 1970, c. 38); Department of Community Affairs Demonstration Grant Law, N. J. S. A. 52:27D-61 (L. 1967, c. 82); Local Housing Authorities Law, N. J. S. A. 55:14A-2 (L. 1938, c. 19); Housing Co-operation Law, N. J. S. A. 55:14B-2 (D. 1938, c. 20); Redevelopment Companies Law, N. J. S. A. 55:14D-2 (L. 1944, c. 169); State Housing Law, N. J. S. A. 55:14H—2 (L. 1949, c. 303); Senior Citizens Nonprofit Rental Housing Tax Law, N. J. S. A. 55:141-2 (L. 1965, c. 92); Housing Finance Agency Law, N. J. S. A. 55:14J-2 (L. 1967, c. 81); Limited-Dividend Nonprofit Housing Corporations or Associations Law, N. J. S. A. 55:16-2 (as amended D. 1967, c. 112).

It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation. Further the universal and constant need for such housing is so important and of such broad public interest that the general welfare which developing municipalities like Mount Laurel must consider extends beyond their boundaries and cannot be parochially confined to the claimed good of the particular municipality. It has to follow that, broadly speaking, the presumptive obligation arises for each such mpinieipality affirmatively to plan and provide, by its land use regulations, the reasonable opportunity for an appropriate variety and choice of housing, including, of course, low and moderate cost housing, to meet the needs, desires and resources of all categories of people who may desire to live within its boundaries. Negatively, it *180may not adopt regulations or policies which thwart or preclude that opportunity.

It is also entirely clear, as we pointed out earlier, that most developing municipalities, including Mount Laurel, have not met their affirmative or negative obligations, primarily for local fiscal reasons. Governor Cahill summed it up in his 1970 special legislative message, A Blueprint for Housing in New J ersey, supra, at 10-11:

We have reached a point in the State where the zoning criteria in many municipalities is two-fold; dwelling units of all kinds must be curtailed; industrial development must be encouraged. This is a far cry from the original concept of municipal zoning and planning * * *. The fundamental objective of (the) constitutional amendment and the implementing Municipal Zoning Enabling Act was local control of zoning and planning for the purpose of effecting the public good * • *. The original concept of local planning and zoning never contemplated prohibition in lieu of regulation nor the welfare of the few in place of the general welfare.

The exclusionary details are fully set forth in Land Use Regulation, The Residential Land Supply, previously referred to.

In sum, we are satisfied beyond any doubt that, by reason of the basic importance of appropriate housing and the longstanding pressing need for it, especially in the low and moderate cost category, and of the exclusionary zoning practices of so many municipalities, conditions have changed, and consistent with the warning in Pierro, supra, judicial attitudes must be altered from that espoused in that and other cases cited earlier, to require, as we have just said, a broader view of the general welfare and the presumptive obligation on the part of developing municipalities at least to afford the opportunity by land use regulations for appropriate housing for all.

We have spoken of this obligation of such municipali-. ties as “presumptive.” The term has two aspects, procedural and substantive. Procedurally, we think the basic importance of appropriate housing for all dictates that, when it is shown that a developing municipality in its land use regulations has *181not made realistically possible a variety and choice of housing, including adequate provision to afford the opportunity for low and moderate income housing or has expressly prescribed requirements or restrictions which preclude or substantially hinder it, a facial showing of violation of substantive due process or equal protection under the state constitution has been made out and the burden, and it is a heavy one, shifts to the municipality to establish a valid basis for its action or non-action. Robinson v. Cahill, supra, 62 N. J. at 491-492, and cases cited therein. The substantive aspect of “presumptive” relates to the specifics, on the one hand, of what municipal land use regulation provisions, or the absence thereof, will evidence invalidity and shift the burden of proof and, on the other hand, of what bases and considerations will carry the municipality’s burden and sustain what it has done or failed to do. Both kinds of specifics may well vary between municipalities according to peculiar circumstances.

We turn to application of these principles in appraisal of Mount Laurel’s zoning ordinance, useful as well, we think, as guidelines for future application in other municipalities.

The township’s general zoning ordinance (including the cluster zone provision) permits, as we have said, only one type of housing — single-family detached dwellings. This means that all other types — multi-family including garden apartments and other kinds housing more than one family, town (row) houses, mobile home parks — are prohibited.12 *182Concededly, low and moderate income housing has been intentionally excluded. While a large percentage of the population living outside of cities prefers a one-family house on its own sizeable lot, a substantial proportion do not for various reasons. Moreover, single-family dwellings are the most expensive type of quarter’s and a great number of families cannot afford them.13 Certainly they are not pecuniarily feasible for low and moderate income families, most young people and many elderly and retired persons, except for some of moderate income by the use of low cost construction on small lots.

As previously indicated, Mount Laurel has allowed some multi-family (housing by agreement in planned unit developments, but only for the relatively affluent and of no benefit to low and moderate income families. And even here, the contractual agreements between municipality and developer sharply limit the number of apartments having more than one bedroom.14 While the township’s PUD ordinance has been repealed, we mention the subject of bedroom restriction because, assuming the overall validity of the PUD technique (see footnote (5), supra), the measure could be *183reenacted and the subject is of importance generally. The design of such limitations is obviously to restrict the number of families in the municipality having school age children and thereby keep down local education costs.15 Such restrictions are so clearly contrary to the general welfare as not to require further discussion. Cf. Molino v. Mayor and Council of Borough of Glassboro, 116 N. J. Super. 195 (Law Div. 1971).

Mount Laurel’s zoning ordinance is also so restrictive in its minimum lot area, lot frontage and building size requirements, earlier detailed, as to preclude single-family housing for even moderate income families. Eequired lot area of at least 9,375 square feet in one remaining regular residential zone and 20,000 square feet (almost half an acre) in the other, with required frontage of 75 and 100 feet, respectively, cannot he called small lots and amounts to low density zoning, very definitely increasing the cost of purchasing and improving land and so affecting the cost of housing.16 As to building size, the township’s general requirements of a minimum dwelling floor area of 1,100 square feet for all one-story houses and 1,300 square feet for all of one and one-half stories or higher is without regard to required minimum lot size or frontage or the number of occupants (see Sente v. Mayor *184and Municipal Council of City of Clifton, 66 N. J. 204, 208-209 (1974)). In most aspects these requirements are greater even than those approved in Lionshead Lake, Inc. v. Township of Wayne, supra, 10 N. J. 165, almost 24 years ago and before population decentralization, outer suburban development and exclusionary zoning had attained today’s condition. See also Williams and Wacks, Segregation of Residential Areas Along Economic Lines: Lionshead Lake Revisited, 1969 Wis. L. Rev. 827.17 Again it is evident these requirements increase the size and so the cost of housing. The conclusion is irresistible that Mount Laurel permits only such middle and upper income housing as it believes will have sufficient taxable value to come close to paying its own governmental ivay.

Akin to large lot, single-family zoning restricting the population is the zoning of very large amounts of land for industrial and related uses. Mount Laurel has set aside almost 30% of its area, over 4,100 acres, for that purpose; the only residential use allowed is for farm dwellings. In almost a decade only about 100 acres have been developed industrially. Despite the township’s strategic location for motor transportation purposes, as intimated earlier, it seems plain that the likelihood of anywhere near the whole of the zoned area being used for the intended purpose in the foreseeable future is remote indeed and that an unreasonable amount of land has thereby been removed from possible residential development, again seemingly for local fiscal reasons.18

*185Without further elaboration at this point, our opinion is that Mount Laurel’s zoning ordinance is presumptively contrary to the general welfare and outside the intended scope of the zoning power in the particulars mentioned. A facial showing of invalidity is thus established, shifting to the municipality the burden of establishing valid superseding reasons for its action and non-action.19 We now examine the reasons it advances.

