Doctrine of Merger
November 1, 2012
At the outset, it would appear that the doctrine of merger falls well within the province of the legal profession, but the land surveyor can glean valuable lessons--and thereby avoid some professional blunders--from an understanding of the various issues relating to this principle.
One Massachusetts case sums up this concept in a very succinct manner: “the doctrine of merger requires that a servitude terminates when all the benefits and burdens come into a single ownership.”1 In other words, you can’t have an easement over yourself to yourself.
Although many surveyors are involved with the mapping of proposed parcels and associated easements that may be necessary for the reasonable enjoyment of those parcels, we must also keep in mind that the order in which new tracts and their associated easements are created is often critical.
One common application of this doctrine will (in certain circumstances) prevent an owner of a single parcel of land from creating an easement over one portion of the tract to serve another portion of the same tract preparatory to a proposed subdivision. While an easement may be created simultaneously with (or subsequent to) the creation of a new tract that would otherwise be landlocked, it is a common mistake to attempt to grant an easement to the proposed tract before that tract has been created. In such circumstances, the court will often rule that the easement is void from its inception. It should be noted this principle will not apply to easements crossing the parent tract and serving some third party.
One Virginia opinion2 illustrates several complications related to the doctrine of merger. In this example, an individual purchased property was subject to a “negative easement in gross” that was intended to “protect scenic, natural, agriculture and open space values” of the area. The Piedmont Environmental Council (PEC) was named as the grantor, as well as one of the grantees in the deed of easement. The plaintiff claimed the easement was void due to the doctrine of merger, as this principle generally does not allow “a holder of a fee simple interest and an easement to be one and the same.”
In this case, the court ruling upheld the easement for a number of reasons. While one named grantor and grantee were in fact the same organization, other entities were named in the deed of easement, which resulted in a lack of true unity of title for the parcel in question. More importantly, a recently enacted Virginia statute specifically authorizes the creation of easement of this type--superseding the existing common law.
The doctrine of merger may itself be formalized in state statute, as is the case in California. In that jurisdiction, civil code section 811 notes “a servitude is extinguished by the vesting of the right to the servitude and the right to the servient tenement in the same person.”
Of equal significance to the surveyor is the alternative possibility that a legitimate easement may cease to exist if the dominant and servient estate are later brought under single ownership--although this is not always a foregone conclusion. This concept is based on the widely recognized premise that where the landowner owns the servient tract and purchases the dominant tract, he then has the right to use any part of the combined tract in any way that is not contrary to the law; any easement over one part of the tract to serve another part of the same tract would therefore serve no purpose.
The general rule is that a person cannot have an easement in his or her own land, and, therefore, when both the dominant and servient estates are entirely owned by the same person, the easement is extinguished by the doctrine of merger. Simply, under those circumstances, the easement serves no purpose because the owner may use either estate freely. Significantly, however, merger is not effective, and an easement is not extinguished as a result of the merger, if the person owning both the dominant and servient estates only holds title to the servient tenement as tenant in common with another. He must own the entire title to both lots in fee if the easement is to terminate by merger.3
In addition to the complications introduced when tenants in common are involved in land transactions, this opinion is also careful to point out what is referred to as the “mortgage exception.” In this example, the dominant estate was under a mortgage when it was purchased by the owners of the servient estate. The court ruled the interests of the mortgagee must be protected; therefore, there was no true unity of title between the tracts.
While the surveyor will not likely be called upon to testify as to whether ownership of dominant and servient tracts constitute unity of title, we may be involved in situations where our understanding of this concept (and some additional research) may be of some benefit to our clients. Depending on the jurisdiction where an easement is contested, there may be two requirements that must be met in order for an easement to be extinguished under the doctrine of merger.
The first (and most common) requirement is “unity of title,” which only occurs when “two ownership interests are coextensive. Coextensive means that the type of ownership interest being united must be the same; a fee simple absolute interest, for example, cannot be merged with an interest in joint ownership to extinguish an easement.”4
Another source notes: “to effectively terminate the easement, the fee title with right of possession of both tracts must vest in the same party or parties, coextensively, and equal in validity, quality and all other circumstances of right.”5
It is instructive to note in both cases cited above, the court upheld the doctrine of merger and yet ruled the easement in question still existed due to evidence of a lack of unity in the property titles of the tracts involved. Some jurisdictions also require the physical possession or enjoyment of the two tracts be unified. An intervening life estate on one tract may defeat the presumption; likewise, an easement will not be extinguished when only two or three portions of an easement serving multiple parcels have been merged into single ownership.
An additional requirement occurs in common law of some states, but is more problematic as it deals with the length of time during which the titles must merge. As described in the Massachusetts case cited previously “the unity of title between the affected parcels must be of a permanent and enduring estate, an estate in fee in both, because the merger of the easement arises from that unlimited power of disposal.”6
A few jurisdictions go even further in this regard. California requires the tracts in question not be “liable to be disjoined again by operation of law.”7 On the other hand, still other courts allow even a momentary merging into single ownership is sufficient to extinguish an easement.
