Easements Relating to Land Surveying and Title Examination

CONCISE, IN-DEPTH COVERAGE OF THE COMPLEX ISSUES OF EASEMENTS AND THEIR REVERSION

The definition, use, defense, and retirement of easements are areas of active work for land surveyors, lawyers, and the holders and buyers of easements, such as utility companies and highway departments. Easements Relating to Land Surveying and Title Examination is the most up-to-date reference that succinctly and incisively covers easements and reversions, written for land surveyors and title examiners.

This comprehensive guide covers the various forms of easements, their creation, reversion, and termination. Its numerous case studies offer examples of situations in which easements resulted in litigation and reveal how these cases were decided by the courts. The book also includes coverage of undescribed easements and guidance on how to properly write new easement descriptions.

This useful, practical handbook:

• Defines easements and easement terminology
• Covers both right-of-way and right-of-way line easements
• Explains the creation of easements by express grant, reservation or exception, agreement or covenant, implication, estoppel, custom, and more
• Explores all types of easement termination, including expiration, release, merger of title, abandonment, prescription or adverse possession, and many others
• Provides thorough descriptions of problem easements, from undescribed and blanket easements to hidden and rolling easements
• Offers extensive coverage of reversion of easements, including highway-related reversions and rules for locating and defining reversions
• Presents detailed information for land surveyors and title examiners on how to handle these easement issues

Preface ix

Acknowledgments xiii

1 – Introduction 1

Rights and Interests in Land; Transfer of Ownership 1

Means of Transferring or Obtaining Title or Rights in Land 3

2 – Easements in General 8

Definition: What is an Easement? 8

Easement Terminology 20

Intermittent Easements 25

3 – Types of Easements 29

Right of Way 29

Right of Way Line 31

4 – Creation of Easements 45

Express Grant 46

Reservation or Exception 49

Agreement or Covenant 51

Implication 51

Estoppel 62

Prescription 63

Eminent Domain 72

Custom 74

Vote of a Governing Body 82

5 – Termination of Easements 85

Expiration 85

Release 86

Merger of Title 87

Abandonment 87

Estoppel 90

Prescription or Adverse Possession 90

Destruction of the Servient Estate 91

Cessation of Necessity 92

Eminent Domain 92

Frustration of Purpose 92

Overburden 94

6 – Easements and Descriptions 96

General 96

Void Instruments 100

Interpretation 102

Compilation 105

7 – Problem Easements 108

Undescribed Easements, Blanket Easements 108

Locating an Undefined Easement 109

Hidden Easements 110

Rolling Easements 111

Shore Road Allowances in Canada 114

The New Zealand Example 115

8 – The Process of Reversion 117

Estate in Reversion 117

Possibility of Reverter 117

9 – Reversion of Easements 122

Highways 124

Flowage 124

Railroads 125

10 – Reversion Relating to Highways (and to Other Types of Rights of Way) 127

Discontinuance or Abandonment 128

Actual Highway Abandonment 128

Procedure 129

Presumption of Law 131

Overcoming the Presumption 135

Abandonment, Strictly Speaking 137

11 – Rules of Locating and Defining Reversions 140

Basic Rule 141

Curved Street 142

Street Intersection 142

Ownership at Intersection with Reversion Only at One Street 143

Curved Street Intersection 144

Lots at an Angle Point in the Road 144

Lots Adjoining a Subdivision Boundary 145

Marginal Road 146

Special Cases 146

Problem Cases 147

Documents Indefinite or Not Available 150

Summary of Procedure for Determining Reversion Rights in Vacated Highways 151

12 – Easements and the Land Surveyor 153

ALTA/ACSM Standards 153

Right of Way as Boundary Line 154

Retracement of Right of Way Line 154

Retractment of Original Survey of Highway 155

Easement Plans are Land Surveys 155

Liability of the Land Surveyor 156

Easements are Similar to Other Land 156

13 – Easements and the Title Examiner (or Records Researcher) 157

Items Outside the Period of Search 157

Items Not on the Public Record at the Court House 157

Items to Be Shown by an Accurate Survey 158

Implied Dedication and/or Acceptance 158

What Insurance Does Not Cover 158

Liability of the Title Examiner 162

14 – Case Studies 164

Case #1 Who Owns the Road? 164

Case #2 Who Owns the Land? 168

Case #3 How Much Research is Necessary? 170

Case #4 How Wide is the Right of Way? 173

Case #5 When Does a Road Become Not a Road? 179

Case #6: Presumption of Ownership to Centerline Overcome 182

Case #7 Right of Way Created by Estoppel 187

Case #8 The Marginal Road, a Special Case 191

Case #9 Road Constructed Outside of Layout 194

Case #10 Reversion of a Cemetery Lot 196

Case #11 Determining Title to Land Parcel When a Road is Relocated 205

Case #12 Easement by Agreement Resulting in Cessation of Necessity 214

Case #13 Road Shown on Subdivision Plat Not a Public Way 218

Case #14 Railroad as Abutter Not Receiving One-Half of Vacated Highway 225

Case #15 Overburdening an Easement Causing Its Termination 231

Case #16 Major Expansion of Development Not Causing an Overburden 238

Case #17 Proprietor’s Way 242

Case #18 Easement by Custom 249

References 259

For Further Reference 260

Glossary 264

Index 281

DONALD A. WILSON is the President of Land & Boundary Consultants, Inc., in Newfields, New Hampshire.