The township’s principal reason in support of its zoning plan and ordinance housing provisions, advanced especially strongly at oral argument, is the fiscal one previously adverted to, i. e., that by reason of New Jersey’s tax structure which substantially finances municipal governmental and educational costs from taxes on local real property, every municipality may, by the exercise of the zoning power, allow only such uses and to such extent as will be beneficial to the local tax rate. In other words, the position is that any municipality may zone extensively to seek and encourage the “good” tax ratables of industry and commerce, and limit the permissible types of housing to those having the fewest school children or to those providing sufficient value to attain or approach paying their own way taxwise.

We have previously held that a developing municipality may properly zone for and seek industrial ratables to create a better economic balance for the community vis-a-vis educational and governmental costs engendered by residential development, provided that such was “* * * done reasonably as part of and in furtherance of a legitimate comprehensive plan for the zoning of the entire municipality.” Gruber v. Mayor and Township Committee of Raritan Township, 39 N. J. 1, 9—11 (1962). We ad*186here to that view'today. But we were not there concerned with, and did not pass upon, the validity of municipal exclusion by zoning of types of housing and kinds of people for the same local financial end. We have no hesitancy in now saying, and do so emphatically, that, considering the basic importance of the opportunity for appropriate housing for all classes of our citizenry, no municipality may exclude or limit categories of housing for that reason or purpose. While we fully recognize the increasingly heavy burden of local taxes for municipal governmental and school costs on homeowners, relief from the consequences of this tax system will have to be furnished by other branches of government. It cannot legitimately be accomplished by restricting types of housing through the zoning process in developing municipalities.

The? propriety of zoning ordinance limitations on housing for ecological or environmental reasons seems also to be suggested by Mount Laurel in support of the one-half acre minimum lot size in that very considerable portion of the township still available for residential development. It is said that the area is without sewer or water utilities and that the soil is such that this plot size is required for safe individual lot sewage disposal and water supply. The short answer is that, this being flat land and readily amenable to such utility installations, the township could require them as improvements by developers or install them under the special assessment or other appropriate statutory procedure. The present environmental situation of the area is, therefore, no sufficient excuse in itself for limiting housing therein to single-family dwellings on large lots. Cf. National Land and Investment Co. v. Kohn, 419 Pa. 504, 215 A. 2d 597 (1965). This is not to say that land use regulations should not take due account of ecological or environmental factors or problems. Quite the contrary. Their importance, at last being recognized, should always be considered. Generally only a relatively small portion of a de*187veloping municipality will be involved, for, to have a valid effect, the danger and impact must be substantial and very real (the construction of every building or the improvement of every plot has some environmental impact) — not simply a makeweight to .support exclusionary housing measures or preclude growth — and the regulation adopted must be only that reasonably necessary for public protection of a vital interest. Otherwise difficult additional problems relating to a “taking” of a property owner’s land may arise. See AMG Associates v. Township of Springfield, 65 N. J. 101, 112, n. (4) (1974).

By way of summary, what we have said comes down to this. As a developing municipality, Mount Laurel must, by its land use regulations, make realistically possible the opportunity for an appropriate variety and choice of housing for all categories of people who may desire to live there, of course including those of low and moderate income. It must permit multi-family housing, without bedroom or similar restrictions, as well as small dwellings on very small lots, low cost housing of other types and, in general, high density zoning, without artificial and unjustifiable minimum requirements as to lot size, building size and the like, to meet the full panoply of these needs. Certainly when a municipality zones for industry and commerce for local tax benefit purposes, it without question must zone to permit adequate housing within the means of the employees involved in such uses. (If planned unit developments are authorized, one would assume that each must include a reasonable amount of low and moderate income housing in its residential “mix,” unless opportunity for such housing has already been realistically provided for elsewhere in the municipality.) The amount of land removed from residential use by allocation to industrial and commercial purposes must be reasonably related to the present and future potential for such purposes. In other words, *188such municipalities must zone primarily for the living welfare of people and not for the benefit of the local tax rate.20

We have earlier stated that a developing municipality’s obligation to afford the opportunity for decent and adequate low and moderate income housing extends at least to “* * * the municipality’s fair share of the present and prospective regional need therefor.”21 Some comment on *189that conclusion is in order at this point. Frequently it might be sounder to have more of such housing, like some specialized land uses, in one municipality in a region than in another, because of greater availability of suitable land, location of employment, accessibility of public transportation or some other significant reason. But, under present New Jersey legislation, zoning must be on an individual municipal basis, rather than regionally.22 So long as that situation persists under the present tax structure, or in the absence of some kind of binding agreement among all the municipalities of a region, we feel that every municipality therein must bear its fair share of the regional burden. (In this respect our holding is broader than that of the trial court, which was limited to Mount Laurel-related low and moderate income housing needs.)

The composition of the applicable “region” will necessarily vary from situation to situation and probably no hard and fast rule will serve to furnish the answer in every case. Con*190finement to or within a certain county appears not to be realistic, but restriction within the boundaries of the state seems practical and advisable. (This is not to say that a developing municipality can ignore a demand for housing within its boundaries on the part of people who commute to work in another state.) Here we have already defined the region at present as “those portions of Camden, Burlington and Gloucester Counties within a semicircle having a radius of 20 miles or so from the heart of Camden City.” The concept of “fair share” is coming into more general use and, through the expertise of the municipal planning adviser, the county planning boards and the state planning agency, a reasonable figure for Mount Laurel can be determined, which can then be translated to the allocation of sufficient land therefor on the zoning map. See generally, New Jersey Trends, eh. 27, Listolcin, Fair Share Housing Distribution: An Idea Whose Time Has Gome?, p. 353.23 We may add that we think that, in arriving at such a determination, the type of information and estimates, which the trial judge (119 N. J. Super. at 178) directed the township to compile and furnish to him, concerning the housing needs of persons of low and moderate income now or formerly residing in the township in substandard dwellings and those presently employed or reasonably expected to be employed therein, will be pertinent.

There is no reason why developing municipalities like Mount Laurel, required by this opinion to afford the opportunity for all types of housing to meet the needs of various categories of people, may not become and remain attractive, viable communities providing good living and adequate services for all their residents in the kind of atmosphere which a democracy and free institutions demand. They can have industrial sections, commercial sections and sections for every kind of housing from low cost and multi-family to lots *191of more than an acre with very expensive homes. Proper planning and governmental cooperation can prevent over-intensive and too sudden development, insure against future suburban sprawl and slums and assure the preservation of open space and local beauty. We do not intend that developing municipalities shall be overwhelmed by voracious land speculators and developers if they use the powers which they have intelligently and in the broad public interest. Under our holdings today, they can be better communities for all than they previously have been.

Ill

The Remedy

As outlined at the outset of this opinion, the trial court invalidated the zoning ordinance in toto and ordered the township to make certain studies and investigations and to present to the court a plan of affirmative public action designed “to enable and encourage the satisfaction of the indicated needs” for township related low and moderate income housing. Jurisdiction was retained for judicial consideration and approval of such a plan and for the entry of a final order requiring its implementation.

We are of the view that the trial court’s judgment should be modified in certain respects. We see no reason why the entire zoning ordinance should be nullified. Therefore we declare it to be invalid only to the extent and in the particulars set forth in this opinion. The township is granted 90 days from the date hereof, or such additional time as the trial court may find it reasonable and necessary to allow, to adopt amendments to correct the deficiencies herein specified. It is the local function and responsibility, in the first instance at least, rather than the court’s, to decide on the details of the same within the guidelines we have laid down. If plaintiffs desire to attack such amendments, they may do so by supplemental complaint filed in this cause within 30 days of the final adoption of the amendments.

