The Surveyor and the Law

October 18, 2000
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The importance of easement descriptions.

Easements seem designed to cause trouble. Any time you create a property right that is something less than full title yet more than mere permission to use someone’s land for a limited purpose you are inviting conflict. Suppose you own a parcel outright. You can do pretty much what you want on it as long as it doesn’t violate the general laws of your area. If you transfer it to someone else, they assimilate your rights to use that piece of land. The transferring document need not spell out the grantee’s rights, and if no limitations are placed on the estate, the document will be presumed to transfer every right the grantor “owned” respecting the land. There is no difficulty interpreting the grantee’s rights in his or her newly acquired property because they are specified by law.

An easement, on the other hand, is a limited but perpetual right to use another person’s land. An easement is not a contract for it is not personal to the grantee; yet it has many qualities of a contract because a person obtains an easement to do something that has value and pays a consideration for the privilege. An easement is not a license for it doesn’t expire; yet it can be lost through misuse, overburdening, abandonment, adverse possession or a formal relinquishment. An easement is a property right, in that its benefits run to future owners of the property served by the easement (usually called the “dominant estate”), and future owners of the land burdened by the easement (called the “servient estate”) cannot unilaterally prevent the easement’s use by successors to the grantee.

If a person paints your house, you might pay him by letting him catch a fish dinner in your pond. That is a contract, and there is little likelihood that a person who buys the painter’s house will show up at your house [replaces pond] next year to demand a chance to fish in your pond and possibly sue you if you haven’t kept it stocked. If you allow people to come on to your land to view a sporting event, their right to be there (which may or may not be supported by consideration) is understood to terminate at the end of the specified event. That is one form of license, which is somewhat more temporary than an easement. Both arrangements are similar to letting your brother-in-law take up residence on your living room sofa while he looks for a job; they can lead to trouble, but the parties are limited and the time that misunderstandings might occur is relatively short.

With an easement, however, that brother-in-law obtains a perpetual right to use the sofa, and he can pass the right to someone you have never met. You might not give a second thought to your neighbor driving his tractor across your field because you and he are friends, and you know your field is a convenient route from the highway to his lower forty. But will you feel the same after your neighbor dies and his estate develops the forty and demands the right to cross your field with a commercial access to a multiplex theater? Or will you feel the same when you decide to sell your field and the buyer demands that you close that tractor road before closing the deal? Easements are convenient and valuable because they are permanent and limited, but those qualities are exactly what make easements troublesome. [pull quote]

A lease is similar to an easement in that it allows a person who doesn’t own your land outright to use it, but is different in that it contains the terms of its own extinguishment. Look at a commercial lease and notice how carefully the rights it grants are enumerated. Now, randomly take an easement document out of one of your job files and look at it—odds are the easement will be carelessly written. People tend to be cautious when drafting a lease because it involves the periodic payment of money and grants someone the right to occupy the land. People tend to get careless when drafting an easement because the limited use of a corner of another’s land seems fine at the moment as long as it does not create a nuisance for the owner. Yet easements deserve at least as much respect in drafting as leases. You cannot “raise the rent” or evict an easement holder if you later change your mind.

Many of the problems with easements come from unclear terms concerning the rights granted and the responsibilities for maintenance. For surveyors, however, problem legal descriptions take the forefront. Ideally, an easement should have three legal descriptions: one of the entire dominant estate that is benefited by the easement, another of the entire servient estate that is burdened, and a third of the easement itself. [pull quote] Having all three helps prevent future questions about the extent of the property that can use the easement in the future, helps clear up questions of the obligations of portions of the servient property if it is subdivided and, of course, helps locate the strip of land where the activity takes place. People seldom reach the ideal, and indeed easement legal descriptions are often so poorly drafted that they do not create a property right at all.

The Cases Berg v. Ting1

The Ting property lies northeast of and adjacent to the Berg property. The Tings purchased their lot from the Cahills. When Cahill owned the land, the next parcel to the northeast was owned by the Hansons, who had contracted to sell their land to the Youngs. The Cahills and Youngs entered into a joint agreement to subdivide their parcels into seven lots. This activity, in the city of Seattle, required a number of public hearings for various permits.

The Bergs publicly opposed the subdivision through letters and appearances at public hearings. In order to mollify the Bergs, the Youngs and Cahills offered to grant Berg an easement along the subdivision driveway. Berg accepted and withdrew his opposition.

The legal description on the easement document, signed by Cahill and Young, read as follows:

Tract A: The area designated as the private driveway across Lots A, B, C, and F, the exact location of which shall be determined by reference to the conditionally granted Application when the same is finally approved and recorded; and

Tract B: That portion of lots F and G of the Short Subdivision applied for under the Application as the same is finally approved and recorded situated between the private driveway referred to in Tract A above and the shore of Lake Washington, the upland boundary of which portion shall be a line commencing at the northwest corner of Lot G and running southerly to the point of intersection with the southerly boundary of the private driveway referred to in Tract A above, thence westerly 50 feet along the southerly boundary of said private driveway, thence southerly, in a line parallel to the westerly boundary of Lot G, to the southerly boundary of Lot F2.

