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 Easements Relating to Land Surveying and Title Examination 3 Contents 7 Preface 11 Acknowledgments 15 Chapter 1 Introduction 19 Rights and Interests in Land; Transfer of Ownership 19 Ownership in General 19 Transfer of Title and Property Rights 21 Means of Transferring or Obtaining Title or Rights in Land 21 Corporeal and Incorporeal Hereditaments 25 Chapter 2 Easements in General 26 Definition: What Is an Easement? 26 Identical with Servitude 27 Different from License 28 Different from Profit 28 Differing from Fee 28 Illustrative Case 34 Illustrative Decision 36 Canals 37 Easement Terminology 38 Dominant and Servient Ownership 38 Appurtenant Easements vs. Easements in Gross 39 Determining Whether an Easement Is Appurtenant or in Gross 40 Affirmative as Opposed to Negative 40 Apparent vs. Nonapparent 41 Continuous vs. Noncontinuous 42 Perpetual vs. Temporary 42 Public or Private Easements 43 Intermittent Easements 43 Quasi-Easements 45 Reciprocal Negative Easements 45 Secondary Easements 45 Easement by Substitution 46 Chapter 3 Types of Easements 47 Right of Way 47 Right of Way Line 49 Highways 50 Private Roads 51 Private Use of Water 54 Energy Easements 57 Chapter 4 Creation of Easements 63 Express Grant 64 Reservation or Exception 67 Agreement or Covenant 69 Implication 69 Ways of Necessity 74 Rationale of the Court System 75 Paper Streets 77 Strict Necessity 79 Implication vs. Necessity 80 Estoppel 80 Prescription 81 Public Highway by Prescription 84 Dedication 85 Private Dedication 87 Ancient Rights 88 Eminent Domain 90 Private Condemnation 91 Custom 92 Public Trust Easements 98 Vote of a Governing Body 100 Extent and Scope of Easements 101 Chapter 5 Termination of Easements 103 Expiration 103 Release 104 Merger of Title 105 Abandonment 105 Right to Abandon Location 107 Estoppel 108 Prescription or Adverse Possession 108 Destruction of the Servient Estate 109 Cessation of Necessity 110 Eminent Domain 110 Frustration of Purpose 110 Cessation of Purpose 111 Overburden 112 Chapter 6 Easements and Descriptions 114 General 114 Void Instruments 118 Interpretation 120 Intent 120 Compilation 123 Chapter 7 Problem Easements 126 Undescribed Easements, Blanket Easements 126 Locating an Undefined Easement 127 Hidden Easements 128 Rolling Easements 129 Shore Road Allowances in Canada 132 The New Zealand Example 133 Chapter 8 The Process of Reversion 135 Estate in Reversion 135 Possibility of Reverter 135 Chapter 9 Reversion of Easements 140 Highways 142 Flowage 142 Railroads 143 Chapter 10 Reversion Relating to Highways: (and to Other Types of Rights of Way) 145 Discontinuance or Abandonment 146 Actual Highway Abandonment 146 Procedure 147 Presumption of Law 149 Overcoming the Presumption 153 Grantor Doesn’t Own It, or Part of It 154 Intent of the Parties to the Transaction 154 Language Excludes Street 155 Abandonment, Strictly Speaking 155 Railroads 155 Road Reserves 155 Chapter 11 Rules of Locating and Defining Reversions 158 Basic Rule 159 Curved Street 160 Street Intersection 160 Ownership at Intersection with Reversion Only at One Street 161 Curved Street Intersection 162 Lots at an Angle Point in the Road 162 Lots Adjoining a Subdivision Boundary 163 Marginal Road 164 Special Cases 164 Problem Cases 165 Documents Indefinite or Not Available 168 Summary of Procedure for Determining Reversion Rights in Vacated Highways 169 Chapter 12 Easements and the Land Surveyor 171 ALTA/ACSM Standards 171 Right of Way as Boundary Line 172 Retracement of Right of Way Line 172 Retractment of Original Survey of Highway 173 Easement Plans Are Land Surveys 173 Liability of the Land Surveyor 174 Easements Are Similar to Other Land 174 Chapter 13 Easements and the Title Examiner (or Records Researcher) 175 Items outside the Period of Search 175 Items Not on the Public Record at the Court House 175 Items to Be Shown by an Accurate Survey 176 Implied Dedication and/or Acceptance 176 What Insurance Does not Cover 176 Liability of the Title Examiner 180 Chapter 14 Case Studies 182 Case #1 Who Owns the Road? 182 Case #2 Who Owns the Land? 186 Case #3 How Much Research Is Necessary? 188 Case #4 How Wide Is the Right of Way? 191 Case #5 When Does a Road Become Not a Road? 197 Case #6 Presumption of Ownership to Centerline Overcome 200 Case #7 Right of way created by estoppel 205 Case #8 The Marginal Road, a Special Case 209 Case #9 Road Constructed outside of Layout 212 On Exceptions 212 Case #10 Reversion of a Cemetery Lot 214 Case #11 Determining Title to Land Parcel When a Road Is Relocated 223 I. Factual and Procedural History 224 II. Standard of Review 225 III. Discussion 226 IV. Conclusion 231 Notes 231 Case #12 Easement by Agreement Resulting in Cessation of Necessity 232 Standard of Review 233 Analysis 233 In Conclusion 235 Note 235 Case #13 Road Shown on Subdivision Plat Not a Public Way 236 I. Nature of the Case 236 II. Factual and Procedural Background 236 III. Issues on Appeal 237 IV. Standard of Review 237 V. Analysis 237 VI. Conclusion 242 Notes 242 Case #14 Railroad as Abutter not Receiving One-Half of Vacated Highway 243 Standard of Review 246 Determinative Issues 246 Original Location of Tracts 247 Vacated Road 248 Case #15 Overburdening an Easement Causing Its Termination 249 Barbara Milano Keenan, Justice 249 Note 256 Case #16 Major Expansion of Development Not Causing an Overburden 256 Notes 260 Case #17 Proprietor’s Way 260 1. Background 261 2. The Origin of the Easement 261 3. The Land Court Decision 261 4. The Plaintiffs’ Appeal 262 Notes 265 Case #18 Easement by Custom 267 Notes 274 REFERENCES 277 For Further Reference 278 Glossary 282 Index 299 Content: 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 Abstract: The most up-to-date guide to easements and reversions written specifically for the land surveyor, Easements Relating to Title Examination and Land Surveying succinctly and incisively covers easements and reversions, written specifically for the land surveyor. 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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

Easements are special rights that affect many parcels of land. The definition, use, defense, and retirement of easements is an area of active work for land surveyors, lawyers, and the holders and buyers of easements such as utility companies and highway departments. This book is the most up-to-date guide that succinctly and incisively covers easements and reversions, written specifically for the land surveyor. Covering the various forms of easements, their creation, reversion, and termination, the book includes numerous case studies offering examples of situations where such easements resulted in litigation and how the cases were decided by the courts. The book includes coverage of undescribed easements and how to properly write new easements.