*192We are not at all sure what the trial judge had in mind as ultimate action with reference to the approval of a plan for affirmative public action concerning the satisfaction of indicated housing needs and the entry of a final order requiring implementation thereof. Courts do not build housing nor do municipalities. That function is performed by private builders, various kinds of associations, or, for public housing, by special agencies created for that purpose at various levels of government. The municipal function is initially to provide the opportunity through appropriate land use regulations and we have spelled out what Mount Laurel must do in that regard. It is not appropriate at this time, particularly in view of the advanced view of zoning law as applied to housing laid down by this opinion, to deal with the matter of the further extent of judicial power in the field or to exercise any such power. See, hmvever, Pascack Association v. Mayor and Council of Township of Washington, 131 N. J. Super. 195 (Law Div. 1974), and cases therein cited, for a discussion of this question. The municipality should first have full opportunity to itself act without judicial supervision. We trust it will do so in the spirit we have suggested, both by appropriate zoning ordinance amendments and whatever additional action encouraging the fulfillment of its fair share of the regional need for low and moderate income housing may be indicated as necessary and advisable. (We have in mind that there is at least a moral obligation in a municipality to establish a local housing agency pursuant to state law to provide housing for its resident poor now living in dilapidated, unhealthy quarters.) The portion of the trial court’s judgment ordering the preparation and submission of the aforesaid study, report and plan to it for further action is therefore vacated as at least premature. Should Mount Laurel not perform as we expect, further judicial action may be sought by supplemental pleading in this cause.

The judgment of the Law Division is modified as set forth herein. No costs.

*193Mountain, J.

(concurring). I agree with the conclusions reached in the Court’s opinion and essentially with the opinion itself. In one important respect, however, I disagree. The Court rests its decision upon a ground of State constitutional law. I reach the same result by concluding that the term, “general welfare,” appearing in N. J. S. A. 40:55-32, can and should properly be interpreted with the same amplitude attributed to that phrase in the opinion of the Court, as well as otherwise in the manner there set forth. I therefore would rest the conclusions we here announce upon an interpretation of the statute, and not upon the State constitution.

Accordingly, since I read the statute — without resort to the Constitution — to justify, if not compel, our decision, I find it unnecessary to express any view as to the merits of the constitutional argument set forth in the Court’s opinion.

Pashman, J.

(concurring). With this decision, the Court begins to cope with the dark side of municipal land use regulation — the use of the zoning power to advance the parochial interests of the municipality at the expense of the surrounding region and to establish and perpetuate social and economic segregation.

The problem is not a new one. Early opponents of zoning advanced the possibility of such abuse as an argument against allowing municipalities the power to zone. See, e. g., Ambler Realty Co. v. Euclid, 297 F. 307, 316 (N. D. Ohio 1924), rev’d 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926). Later, even those sympathetic to the goals and methods of zoning began to express concern. See, e. g., Haar, “Zoning for Minimum Standards: The Wayne Township Case,” 66 Harv. L. Rev. 1051 (1953). In that spirit, Justice Jacobs wrote for this Court in Pierro v. Baxendale, 20 N. J. 17, 29 (1955):

We are aware of the extensive academic discussion following the decisions in the Lionshead and Bedminster cases, supra, and the suggestion that the very broad principles which they embody may intensify dangers of economic segregation which even the more tradi*194tional modes of zoning entail. * * * In the light of existing population and land conditions within our State these powers may fairly be exercised without in anywise endangering the needs or reasonable expectations of any segments of our people. If and when conditions change, alterations in zoning restrictions and pertinent legislative and judicial attitudes need not be long delayed. ''

The growth of the new suburbs, first as affluent residential communities and, more recently, as sites for commercial and industrial development, leaving persons with low or even moderate incomes housed inadequately in the cities and the older, inner suburbs, far from new sources of employment, magnified the importance of the problem, moving it from the realm of speculation to that of physical and social reality. Justice Hall was among the first to recognize the new significance of the problem in his now classic dissent to Vickers v. Gloucester Tp., 37 N. J. 232, 252 (1962), appeal dismissed 371 U. S. 233, 83 S. Ct. 326, 9 L. Ed. 2d 495 (1963). The facts of this ease, as well as the information compiled by various governmental agencies, of which the Court may take notice, e. g., Nat’l Comm’n on Urban Problems, Building the American City, H. R. Doc. No. 34, 91st Cong. 1st Sess. 211 (1968); N. J. Dept. of Community Affairs, Land Use Regulation: The Residential Land Supply (1972),1 demonstrate that judicial action in this area is long overdue.

Therefore, I join in the thoughtful and eloquent majority opinion of Justice Hall. I differ from the majority only in that I would have the Court go farther and faster in its implementation of the principles announced today. The fact that abuses of the municipal zoning power are now widespread and derive from attitudes and premises deeply ingrained in the suburban planning and zoning processes requires that the Court not restrict itself to the facts of this particular case but, rather, lay down broad guidelines for judicial review of municipal zoning decisions which implicate *195these abuses. Cf. Busik v. Levine, 63 N. J. 351, 363-64 (1973), appeal dismissed 414 U. S. 1106, 94 S. Ct. 831, 38 L. Ed. 2d 733 (1973).

I

The misuse of the municipal zoning power at issue in this case, generieally described as “exclusionary zoning,” see, e. g., BrooTcs, Exclusionary Zoning 8 (Am. Soc’y of Planning Officials 1970), involves two distinct but interrelated practices: (1) the use of the zoning power by municipalities to take advantage of the benefits of regional development without having to bear the burdens of such development; and (2) the use of the zoning power by municipalities to maintain themselves as enclaves of affluence or of social homogeneity.

Both of these practices are improper and to be strongly condemned. They are violative of the requirement, found both in the Constitution of 1947, Art. I, § 1 and the zoning enabling statute itself, N. J. S. A. 40:55-32, that municipal zoning ordinances further the general welfare. Cf. Cresskill v. Dumont, 15 N. J. 238, 247-49 (1954); Duffcon Concrete Products, Inc. v. Cresskill, 1 N. J. 509 (1949). They aré inconsistent with the fundamental premise of the New Jersey zoning legislation that zoning is concerned with the physical condition of the municipality not its social condition. In a deeper sense, they are repugnant to the ideals of the pluralistic democracy which America has become.

The motivation for exclusionary zoning practices are deeply embedded in the nature of suburban development. In part, these practices are motivated by fear of the fiscal consequences of opening the community to all social and economic classes. Residents of the municipality anticipate that higher density development will require the construction of additional roads, sewers, and water systems, the provision of additional municipal services, and the increase of school expenditures, all of which must be financed through local property taxes. Often, although not universally, this is a reasonable concern, *196see generally Sternlieb, Residential Development, Urban Growth and Municipal Costs (1973); N. J. Cty. & Mun. Gov. Study Comm’n, Housing & Suburbs: Fiscal & Social Impact of Multifamily Development (1974), and, as long as these costs are primarily financed through local property taxes, will continue to impel suburban communities to use the zoning laws to encourage commercial development and discourage settlement of less affluent families. But cf. Robinson v. Cahill, 62 N. J. 473 (1973), cert. denied 414 U. S. 976, 94 S. Ct. 292, 38 L. Ed. 2d 219 (1973). Insofar as this fiscal situation prevails, suburban communities will find the temptation of exclusionary zoning alluring.

