Unmistakable Marks: The Extent of the Easement
One of the most difficult problems facing the surveyor is determining the width of an easement. The description in the controlling document may be vague and uncertain. Even where a specific width is noted, the controlling documents may lack detail regarding the location of the servitude. State statutes and common law may provide additional guidance on the correct method for locating the easement on the ground.
Consider the following court decisions from two different jurisdictions. In both states, the source description includes a specific width for a driveway easement. However, the judges presiding over these disputes handed down very different decisions.
The Maryland ruling, Miller v. Kirkpatrick,1 represents the culmination of heated disagreements between the parties over easement rights. This ruling considers a 20-foot easement created by express terms in the controlling document. When Kirkpatrick built “spite fences” parallel with the driving surface in an apparent attempt to limit the easement to a 12-foot strip, Miller filed suit.
The court concluded that the full width of the easement must remain available for the easement holder. Kirkpatrick argued that the rights of ingress and egress were not violated by the fences. Judge Harrell concluded that a test of “reasonableness” was improper in this circumstance. He notes: … the grant of a right to use a piece of property includes “the last inch as well as the first inch” and a fence or obstruction placed upon it by the servient tenement is an invasion of the dominant tenement’s rights... Allowing Kirkpatrick to unilaterally narrow the easement from 20 feet to 12 feet constituted an additional restriction of the easement not contemplated in the original agreement.
The New York courts have taken a different approach in several recent rulings where easements of specific width were described in record documents. Minogue v. Kaufman 2 is representative of the stance taken by the New York courts. This case seems similar to the Maryland ruling above, but provides a very different outcome.
A deed recorded in 1980 clearly described a 30-foot right of way for ingress and egress. Affirming the lower court decision, the judge observes: An easement of way confers the lawful right to use the surface of property owned by another for unobstructed passage, with the right to enter upon said property and prepare it for that purpose, together with such other incidental rights as are necessary to the enjoyment of the right of passage … Where the grantor expressly states that the creation of an easement is to provide a right-of-way for ingress to and egress from the grantee’s property, then the grantee may only use the easement in such manner as is reasonably necessary and convenient for that purpose.
The New York court considers the elements of the legal description and places greater emphasis on the phrase “ingress and egress” than on the dimension noted in the record document that first describes the servitude. The claimant is restricted to a 12-foot strip of land over the existing driveway because it is considered sufficient for access.
An important difference between the New York and Maryland rulings is the nature of the underlying dispute. In the Maryland decision, the servient owner was actively attempting to restrict access. By contrast, the New York decision focused on attempts by the easement holder to landscape the entire 30-foot strip regardless of the underlying rights of the servient landowner.
In the 2003 decision, Lucas v. Kandis,3 the New York court emphasizes the difference between obstruction of the easement by the servient landowner and the legitimate use of the easement area in a manner that does not adversely affect the rights associated with the easement. The servitude in dispute served 11 parcels and the dispute was sparked by a fence that intruded 2 feet into the easement area. This brief ruling questions whether the rather minor intrusion is sufficient to be a material obstruction to the easement rights. This case was remanded to lower court for further study of the issue.
Statutes Can Be Tricky
Many disputes over the extent of public roads can be traced back to improper application of state statutes. Bren v. Eardensohn 4 recognizes that Vermont Statute 19 V.S.A. § 32 (formerly 19 V.S.A. § 36) was originally intended as an: …evidentiary method of proving the boundaries of a public highway otherwise incapable of ascertainment from public records. One key to proper application of this statute requires the existence of a road with no controlling evidence describing the extent or location of the way. This statute may be considered a “last resort” for courts when extensive research fails to provide answers.
One surprising aspect of this case is that it does not involve an ancient road. The relevant portion of Town Highway 55 was originally laid out by surveyor John Roth in 1963. In the case at bar, Eardensohn argued that the present road location buttressed by the statute provided the only available means to locate the disputed road. Bren argued for a location as shown on the Roth survey.
Evidence presented to the court demonstrated that the road had shifted slightly from its original location but was still well within the easement as originally laid out. No records supporting later re-location of the road were presented. The court concludes that the defendants’ argument for application of the statute is based on confusion over the intent of the law.
The statute presumes a three-rod road centered on the existing driving surface where no contrary evidence is presented. However, this law creates a rebuttable presumption that will not stand against legitimate evidence of the original location of the servitude.