The document also contained the complete legal descriptions of the Berg, Cahill (Ting) and Hanson (Young) properties. The easement was recorded in 1984. The Youngs allowed their contract to expire, and Hanson never signed the easement document. The Tings bought the Cahill property while the subdivision approval was still pending, with the Cahills saying nothing about the Berg easement in the deed they granted to Ting. The short subdivision was approved in 1988 with six lots that had been reconfigured from the original seven-lot layout. Shortly after the subdivision was recorded, Berg attempted to open the easement across the Ting parcel, but Ting refused, leading to this lawsuit.

The issue was whether or not a valid easement, enforceable against Ting, had been created by the document signed by Cahill. In order to create such a property right, there must be a conveyance within the definition of the statute of frauds.

To comply with the statute of frauds, “a contract or deed for the conveyance of land must contain a description of the land sufficiently definite to locate it without recourse to oral testimony, or else it must contain a reference to another instrument which does contain a sufficient description.”... However, in the case of an easement, a “deed [of easement] is not required to establish the actual location of an easement, but is required to convey an easement which encumbrances a specific servient estate”... The servient estate must be sufficiently described3.

The court held the legal description did not sufficiently describe the servient estate because it depended on a reference to a document “as it is finally approved and recorded” and consequently, that did not exist at the time of the grant. The servient estate was defined by certain lots that were named but could not be located until the final subdivision was to be approved some time in the future. The Bergs, however, argued that the document created a “floating” easement because the entire Cahill estate was described in the deed. They analogized the description to the type of deed common to railroad easements, where the grant might be for a strip of land to be surveyed across a section some time in the future after the route is designed and approved. The court did not accept this argument because the document clearly intended that not all of the Cahill property was to be encumbered. This “easement” was intended to be tied down to a small portion of the Cahill property, but the document did not say exactly where that portion was. Indeed, the court stated that this easement might have been valid had it merely referred to a strip of land, somewhere across any portion of the Cahill parcel, to be located and surveyed at a later date4.

The Bergs then argued that the court should reform the legal description to match the strip of land as it would lie in reference to the lots on the finally approved short subdivision plat. Reformation of a conveyance, however, is only available when there is a mistake mutually made by the parties. [pull quote]There was no mistake evident in this document; it was merely an attempt to create an easement before the parties knew where it would go. Finally, the Bergs argued that the document should be enforced despite its deficiencies under the doctrine that the statute of frauds will not be used to defeat an agreement that can be proven by the performance of the parties. The problem with that argument, however, was that the Bergs themselves had not performed. They had given consideration, in that they had withdrawn their opposition to the short subdivision in return for the promised easement, but that is not enough. The court held that the performance doctrine exists to allow evidence of the actual terms of the agreement, from the parties’ actions, to replace the evidence inherent in a properly written conveyance.5 Here, the Bergs offered evidence that an agreement existed, but not of the terms. In order to show by actions the term that was missing, the Bergs would have had to have opened the easement in some definite location before the Tings took possession of the property. The result of all was not only did the Bergs not get their easement, but they were ordered to pay the Tings’ attorney fees.

Wilhelm v. Beyersdorf6

In 1969, Ms. Wilhelm and her husband, Charles Dorsey, purchased 40 acres of landlocked land in Spokane County, Washington. In 1970, they negotiated access to their property by way of an easement across land owned by Featherman. Here is the description of the easement:

The easement and right-of-way hereby granted covers a strip of land 40 feet in width across the above described land, or 20 feet on each side of a center line, together with such additional widths as are necessary to provide for cuts, fills, turnouts, and for curves at angle points, beginning at a point approximately 200 feet South of the Northeast corner of the hereinabove described grantors’ parcel, and the road is to go westerly, thence south, thence Westerly to foot or exit of gully; also existing road commencing from Northwest corner of grantors’ property; thence southerly to exit of gully previously described; thence south across gully on west line of parcel being an existing road; thence South across gully, thence West and exit on West line of parcel. Configuration of topography plus existence of old logging road fixes the location of the easement herein.

The easement document included a description of the entire Featherman parcel. Dorsey decided not to pay for a survey and accepted the easement as written, against the advice of his attorney. Dorsey improved a logging road beginning at the northwest corner of the Featherman parcel that continued to his land. The family used the route from about 1970. In 1976, the couple divorced, and Ms. Wilhelm was awarded the property.

Ms. Wilhelm recorded the easement document in 1977 and about a week later, sold 10 acres of her parcel to the Kordashes, granting them the right to use the 1970 easement. The Kordashes then began using the logging road. In 1993, the Beyersdorfs purchased a portion of the Featherman land consisting of a parcel approximately centered on the west line of the Featherman property. The Beyersdorfs’ title report listed the Wilhelm easement as an exception but stated that it could not be located from the record. The Beyersdorfs’ real estate broker assured them that there were no easements on the portion of the Featherman property they were buying. When they inspected the property they saw what they described as an old, unimproved and apparently unused, logging road running through dense woods.