In addition, exclusionary zoning practices are also often motivated by fear of and prejudices against other social, economic, and racial groups.2 Nat’l Comm. Against Discrimination in Housing, Jobs and Housing: Final Summary Report on the Housing Component, 25-29 (1972). Thus, in a recent survey of suburban municipal leaders, 42.6% identified social and racial conflict as being the chief impact of low and moderate cost subsidized housing on the municipality, while only 21.3% identified fiscal problems as the chief impact. Cty. & Mun. Gov. Study Comm’n, Housing & Suburbs: Fiscal & Social Impact of Multifamily Development, supra at 86. A large proportion felt that even State assumption of the additional municipal costs of a balanced housing policy would not make a great impact on the general unacceptability of low or moderate income housing. Id. at 89. ETor are these attitudes, however disappointing we may find them at this late date, wholly surprising. Many people who settle in suburban areas do so with the specific intention of living in affluent, socially homogeneous communities and of escaping what they perceive to be the problems of the cities. See generally, Clawson, Suburban Land Conversion in the *197United States, 45 (1971). They do not wish their insular communities to be disturbed by the introduction of diverse social, racial, and economic groups. The experience of the nation over the past 20 years must serve as a caution that, however much we might wish it, we cannot expect rapid, voluntary reversal of such attitudes.

Exclusionary zoning may assume a wide variety of forms. Ultimately, the existence of such practices must be measured by exclusionary intent and actual or potential exclusionary effect. Cf. Hawkins v. Shaw, 437 F. 2d 1286 (5 Cir. 1971); Hobson v. Hansen, 269 F. Supp. 401 (D. D. C. 1967), aff'd sub nom. Smuck v. Hobson, 132 U. S. App. D. C. 372, 408 F. 2d 175 (D. C. Cir. 1969). Some zoning devices, however, which are inherently exclusionary in effect or which lend themselves especially readily to abuse have come into wide-spread use and are a revealing gauge of the extent of exclusionary zoning in New Jersey:

1) Minimum house size requirements

As of 1970, 92% of the land in the Department of Community Affairs study area3 zoned for single family housing was covered by some minimum house size requirement. More than 65% was zoned for houses with 1,000 square feet or more of floor space, and 38.9% for houses of 1,200 square feet or more. By contract, the controversial case of Lionshead *198Lake v. Wayne Tp., 10 N. J. 165 (1953), appeal dismissed 344 U. S. 919, 73 S. Ct. 386, 97 L. Ed. 708 (1953), upheld a miuimum of 768 square feet in all districts. There is wide variation from county to county and within the various counties.4 In the so-called “outer-ring” counties in northern New Jersey — Morris, Somerset, Middlesex, and Monmouth5 — houses of less than 1,000 square feet may be built on only about 10% of the land zoned for single family dwellings. On 77% of the land zoned for single family dwellings,- houses must have 1,200 square feet or more of floor space. In the South Jersey outer-ring counties, Burlington, Camden, and Gloucester, the figures are 31.9% and 43.5% respectively.

The effect on the cost of housing of such requirements is obvious. If one assumes construction costs of $20 per square foot of floor space,6 a 1,000 square foot minimum imposes a corresponding minimum figure of $20,000 upon the portion of the cost of a new house attributable to construction. A recent *199study of housing costs indicates that floor space is the single most important factor contributing to differences in prices for new housing, even more important than the socio-economic status of the municipality. Sagalyn & Sternlieb, supra at 48. 2) Minimum lot size and minimum frontage requirements

On two-thirds of the land in the Department of Community Affairs study area zoned in 1970 for single family dwellings, houses could not be built on lots of less than an acre. Upon only 5.1% could houses be built on 10,000 square feet or less. Approximately 10% of such land in the outer-ring counties in South Jersey was zoned for 10,000 square foot lots or less; 45.9% was zoned for an acre or more. In the North Jersey outer-ring counties only 1.2% of the land zoned for single family dwellings was available for use as lots of 10,000 square feet or less; 77% was zoned for one acre or larger lots. Here, too, there are wide variations among counties. In Camden, 24.5% of the land was zoned for lots of 10,000 square feet or less, and less than 34% for lots of an acre or more. In Somerset County, only .2% of the land was zoned for lots of 10,000 square feet or less; 85.3% was zoned for lots of an acre or more, and 24.6% was zoned for three acres or more. By way of comparison, the American Public Health Association, a vigorous advocate of high minimum standards, recommends 6,000 square feet as a suitable minimum lot size based upon health considerations. Am. Public Health Ass’n, Planning the Neighborhood, 37 (1948).

Minimum frontage requirements frequently, although not invariably, are found together with minimum lot size requirements. The Residential Land Supply at 21-24. Only 13.5% of the land zoned in 1970 for single family housing in the Department of Community Affairs study area was zoned for 100 foot minimum frontage or less. In that area, 54.3% was zoned for 150 feet or more. This device was widely used in the northern outer-ring counties, where only 5% of the land is zoned for less than 100 foot frontage and 68.4% is zoned for more than 150 feet, but somewhat less widely used in the southern outer-ring counties, where 22.7% of *200the land was zoned for less than 100 foot frontage and 42.5% was zoned for more than 150 feet.

Analysis of the exclusionary impact of the widespread use of minimum lot size and minimum frontage requirements is a more complex task than that of analyzing minimum building requirements. See generally, Building the American City, supra at 213-15; Williams & Norman, supra at 493-97; Sagalyn & Sternlieb, supra at 6-16, 66-67. There is a significant correlation between lot size and price of housing in areas without sewage service and between frontage and price in areas with sewage service. Sagalyn & Sternlieb, supra at 54-56. At the very least, it can be said with certainty that extensive mapping for large lots or large lot widths drives up the cost of smaller lots and thereby significantly raises the overall price of housing. Williams & Norman, supra at 496-97.

3) Prohibition of multifamily housing

Realistically, much of the housing needs of persons with low or moderate incomes will have to be met through various forms of multifamily housing. Williams & Norman, supra at 481. Hence, restrictions upon the construction of such housing have a highly exclusionary effect. In the Department of Community Affairs study area, construction of multifamily housing was permitted on only 6.2% of the land zoned for residential uses. If six aberrant rural municipalities are disregarded, the percentage falls to 1.1%.7 In the South Jersey outer-ring counties, 2.7% of such land is zoned for multifamily housing; in the northern outer-ring counties, only of 1% is so zoned. There is no land zoned for multi*201family housing in Somerset County and only .006% is so zoned in Monmouth County.8

4) Bedroom restrictions

The effect of zoning against multifamily dwellings is magnified by restrictions upon the number of bedrooms which may be included in each dwelling unit. In the Department of Community Affairs study area9 59% of the already limited area of land zoned for multifamily dwellings is restricted to one-bedroom or efficiency apartments. On only 20.4% of this land is construction of apartments of three or more bedrooms permitted. In addition, in many areas where some construction of larger apartments is permitted, they are limited to a small percentage of any individual development. The Residential Land Supply, supra at 11. In the North Jersey outer-ring counties, 78% of the land zoned for multifamily housing is burdened with bedroom restrictions. In the South Jersey outer-ring counties, 83% of the land zoned for multifamily housing is so restricted. The situation is particularly acute in Burlington County, where 95.8% of the land zoned for multifamily housing has bedroom restrictions.