Regarding the effect of the relevant statute, the court concludes: Notwithstanding § 32, a migrating centerline without a new dedication does not alter the scope of the established easement. The implied dedication issue (method of creation) and the § 32 width issue (location of road boundaries) are separate issues; § 32 cannot be turned into a device that automatically moves an easement.4 The court dismissively refers to the misapplication of the statute as the “rolling easement” theory and notes that this interpretation would destabilize property rights adjacent to roads. The statute was intended to stabilize the location of an unascertainable easement, not create a new one.
The New Mexico courts discuss a similar problem related to a rebuttable presumption based on statute. State v. UU Bar Ranch 5 hinges on the construction of a gate in 1997. This blocked a road that had been used by the public for 150 years. Previous decisions had already concluded that the state held title to the road bed but failed to clarify the “amorphous nature” of the actual road location.
While this ruling addresses many complex issues, their statements regarding the width of the prescriptive easement are succinct. Both lower court rulings considered physical evidence of the road as the controlling issue. Both determined that the road was 24 feet wide based on the extent of possession. The state claimed that the ruling should have described a 60-foot road based on New Mexico statutory law.
Counsel for the state argued that NMSA 67-5-2 controlled the width of all public roads in New Mexico unless specific orders by county commissioners made some other provision. The statute includes this statement: “All public highways laid out in this state shall be 60 feet in width unless otherwise ordered by the board of county commissioners.”
The problem with this argument is that prescriptive easements are created by continuous public use rather than by a vote of county governments.
The court disagreed with the states’ assessment: “It bases this argument on a misreading of NMSA 1978, § 67-5-2 (1903). Because that statute does not apply to the road in question, we affirm the district court’s determination on remand that the Road is 24 feet wide….the Court of Appeals held that a road established by public use is not “laid out” within the meaning of Section 67-5-2.” 5
Prescriptive Easements for Maintenance
Courts nationwide generally define the location and extent of prescriptive easements based on use. As seen in the example above, the resulting easement width may seem entirely arbitrary. In addition to the driving or walking surface itself, some courts may consider an incidental right of maintenance to allow the continued existence of filled areas, culverts or bridges that enhance the utility of the way.
Montana statute reinforces general common-law standards that determine the extent of prescriptive rights based on actual use. However, in the case of public roads created by prescription, additional rights are also recognized. Public Lands Access Association v. Madison County 6 is a recent decision that highlights this concept: When a county road is established, the public acquires the right-of-way “and the incidents necessary to enjoying and maintaining it.” Section 7-14-2107(3), MCA. We previously have observed that Montana statutes “clarify that a public highway consists of more than the surface of a roadway,” and is not “limited to the driving surface.” … Our case law is also clear that the establishment of a public road by prescriptive use contemplates the general public’s use of the roadway as well as the land needed for construction, repairs and maintenance. We do not separate the different uses to create two distinct interests-a public road for travel and a secondary easement for the County’s maintenance-as the District Court did. Rather, we recognize one public road right-of-way. The Montana court highlights a refinement rather than a basic change to prescriptive easement law. The extent of the right created is defined by all relevant use that contributes to the creation of the servitude, including construction and grading.
Determining the extent of an easement can certainly be a difficult task. Without a clear understanding of the relevant statutes and common law, land use professionals run the risk of unwittingly trampling legitimate rights of private owners or of the public. Easements — erroneously — have been considered the “poor relation” when placed next to the more obvious problem of determining boundaries of fee-simple tracts of land. The increased frequency of litigation over access rights in recent years underscores the fallacy of this assumption and the importance of these often-ignored property rights.
List of Sources:
- Miller v. Kirkpatrick: 833 A.2d 536 (2003)
- Minogue v. Kaufman: 124 A.D.2d 791; 508 N.Y.S.2d 511 (1986)
- Lucas v. Kandis: 303 A.D.2d 649; 757 N.Y.S.2d 86 (2003)
- Bren v. Eardensohn: Vt. Super. No. 320-5-05 (2007)
- State v. UU Bar Ranch: 145 N.M. 769 (2009)
- Public Lands Access Association v. Madison County: 373 Mont. 277; 321 P.3d 38 (2014)
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source is an attorney admitted to the bar in your jurisdiction.