One Ohio decision highlights the complex analysis necessary when applying this doctrine. The court ruled that a common driveway easement between two lots fronting the same street was extinguished by the doctrine of merger, but went on to observe that another easement imposed on the street area was still in existence, since that easement was on lands not merged into single ownership.8
Another common misunderstanding arises when an existing easement between a dominant and servient estate is eliminated through the doctrine of merger, and the dominant estate is then reconveyed at some later date. It is widely recognized that the easement does not automatically re-emerge upon the later conveyance--rather, an entirely new easement must be created by some legitimate process (such as by express grant or reservation) even if it is to occupy the same location as the former easement.9
A very recent Missouri case finds a gas utility company pitted against the county government over the relocation of a gas line. The county held fee simple ownership of the road bed according to state statute, but the plats on which the fee transfer to the state were based also included an easement for gas lines within the road. The county argued that its fee ownership of the road constituted a unity of title; however, the court ruled that the gas line easement was a separate possessory interest over the gas lines within the easement and total unity of title had not been established.10
One rather vexing question that commonly afflicts landowners, land planners and attorneys alike is the status of the boundary line between two adjacent parcels that are purchased by the same individual or corporation. Do the lots merge into a single parcel or remain separate tracts? Local ordinances and state statutes may have significant impact on this issue, and there does not appear to be a single overriding principle that is said to be a majority rule in this scenario. In some jurisdictions, the intent of the landowner (possibly formalized by an affidavit) may affect the final outcome where two small tracts come under single ownership.
A merger takes place when a greater estate and a lesser meet in one and the same person, in one and the same right, without any intermediate estate. The lesser estate thereby merges in the greater. But a merger is not a necessary result of the union of the two estates in the same person. The intention and interest of the party who unites the two estates in himself will determine whether or not a merger takes place.11
The New Jersey court devoted extensive research to the issue of the merging of small or undersized lots and begins by emphasizing the lack of any single overriding principle nationwide. While observing that Maine supports an “automatic” merging of undersized lots, other states such as Connecticut require an assessment of intent.12
At least one court decision has held that the doctrine of merger may eliminate the provisions of a valid boundary line agreement. This opinion describes an unlikely comedy of errors that begins with an incorrect survey by the county surveyor. The two adjoiners relied on the survey and built a fence in accordance with the later survey. Many years later (long after the death of both of the original parties), the properties were united under single ownership, at which point the new owner sold one parcel according to the original deed description for that tract.
Included in this Colorado decision is an extensive discourse on the effect of the doctrine of merger upon existing fence lines, prescriptive rights and boundary line agreements.
A division fence often loses its utility and always loses its legal significance when separate ownership of the parcels is merged in one owner … Where, after a boundary agreement, title to the parcels affected become united, it has been held that a subsequent grantee of one of the parcels takes according to the terms of his deed unaffected by the agreement.13 [Cites omitted]
In the end, the court ruled that the merging of the two titles for a period of 15 days “wiped out” the effect of any boundary established along the fence by acquiescence and prescription. In addition we learn that, upon the later sale of one of the two parcels by the original deed description, the process of acquiescence and adverse possession must begin anew. It should be noted that Salazar was not a unanimous opinion, and the dissenting opinion raises other interesting ramifications.
The unfortunate truth is that the surveyor making inquiry as to the status of boundaries between adjoining lots apparently under single ownership may receive completely different answers from county attorneys, county planners and GIS personnel. Likewise, the status of an easement contained entirely within the boundaries of a single proprietor may remain in limbo until a court rules on its validity. Thorough research of the tracts in question will reveal some of the answers and may--just possibly--keep the surveyor’s reputation intact.
1. Busalacchi v. McCabe: 71 Mass. App. Ct. 493; 883 N.E.2d 966 (2008)
2. Piedmont Environmental Council v. Malawer: 80 Va. Cir. 116 (2010)
3. Daniel v. Carnevale: 300 A.D.2d 893; 752 N.Y.S.2d 737 (2002)
4. Busalacchi v. McCabe: 71 Mass. App. Ct. 493; 883 N.E.2d 966 (2008)
5. Heiner v. Kelley: Case No. 98CA7: 1999 Ohio Court of Appeals.
6. Busalacchi v. McCabe: 71 Mass. App. Ct. 493; 883 N.E.2d 966 (2008)
7. Zanelli v. McGrath: 166 Cal. App. 4th 615 (2008)
8. Shah v. Smith: 181 Ohio App. 3d 264 (2009)
9. Greene v. Butler, 2001 Conn. Superior Court: Case no. CV000083025S
10. St. Charles Co. v. Laclede Gas Co.: 356 S.W.3d 137 (2011)
11. Napleton v. Ray Buick, Inc.: 302 Ill. App. 3d 191; 704 N.E.2d 864 (1998)
12. Jock v. Township of Wall; 184 N.J. 562; 878 A.2d 785 (2005)
13. Salazar v. Terry: Colo. 911 P.2d 1086 (1996)
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 of advice is an attorney admitted to the bar in your jurisdiction.