The Department of Community Affairs concluded from these figures that:

*202* * * [I]n general, the multi-family zoned land is geared to accommodate the housing needs of single people, married couples without children, and retired people, and not geared to the housing needs of the large part of the population living as families with children. [The Residential Land Supply, supra at 12; footnote omitted],

5) Prohibition of mobile homes

Mobile homes offer an alternate, less expensive form of housing. They have long since ceased to be mere “house trailers” but have become an important form of mass produced semi-permanent housing. Indeed, for many persons they may be the only form of new housing available. However, only .1% of the land zoned for residential use in the Department of Community Affairs study area was zoned for use by mobile homes. In the South Jersey outer-ring counties, .3% of the residential land was so zoned, the bulk of it being in Gloucester County, which had twice as much land zoned for mobile homes as the rest of the study area combined. None was zoned for this purpose in Camden County. No land was zoned for mobile homes in the northern outer-ring counties.10

6) Ov&rzoning for nonresidential uses

Zoning a great proportion of the developable land in a municipality noncumulatively for nonresidential uses may have the effect of forcing the price of land zoned for residential purposes up beyond the reach of persons with low or moderate incomes. Neither statewide nor countywide figures provide unambiguous evidence of the use of such practice at present in New Jersey. Land Use Regulation, supra at 6-8; Sagalyn & Sternlieb, supra at 96. At the municipal level, the use of such practices is more evident in some areas. Thus, in Mt. Laurel itself, 29.2% of the land in the township, totaling 4,121 acres, is zoned for industrial uses, although *203only 100 acres within the township has actually been developed for such use in the past 10 years, and there is no reasonable prospect of industrial rises expanding to such proportions.

If anything, these figures underestimate the extent of exclusionary zoning in this State. A wide variety of other techniques may be used to achieve an exclusionary effect. In addition, a municipality need not use all of these techniques to achieve exclusionary ends. Municipalities which have large lot-size and frontage requirements may not have building-size requirements and vice versa. Thus, only 18% of the land in the Department of Community Affairs study area zoned for single family residences permitted houses with less than 1,200 square feet of floor space to be constructed on a acre or less site with 100 foot or less frontage.

Forceful judicial intervention is necessitated not only by the already widespread use of exclusionary zoning practices and by the fact that the motivations for such are deeply ingrained in the suburban zoning and planning process,' but also by certain extrinsic factors of which the Court may take notice.

First, the United States suffers from an acute national housing shortage. It has been estimated that over 10 million dwelling units would be needed to provide each family in the country with adequate housing. Building the American City, supra at 75. In New Jersey, it has been estimated that there is an immediate need for over 400,000 dwelling units. Dep’t of Community Affairs, The Housing Crisis in New Jersey, 1970 (1970).11 New Jersey, already the second most densely populated state in the country, is experiencing continuing population growth — it is estimated that by 1985 the total population will have increased from its 1970 figure of 7,200,000 to about 10,000,000. Special Message to the Legislature by Governor Cahill, A Blueprint for Housing in New *204Jersey, Dec. 7, 1970, at 1. Housing, particularly in urban areas, is deteriorating. The percentage of substandard units throughout the State increased from 14.8% in 1960 to 17.4% in 1969. In Hudson County, the increase was from 22.3% to 31.3%. Housing Crisis in New Jersey, supra at 14. Some of these units dropped out of the housing market altogether. It has been estimated that simply to keep up with population growth and to replace units which drop out of the housing market, 100,000 new units would have to be constructed in the State each year. Special Message to the Legislature by Governor Cahill, A Blueprint for Housing in New Jersey, Dec. 7, 1970, at 1. In fact, the construction of new housing in the State peaked in 1964, when permits were issued for the construction of 68,078 units, and has declined steadily since then. In 1970, permits were issued for construction of only 39,897 units. Sagalyn & Sternlieb, Zoning & Housing Costs, 98 (1972).

The brunt of this shortage is, of course, borne by persons with low or moderate incomes. As of 1970, it was estimated that not only were half of all low income families in the State obliged to live in inadequate housing, but so were approximately 125,000 families with moderate incomes. Housing Crisis in New Jersey, supra at iv. The median cost of a new single family detached house was $30,000 in the northeastern region of the country in 1969. Sagalyn & Sternlieb, supra at 20. Prices since then have risen precipitously. A study made in 1971 found median new house costs in suburban counties to range from $33,263 in Burlington to $62,500 in Somerset and $67,000 in Bergen. Id. at 22. Such 'housing was effectively beyond the reach of families with incomes of less than $15,000 per year. Housing Crisis in New Jersey, supra at 42. As of the time of that study, the median family income in New Jersey was $11,407 per year. Analyses by both the federal and state governments, Building the American City, supra at 93; Housing Crisis in New Jersey, supra at 40-43, indicate that the majority of families can afford to neither rent nor buy new housing at current prices. Other *205authorities estimate that such housing may be beyond- the financial capacity of as much as ¿4 of all the families in the State, Sagalyn & Sternlieb, supra at 64, and as much as 90% of those families in 'which the head of the household is below the age of 35. Nat'l Comm. Against Discrimination in Housing, Housing and Jobs: Final Summary Report on the Sousing Component, supra at 22. In theory, low and moderate income families should benefit even from construction of new housing which they themselves cannot afford because such housing creates vacancies which “filter down.” In reality, however, most of these vacancies are absorbed by the enormous lag between population growth and new housing construction. Sagalyn & Sternlieb, supra at 42. The housing which does “filter down” to persons with low or moderate incomes is often badly dilapidated and in deteriorating neighborhoods. Building the American City, supra at 11; Clawson, Suburban Land Conversion in the United States, 330 (1970).

The existence of this housing shortage has been amply recognized by all branches of government in this State. See, e. g., Inganamort v. Borough of Fort Lee, 62 N. J. 521 (1973); N. J. Mortgage Finance Agency v. McCrane, 56 N. J. 414 (1970); Marini v. Ireland, 56 N. J. 130 (1970) ; Mortgage Finance Agency Law, N. J. S. A. 17:1B-5 (L. 1970, c. 38); Department of Community Affairs Demonstration Grant Law, N. J. S. A. 52:27D-61 (L. 1967, c. 82); Special Message to the Legislature by Governor Cahill, A Blueprint for Sousing in New Jersey, Dec. 7, 1970; Special Message to the Legislature by Governor Cahill, New Sorizons in Sousing, Mar. 27, 1972.

Second, the growing movement of commerce and industry to the suburbs is imposing a heavy burden upon employees who are unable to obtain housing in these suburban areas. The trend, which began after World War II and has continued unabated, arises from a variety of causes — need for additional land for expansion, automated methods of handling goods which make single-floor layout of manufacturing plants economically desirable, increased access pro*206vided by superhighways, desire for aesthetic surroundings, lower suburban property taxes, etc. See generally, Clawson, Suburban Land Conversion in the United States, 40 (1971). Retail establishments have also relocated in the suburbs, taking advantage of the shift in the affluent population, the access provided by suburban highways, and the more attractive surroundings. Id. at 40-41. The result has been a shift of blue-collar jobs from the cities to the suburbs. Id. at 40. Thus in the New York metropolitan region,12 75% of the 990,000 new jobs created between 1959 and 1967 were located outside of New York City. Jobs at manufacturing production sites outside New York City increased during that period by 138,440, while such jobs within New York City diminished by 47,110. Of the 100,600 new jobs created in retailing between 1959 and 1965, 95% were located outside of New York City. The new jobs created within New York City in recent years have been confined almost exclusively to services, finance, insurance, communications, utilities, government and manufacturing headquarters offices, all of which are fields with high percentages of white-collar employment. It appears that these trends will continue into the foreseeable future. It has been estimated that between 1970 and 1985 New York City will lose another 137,700 factory jobs, and the suburbs gain 122,700. Nat'l Comm. Against Discrimination in Housing, Jobs and Housing, 6-9 (1970). Job movement in the Philadelphia metropolitan region displays an essentially identical pattern. Nat’l Comm. Against Discrimination in Housing, Impact of Housing Patterns on Job Opportunities, 21-26 (1968). This is, of course, the natural and foreseeable consequence of “fiscal zoning” that encourages the development within a municipality of commercial establishments, which are net tax-providers, and discourages the development of housing for per*207sons who would work in such establishments, on the grounds that they are net revenue-absorbers.

