How have courts dealt with the issue of an easement that is not an actual easement?

6 Of particular interest, because it is the mirror image of this case is Jarvis v. Singleton (1933) 129 Cal.App. 250, 18 P.2d 382. In that case there was a path across the land which the plaintiff was purchasing from the defendant. The defendant told plaintiff that "it was nothing but a path that people took liberty to take and travel over . . . (plaintiff) could just go ahead and plow it up . . ." It later turned out that plaintiff's neighbors had used the path adversely for many years and that an easement by prescription had arisen. In Jarvis nobody even thought of torturing the defendant's representation into a promise to convey a fee unburdened by an easement and, as such, coming within the statute of frauds.