At recent convention seminars in several states, one of the most contentious issues was the doctrine of merger. In particular, heated debates frequently arise over the necessity of creating a new easement after the original right was extinguished due to the operation of the doctrine of merger. This is a disturbing concept for many. How can an express grant of an easement that is clearly described in a recorded deed be considered void when the dominant and servient estate are presently under separate ownership?
While major flooding is a staple for headlines on the national news, another common flooding problem is less spectacular but may be equally problematic for the property owner and the surveyor. Surface flow water has often been the source of disputes between adjoining property owners.
Surveyors have long applied the rules of construction in interpreting deeds, wills and express grants of easements. Monuments generally control over measurements, with area at the bottom of the list. However, there are many other rebuttable presumptions the court may apply when considering the intent of the parties to a conveyance.
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.