This trend is one that imposes unfair burdens on the worker who is locked out of suburban residential areas. For blue-collar workers, commutation from the cities to suburban job locations is both time-consuming and prohibitively expensive. There is often no access at all by public mass transit and even when such transportation is available in theory it is frequently impractical in fact. Nat’l Comm. Against Discrimination in Housing, The Impact of Housing Patterns on Job Opportunities, supra at 27-30; Nat’l Comm. Against Discrimination in Housing, Jobs and Housing, supra at 23-26. See generally, Babcock and Bosselman, Exclusionary Zoning: Land Use Requlation in the 1970s, 114-15 (1973).

Third, even as we write, development proceeds apace. Once an area is developed, it becomes much more difficult to alter its social and economic character. There is a hazard that prolonged judicial inaction will permit exclusionary practices to continue to operate and will allow presently developing communities to acquire permanent exclusionary characteristics. The concern is not that New Jersey will soon be without developable land, but that large areas now in the process of development will have already acquired irrevocably exclusionary characteristics before the courts effectively intervene. Thus, the Delaware Yalley Regional Planning Commission has estimated that the amount of developed land in the Philadelphia metropolitan area (including Burlington, Camden, Gloucester, and Mercer Counties) will increase by 38% between 1960 and 1985, Clawson, supra at 294, and the Regional Plan Association has estimated that intensive land use in the New York metropolitan area (which includes most of northern New Jersey) will double in the same period, Clawson, supra at 279.

Finally, we must take notice of the fact that the cost of building new housing has increased steadily over the past 10 years, and shows all signs of continuing to increase in *208the future. Between 1963 and 1969, the median sales price of new single-family housing in the northeastern part of the United States rose from $20,000 to $30,500. Sagalyn & Sternlieb, supra at 20. The costs of building rental housing had increased comparably. See generally, Clawson, supra at 82-83. As the costs of housing slip farther beyond the reach of persons of low and moderate incomes, the practical valué of zoning reform diminishes and becomes increasingly contingent on the establishment of new State and federal housing subsidy programs.

Today’s decision by its terms expressly concerns exclusionary zoning practices in municipalities which are developing but which “still are not completely developed and remain in the path of inevitable future residential, commercial and industrial demand and growth.” Ante at 160. As to these communities, the Court holds:

* * * [E]very such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate income housing and in its regulations must affirmatively afford that opportunity, at least to the extent of the municipality’s fair share of the present and prospective regional need therefor. These obligations must be met unless the particular municipality can sustain the heavy burden of demonstrating peculiar circumstances which dictate that it should not be required so to do. I Ante at 174; footnote omitted].

The majority has chosen not to explore in this case either the extent of the affirmative obligations upon developing municipalities or the role of the courts in enforcing those obligations. It has also chosen not to consider the degree to which the principles applicable to developing municipalities are also applicable to rural ones and to largely developed ones. The facts set out above seem to me to demonstrate that exclusionary zoning is a problem of such magnitude and depth as to require that the Court extend these principles to all municipalities in the State, recognizing, of *209course, that they may have different implications for municipal conduct when applied in different areas, and that the Court establish a policy of active judicial enforcement, not only of the negative obligations imposed upon municipalities by this decision but also of the affirmative obligations.

II

I consider first the extent of the affirmative obligation to plan and provide for housing opportunities for persons with low and moderate incomes that municipalities assume when they choose to avail themselves of land use controls permitted by statute. Although this discussion will concern itself initially with developing municipalities, many of the same considerations also apply mutatis mutandi to developed municipalities and rural areas, as will subsequently become clear.

A municipality need not exercise at all the powers permitted it by the zoning and planning statutes, N. J. S. A. 40:55-30 et seq. and N. J. S. A. 40:55-1.1 et seq.13 Once, however, it chooses to enter the field of land use regulation it assumes a duty — one of constitutional dimensions, deriving from N. J. Const. (1947), Art. I, § 1 — to act affirmatively to provide its fair share of the low and moderate income housing necessary to meet the regional housing needs. Cf. Southern Alameda Spanish Speaking Organization v. Union City, 424 F. 2d 291, 295-6 (9 Cir. 1970); Williams, American Planning Law: Land Use and the Police Power §§ 66.15, 66.16 (1974).

The substantive content of this affirmative obligation will necessarily vary from municipality to municipality, depend*210ing upon, among other things, the intensity of the regional housing needs, the extent of previous exclusionary practices by the municipality, and the degree to which the municipality is benefiting, directly or indirectly, from; regional economic development. A factor of special importance is the sufficiency of local housing opportunities for persons who might fill jobs created by new commercial and industrial development in the locality. Cf. Building the American City, supra at 243; ALI, Model Land Development Code, § 7-405 (Ten. Draft No. 3, 1971); Babcock & Bosselman, Exclusionary Zoning: Land Use Regulation and Housing in the 1970s, 114-15 (1973).

Every developing municipality has at least a duty to consider regional housing needs in all its planning activities, both formal and informal, including its formulation of the comprehensive plan underlying its zoning ordinance, N. J. S. A. 40:55-21, its adoption of a master plan, N. J. S. A. 40:55-1.10 and its consideration of applications for zoning variances, N. J. S. A. 40:55—39, and for approval of subdivision plats, N. J. S. A. 40:55-1.14.14 In addition, since effective planning for regional needs is virtually impossible without some degree of intergovernmental cooperation, all developing municipalities also have an affirmative obligation to cooperate, where appropriate, in regional planning efforts, to cooperate, for example, with regional planning boards established pursuant to N. J. S. A. 40:27-9 and in area review procedures established under the Intergovernmental Cooperation Act, 42 U. S. C. 4231 and implemented by U. S. Office of Management and Budget Circular A-95 (July 24, 1969) and N. J. A. C. 5:42-1.1 et seq. See generally Babcock & Bosselman, Exclusionary Zoning: Land Use Regulation and Homing in the 1970s, 135-47 (1973).

*211There is little hope that the private housing construction industry will be able to satisfy the State’s housing needs in the foreseeable future, even if all exclusionary barriers are Temoved. Building the American City, supra at 93. To meet these needs, State or federal assistance will be required. This fact has been recognized by both the State Legislature and Congress in a lengthy series of statutes providing governmental subsidies for private construction and ownership of low and moderate income housing. See, e. g., Housing and Community Development Act of 1974, 88 Stat. 633 (codified at various places in 12, 42 U. S. C.); National Housing Act of 1959, § 303, as amended, 12 U. S. C. 1701q; National Housing Act, §§ 335, 336, as amended, 12 U. S. C. 1715z, 1715z-1 et seq.; Mortgage Einance Agency Law, N. J. S. A. 17:1B-4 et seq.; Housing Einance Agency Law, N. J. S. A. 55:14J-1 et seq.; Department of Community Affairs Demonstration Grant Act, N. J. S. A. 52:27D-59 ei seq. To a greater or lesser degree, all of the programs require active municipal cooperation. Eailure to actively cooperate in the implementation of such programs as effectively thwarts the meeting of regional needs for low and moderate income housing as does outright exclusion. See, e. g., Farmworkers of Florida Housing Projects, Inc. v. Delray Beach, 493 F. 2d 799 (5 Cir. 1974); Kennedy Park Homes Ass’n v. Lackawanna, 318 F. Supp. 669 (W. D. N. Y. 1970), aff’d 436 F. 2d 108 (2 Cir. 1970), cert. den. 401 U. S. 1010, 91 S. Ct. 1256, 28 L. Ed. 2d 546 (1971). Developing municipalities have a duty to make all reasonable efforts to encourage and facilitate private efforts to take advantage of these programs.