By 1995, Ms. Willhelm had moved from the property, but her daughter still lived there. One day she was driving up the logging road on the Beyersdorfs’ property and confronted a contractor who had blocked the road to drill a well and build the Beyersdorfs’ house. The daughter got the contractor to move the well off to one side and repair the road, but did not make contact with the Beyersdorfs.

In 1995, Ms. Willhelm filed a lawsuit to declare her rights to the easement. As part of the suit, she hired a surveyor who mapped out the existing road. The surveyor described the location of the easement as pointed out by Ms. Wilhelm, noting that “The description in the Featherman easement may or may not conform to the physical location of the road easement on the ground. The Featherman easement description was ambiguous.”

The Beyersdorfs argued that the Featherman-Dorsey document did not create an enforceable easement because its legal description was inadequate. The court disagreed:

Every conveyance of real estate and any interest or encumbrance on real estate must be by written deed, signed and acknowledged.... The statute of frauds requires that any conveyance of an interest in land, including an easement, must contain a description of the land sufficient to locate it without oral testimony (or it must refer to another instrument that does contain a sufficient description). In the case of an easement, the document does not have to establish the easement’s actual location. Only the servient estate must be described in sufficient legal terms. The original Featherman property, the servient estate here, is properly located by its exact legal description.... Consequently the Featherman easement effectively created a valid easement over the Featherman property as the servient estate for the benefit of the Dorsey property as the dominant estate.

The Beyersdorfs pointed out that their portion of the Featherman parcel lay along its west boundary, and that a road beginning 200 feet south of the Featherman’s northeast corner and then running westerly and south would not cross their land. The court, however, felt that the second portion of the easement description, covering the “existing road commencing from northwest corner of grantors’ property” came sufficiently close to matching the road pointed out by Ms. Willhelm. The court felt it was justified to reform the document’s description to match the surveyor’s description of the as-built road:

The Feathermans and the Dorseys intended to provide access to the Dorsey property across the Featherman property. At least one of the easement routes indicated in their agreement, the one that followed an existing road, roughly corresponds with the route eventually used by the Dorseys. To the extent that the easement description–written, approved and executed by the parties– failed to express that intention clearly, reformation was justified to clarify that the established road constitutes the easement site.

Next the Beyersdorfs argued that even if there existed an easement along the existing road from the northwest, it was not 40 feet wide. The court also disagreed with this premise:

As discussed above, the Featherman easement appears to establish two actual access roads; one, from the northeast corner of the Featherman property, that appears to end at an “exit of gully” on the Beyersdorf property; and another, from the northwest corner of the Featherman (now Beyersdorf) property, that meets the first at the “exit of gully” and then runs to the west border of the Featherman property.

Creative use of commas and semicolons in the easement language arguably makes it unclear whether the entire easement should be 40 feet wide. The provision begins by stating that “[t]he easement and right-of-way hereby granted covers a strip of land 40 feet in width across the above described land,... beginning at a point approximately 200 feet South of the Northeast corner of the hereinabove described grantors’ parcel[.]” More directions, some followed by commas and one after a semicolon, further describe this 40-foot wide easement. Then, after a semicolon, the paragraph describes the existing road: “also existing road commencing from Northwest corner of grantors’ property; thence southerly to exit of gully...; thence South across gully, thence West and exit on West line of parcel.” The Beyersdorfs contend the portion of the easement beginning at the northeast corner was intended to be 40 feet wide, but the northwest “existing road” portion was intended to remain the width of the existing road, approximately 16 feet.

Admittedly confusing, the document nevertheless agrees to convey only one easement, and that “easement and right-of-way” is described as a strip of land 40 feet in width. Both the northeast and the northwest access roads are described in the same sentence and apparently intersect before they run as one road to the Wilhelm and Kordash properties. Absent language to conflict with this interpretation, the trial court properly adopted the surveyor’s conclusion that the portion of the easement actually used and maintained by Ms. Willhelm and the Kordashes was intended to be 40 feet wide.

Conclusion

Berg and Wilhelm address the same legal issue. In Berg, the supreme court declared that no easement existed, while in Wilhelm, the court of appeals reached the opposite conclusion. The crucial difference, of course, is that in Wilhelm, the entire Featherman estate was encumbered by the easement. This illustrates how artificial the technical requirements of the statute of frauds can be in practice.

In Berg, the parties intended to create an easement, no less than in Wilhelm. They wanted to contain the easement to a specified portion of the Cahill property, but apparently saw no reason why the exact location needed to be specified at the time of the conveyance, when the final subdivision layout was still in its planning stages. As a result, their entire effort was void.

In Wilhelm, the parties simply described all of the Featherman parcel, in effect creating a “floating” easement such as the one that was argued for but rejected by the Berg court. The problem with this floating easement is that when the Beyersdorfs purchased just a portion of the Featherman parcel, they could not be sure whether they were subject to the Dorsey easement or not. These cases demonstrate just a few of the headaches that continually crop up with easements. [pull quote]

The lesson, of course, is that easements should be carefully drafted. A property owner who relies on a poorly conceived easement document is bound to end up hoping that a judge will interpret it his or her way. That can be a risky proposition, and one that is easily avoided by putting thought into the document in the first instance.

Neither the author nor POB intends this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.

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