Finally, there may be circumstances in which the municipality has an affirmative duty to provide housing for persons with low and moderate ineomes through public construction, ownership, or management. See, e. g., Community Development and Housing Act of 1974, Title II, 42 U. S. C. 1401 et seq.; Local Housing Authority Law, N. J. S. A. *21255:14A-1; cf. Mahaley v. Cuyahoga Metropolitan Housing Authority, 355 F. Supp. 1257 (N. D. Ohio 1973) rev’d 500 F. 2d 1087 (6 Cir. 1974), cert. den. 419 U. S. 1108, 95 S. Ct. 781, 42 L. Ed. 2d 805 (1975).

There are certain important limitations on the scope of these affirmative obligations. While municipalities must plan and provide for regional housing needs, no municipality need assume responsibilty for more than its fair share of these needs. The purpose of land use regulation is to create pleasant, well-balanced communities, not to recreate slums in new locations. It is beyond dispute, that when the racial and socioeconomic composition of the population of a community shifts beyond a certain point, the white and affluent begin to abandon the community. While the attitudes underlying this “tipping” effect must not be catered to, the phenomenon must be recognized as a reality. See, e. g., Graves v. Romney, 502 F. 2d 1062 (8 Cir. 1974), cert den. - U. S. -, 95 S. Ct. 1354, 43 L. Ed. 2d 440 (1975); Otero v. New York City Housing Authority, 484 F. 2d 1122 (2 Cir. 1973). Municipalities have a legitimate interest in placing an upper limit on the extent of uses which, if permitted to expand without limit, might reasonably be feared to operate to the general detriment. Tidewater Oil Co. v. Carteret, 84 N. J. Super. 525 (App. Div. 1965), aff’d 44 N. J. 338 (1965). The limitation of the municipality’s affirmative duty to one of providing for its fair share of reasonable needs responds to this interest. Cf. Mass. Gen. Laws Ann., c. 40B, §§ 20-23 (a statute authorizing the state to override local zoning restrictions for low and moderate income housing projects, but limiting the municipality’s obligations to fixed annual and total maxima). A number of regions have, in response to the problem of exclusionary zoning, voluntarily sought to put such fair share housing plans into effect. See Babcock & Bosselman, supra at 109-13.

Nor need a municipality altogether give up control of the pace and sequence of development. A municipality has *213a legitimate interest in insuring that residential development proceeds in an orderly and planned fashion, that the burdens upon municipal services do not increase faster than the practical ability of the municipality to expand the capacity of those services, and that exceptional environmental and historical features are not simply concreted over. See, e. g., Golden v. Ramapo Planning Board, 30 N. Y. 2d 359, 334 N. Y. S. 2d 138, 285 N. E. 2d 291 (1972), appeal dismissed 409 U. S. 1003, 93 S. Ct. 436, 34 L. Ed. 2d 294 (1972); Construction Industry Ass’n of Sonoma County v. Petaluma, 375 F. Supp. 574 (N. D. Cal. 1974); Mass. Gen. Laws Ann., c. 40B, §§ 20, 23.15 On the other hand, such regulations must be reasonable, substantially related to the purpose which they seek to achieve, and must adopt the least exclusionary means practical. “Zoning is a means by which a governmental body can plan for the future — it may not be used as a means to deny the future.” National Land and Investment Co. v. Kohn, 419 Pa. 504, 528, 215 A. 2d 597, 610 (Pa. Sup. Ct. 1965). By way of illustration, large lot zoning is commonly rationalized as a device for preventing premature development. Such zoning, it is claimed, merely creates holding zones. In practice, however, it appears that land zoned for large lots, even where intended as an interim holding zone, tends to become frozen in a pattern of low density development. Williams & Norman, supra at 495. Such zoning is not a reasonable device for regulating the pace and sequence of development. Its effects on development, if any, are merely exclusionary.

Finally, the affirmative duty to plan and provide for regional needs does not require the municipality to make any specific piece of property available for low or moderate income housing, absent a showing that there are inadequate alternative sites realistically available for that type of de*214velopment. A municipality must zone in accordance with a comprehensive plan. N. J. S. A. 40:55-32. Once it has adopted a comprehensive plan which properly provides for the community’s fair share of the regional housing needs, it is entitled to be able to enforce that plan through its zoning ordinances. To permit a developer to com,e in at a later date and demand, as a matter of right, that a piece of property not presently zoned to permit development of low or moderate cost housing be so zoned, is to undermine the entire premise of land use regulations. Williams, supra at § 66.15; see Confederation de la Raza Unida v. Morgan Hill, 324 F. Supp. 895 (N. D. Cal. 1971). The one exception to this principle is the situation in which the developer can show that, as a matter of practical fact, sufficient land is not available for development in the areas zoned for low or moderate income housing. See, e. g., Kennedy Park Homes Association v. Lackawanna, 318 F. Supp. 669 (W. D. N. Y. 1970), aff’d 436 F. 2d 108 (2 Cir. 1970), cert. den. 401 U. S. 1010, 91 S. Ct. 1256, 28 L. Ed. 2d 546 (1971) (construction of multi-family housing in area zoned for it would perpetuate a segregated housing pattern and add to existing problem of overcrowding); Pascack Ass’n v. Washington Tp., 131 N. J. Super. 195 (Law Div. 1974) (area zoned for multi-family housing was already largely occupied by other, non-residential uses, and was burdened with other zoning requirements that made construction of low or moderate income housing impractical).

The affirmative obligations of developing municipalities so far discussed are legally binding and judicially enforceable. It is a truism that courts have no inherent expertise in matters of land use planning. They are not equipped to sit as higher planning boards and substitute their judgment for municipal bodies lawfully established for the purpose of making planning and zoning decisions. Bow & Arrow Manor v. West Orange, 63 N. J. 335, 343 (1973); Kozesnik v. Montgomery Tp., 24 N. J. 154, 167 (1957). The decision as to *215how the municipality should go about performing the affirmative duties set out above is one initially to be made by the officials of the municipality itself. Nevertheless, if the municipality has failed to take affirmative steps to make realistically possible a variety and choice of housing so as to meet its fair share of the regional housing needs, its actions are presumptively illegal and the burden shifts to the municipality to justify them. The mere fact that local land use control issues are involved does not preclude the court from making such determinations, nor, if a court finds that the municipality has failed to meet its obligation, from exercising the full panoply of equitable powers to remedy the situation. Norwalk CORE v. Norwalk Redevelopment Agency, 395 F. 2d 920 (2 Cir. 1968); Hawkins v. Shaw, 437 F. 2d 1286 (5 Cir. 1971); Pascack Ass’n v. Washington Tp., 131 N. J. Super. 195 (Law Div. 1974).

Judicial enforcement of municipal obligations, both negative and affirmative, to plan and provide for a fair share of regional housing needs, even if only directed to one municipality, necessarily has grave implications for the entire region. In dealing with such cases courts must act both deliberately and imaginatively. In administering such relief the trial court ought to proceed in four steps:

(1) identify the relevant region;16

(2) determine the present and future housing needs of the region;

(3) allocate these needs among the various municipalities in the region;17 and

*216(4) shape a suitable remedial order.

Cf. Williams, American Planning Law: Land Use and the Police Power § '66.38 (1974). Needless to say, all of these steps involve difficult factual determinations based upon expert testimony and statistical evidence. It may well be appropriate for the court to appoint independent experts or consultants for its assistance, see Pascack Ass’n v. Washington Tp., 131 N. J. Super. 195 (Law Div. 1974); cf. Handleman v. Marwen Stores Corp., 53 N. J. 404 (1969); Polulich v. J. G. Schmidt Tool Die & Stamping Co., 46 N. J. Super. 135 (Cty. Ct. 1957); Manual for Complex Litigation, Pt. 1 §§ 1.42, 1.46, 2.60, 3.40 (1973), or to invite participation by the Department of Community Affairs as amicus curiae.

Since conflicting decisions within a given region would be highly undesirable, all municipalities in the region should be joined as parties at the earliest practical point in the proceedings, if not at the instance of one of the parties, then on the motion of the court. R. 4:28-1, 4:30.

*217The trial court must be flexible aud imaginative in molding remedies to fit the facts of each case, balancing the need to vindicate the rights of persons who have been or will be deprived of the opportunity for decent housing if no relief is granted against the principle of local decision-making in land use planning matters. Pascack Ass’n v. Washington Tp., supra; see e. g., Kennedy Park Homes Ass’n v. Lackawanna, 318 F. Supp. 669 (W. D. N. Y. 1970) aff’d 436 F. 2d 108 (2 Cir. 1970) cert. den. 401 U. S. 1010, 91 S. Ct. 1256, 28 L. Ed. 2d 546 (1971); Mahaley v. Cuyahoga Metropolitan Housing Authority, 355 F. Supp. 1257 (N. D. Ohio 1973) rev'd on other grounds, 500 F. 2d 1087 (6 Cir. 1974), cert. denied 419 U. S. 1108, 95 S. Ct. 781, 42 L. Ed. 2d 805 (1975); United Farmworkers of Florida Housing Projects, Inc. v. Delray Beach, 493 F. 2d 799 (5 Cir. 1974); Lakewood Homes, Inc. v. Lima Bd. of Adjustment, 23 Ohio Misc. 211, 52 Ohio Op. 2d 213, 258 N. E. 2d 470 (Ohio Ct. C. P. 1970); mod. 25 Ohio App. 2d 125, 267 N. E. 2d 595 (Ohio Ct. App. 1971).

Ill

It can hardly be denied that there are some suburban municipalities which have already developed in an exclusionary mold. These communities, which have benefited from regional development, have, by their land use controls, contributed to the regional housing shortages. Cf. United States v. Black Jack, 372 F. Supp. 319 (E. D. Mo. 1974). It would be both highly inequitable to absolve them of any responsibility for solving those problems and inconsistent with the legal analysis developed by the Court today. Although the majority does not reach this issue in the present case, I would hold that developed suburban municipalities which have availed themselves of the land use controls permitted by statute and which have not provided sufficient opportunities for development of low and moderate income housing to meet their fair share of regional needs, have both *218a negative obligation not to use zoning and subdivision controls to obstruct the construction of such housing and an affirmative duty to plan and provide for such housing, insofar as these obligations can be carried out without grossly disturbing existing neighborhoods. It is, of course, neither practical nor wise to demand that such communities completely rezone established neighborhoods; to do so would in all likelihood contribute to neighborhood instability and permit certain property owners and developers to obtain windfalls rather than actually effecting construction of low or moderate income housing.

Occasions, however, arise in every community when land becomes available for development or redevelopment. It is on these occasions that these obligations come into play most strongly. Thus the existence of an unmet regional need for low and moderate income housing in appropriate cases must be given great weight in considering applications for variances under N. J. S. A. 40:55-39(d) to permit the construction of such housing. De Simone v. Greater Englewood Housing Corp. No. 1, 56 N. J. 428 (1970); Brunelti v. Madison Tp., 130 N. J. Super. 164 (Law Div. 1974).

The discussion above of judicial enforcement applies equally to developed suburban communities, save only that in formulating relief the trial judge must be alert to take into consideration the delicacy and difficulty of altering the character of already developed areas.

IV

Substantial portions of New Jersey are neither experiencing a surge of development nor situated in the imminently foreseeable path of development. These include much of Cape May, Cumberland, and Salem Counties, portions of Atlantic, Ocean, Sussex and Warren Counties, and some rural areas in other parts of the State. In these municipalities, it is not meaningful to speak of failure to meet regional housing needs, not because there are no persons who are inadequately *219housed,18 but because it is not yet meaningful to speak of “regional” needs nor is it clear that land use controls play a significant role in the housing shortage at the present time. Nevertheless, the time may well come when the frontiers of suburbia will reach these areas. Municipalities may not act to deter the future development of a diversified housing stock by establishing land use controls which are inherently exclusionary and which bear no substantial relationship to any legitimate zoning purpose.

Without purporting to exhaust the list of zoning devices which are presumptively objectionable, I would note that minimum house size requirements which bear no substantial relationship to health needs 19 and requirements as to the minimum or maximum number of bedrooms which a dwelling unit may contain, cf. Molino v. Glassboro, 116 N. J. Super. 195 (Law Div. 1971), are presumptively invalid. Zoning for excessively large lots and large frontages presents more difficult analytic problems, cf. Steel Hill Development, Inc. v. Sanbornton, 469 F. 2d 956 (1 Cir. 1972), but excessive mapping for such lots is, absent extraordinary environmental factors, also presumptively invalid. Cf. Williams & Norman, supra at 496-97.

These obligations, too, are judicially enforceable, albeit without need for the more elaborate procedures appropriate for litigation concerning developing and developed areas which are discussed above.

*220Y

The problems we begin to face today are of awesome magnitude and importance, both for New Jersey and for the nation as a whole. It will not do to approach them gingerly; they call out for forceful and decisive judicial action.

The flow of low and moderate income persons is toward urban areas, hut the cities have neither the space nor the resources to house these people. The question is whether the suburbs will act to accommodate this growth in an orderly way or will simply and blindly resist. Two well-entrenched zoning objectives, low density land use and favorable fiscal balance, though sometimes at odds with each other, have on the whole cooperated to create a milieu of discriminatory zoning which threatens to make the next 30 years of suburban growth a disaster.

The shape of the possible disaster can now be foreseen. The inevitable alternative to assumption by suburban communities of an obligation to provide for their fair share of regional housing needs is an increase in the size of slums with all their attendant miseries. The consequences of such economic, social, and racial segregation are too familiar to need recital here. See Nat'l Advisory Comm’n on Civil Disorders, Report (1968). Justice must be blind to both race and income.

It is not the business of this Court or any member of it to instruct the municipalities of the State of New Jersey on the good life. Fevertiheless, I cannot help but note that many suburban communities have accepted at face value the traditional canard whispered by the “blockbuster”: “When low income families move into your neighborhood, it will cease being a decent place to live.” But as there is no difference between the love of low income mothers and fathers and those of high income for their children, so there is no difference between the desire for a decent community felt by one group and that felt by the other. Many low income families have learned from necessity the desirability of community involve*221ment and improvement. At least as well as persons with higher incomes, they have learned that one cannot simply leave the fate of the community in the hands of the government, that things do not run themselves, but simply run down.

Equally important, many suburban communities have failed to learn the lesson of cultural pluralism. A homogeneous community, one exhibiting almost total similarities of taste, habit, custom and behavior is culturally dead, aside from being downright boring. New and different life styles, habits and customs are the lifeblood of America. They are its strength, its growth force. Just as diversity strengthens and enriches the country as a whole, so will it strengthen and enrich a suburban community. Like animal species that over-specialize and breed out diversity and so perish in the course of evolution, communities, too, need racial, cultural, social and economic diversity to cope with our rapidly changing times.

Einally, many suburban communities have failed to recognize to whom the environment actually belongs. By environment, I mean not just land or housing, but air and water, flowers and green trees. There is a real sense in which clean air belongs to everyone, a sense in which green trees and flowers are everyone’s right to see and smell. The right to enjoy these is connected to a citizen’s right to life, to pursue his own happiness as he sees fit provided his pursuit does not infringe another’s rights.

The people of New Jersey should welcome the result reached by the Court in this case, not merely because it is required by our laws, but, more fundamentally, because the result is right and true to the highest American ideals.

Mountain and P ashman, JJ., concurring in the result.

For modification — Chief Justice Hughes and Justices Jacobs, Hall, Mountain, Sullivan, Pashman and Clifford — 7.

Opposed — None.