Although textbook definitions are common, the term “abandoned” defies easy categorization when applied to traveled ways. To the layman, the terms “abandoned” and “unused” seem interchangeable, but this general characterization is often inapplicable in the courtroom. Courts, legislative acts, and land use professionals overwork these terms or apply them in situations where “vacated” or “discontinued” might be more appropriate. All of these terms may appear – sometimes badly intermixed – in state statutes and court rulings relevant to private and public ways. In some instances, their meanings must be derived from surrounding language and circumstances.
Regardless of the term used, the context should be considered carefully. Individual state variations in law mandate a thorough examination of the origins and nature of the right in the context of current statutory and common law in the relevant jurisdiction.
The Iowa court wrestles inconclusively with this confusion in its discussion of two separate state laws: McCarl v. Clarke Co.: 167 Iowa 14; 148 N.W. 1015 (1914). But we are of opinion that there is no distinction, as here used in our statutes, in regard to discontinuing or vacating roads. Section 422, before quoted, reads that the board of supervisors may vacate or discontinue any county highway, etc. Section 1484 does not mention the matter of discontinuance, or use that word, but refers to the establishment, vacation, or alteration of roads, etc. A definition for the word “vacate” is to put an end to, and for the word “discontinuance” to leave off; to cease. The books refer to the two words in the same sense….
…A road may not be discontinued unless it is vacated, or possibly by abandonment. Abandonment would be a discontinuance in one sense. The question of abandonment of a road involves, not so much the question of time, though after a long time there may arise a presumption. But it involves more the question of intent and acts of the public. Nonuser is not enough, unless coupled with affirmative evidence of a clear determination to abandon. …Nor will obstructions or encroachments necessarily work an abandonment.
In Town of Goshen v. Casagrande: 178 A.3d 1252 (2018), the New Hampshire court appears to use the term “discontinuance” as a synonym for abandonment – in this case, resulting from a vote at a town meeting. The premise “once a highway, always a highway” is quoted and the court emphasizes that discontinuance is not favored in the law. Clear evidence is required to prove discontinuance. All of these statements are relevant to arguments of abandonment in most jurisdictions.
In general, common law abandonment is only applied to incorporeal rights and is not considered appropriate for fee title estates as seen in the Maine decision, Phinney v. Gardner: 115 A. 523 (1921): “The characteristic element of abandonment is the voluntary relinquishment of ownership, whereby the thing so dealt with ceases to be the property of any person and becomes the subject of appropriation by the first taker.” … The term is used in connection with personal property, inchoate and equitable rights, and incorporeal hereditaments, but “at common law a perfect legal title to a corporeal hereditament cannot, it would seem, be lost by abandonment.”
Abandonment comes in several forms, including at least two major types of common law and many state statutory variants. The common law varieties generally are considered more applicable to private roads and driveways than to public highways, but exceptions for prescriptive easements are found in some states.
The Source of the Right
When considering any assertion that the status of a traveled way has been diminished or extinguished, evidence relevant to the origins and prior use of the road is critical. Rules generally applied to private ways are sometimes inapplicable to public roads. The right may have been created by common law dedication to the public by grant, reservation, or through some legitimate statutory process. In other situations, the easement may be based on prescription, implied dedication, or the lost grant theory. The legal mechanism that created the right may also mandate the appropriate means of its extinguishment.
Most courts ultimately view public easements as having a greater importance and permanence than is attributed to private easements. This view is highlighted in the Idaho ruling, Trunnel v. Fergel: 153 Idaho 68; 278 P.3d 938 (2012): Idaho Code section 40-203(1) governs the specific means by which public highways may be abandoned and vacated. Through the enactment of the abandonment statutes, the legislature has elevated public easements above private easements.
Easements related to recorded plats present additional complications for the unwary. Depending on specific circumstances and state subdivision standards, some roads may be subject to both a private and public right. By common law dedication, a private easement is created when an owner records a plat showing proposed streets and then sells lots in accordance with the plat.
Additional express language (whether located on the plat or elsewhere) may result in a separate dedication of the roads to public use. If accepted, this results in a public way over the same street, but created by a separate legal mechanism. While the public way exists, the private right is effectively submerged in the public right. Later termination of the public right may not extinguish the private right.
This issue is discussed in the Utah decision, Oak Lane Homeowners Assn. v. Griffin: 219 P.3d 64 (2009). Under Utah law, when an owner creates a plat that clearly identifies a street and then sells the property that abuts the street by referencing the plat, the purchaser of the lot acquires a right that prevents the original owner from vacating or obstructing the street. … When the recorded plat dedicates the street to the public, then a person whose land abuts the platted street obtains both a public and private easement. … The private easement, which is independent of the public easement, can survive if the public easement is abandoned or vacated, but only if the two easements were once held contemporaneously. This private easement is appurtenant to the property and “constitutes a property right which can only be taken from [the affected owners] or obstructed by making proper compensation.”
Hall v. Pippin: 984 S.W.2d 617 (1998) is a recent Tennessee decision that describes a similar duality in some public easements. Once the public right is terminated by statutory processes, it would require a separate common law abandonment to extinguish the private rights that remain to those property owners along the road. Common law abandonment must be proved by non-use combined with unequivocal external acts that prove an intent to relinquish any further right to use the way in question.
Common Law Abandonment
Once the origins and current status of the way are determined, the appropriate mechanism(s) for extinguishing or changing the status of the way will depend heavily on individual state law.
Common law definitions of abandonment generally describe a complete termination of the easement. In Bernards v. Link: P.2d 341 (1952), the Oregon court bases abandonment on …conduct of the easement owner manifesting an intent to exercise the easement no longer. This dispute concerns a private easement with a recognizable dominant and servient estate. In this context, the former servient estate is no longer burdened by either a public or private incorporeal right.
The Pennsylvania decision, Moser v. Nocito: 41 Pa. D. & C. 3d 82 (1984), honors the general rule that non-use alone is insufficient to extinguish a record easement. It also lists several ways an easement may be obliterated: Extinguishment of an easement can be found where there is: (1) a cessation of necessity; (2) a merger of title, possession and enjoyment of the dominant and servient tenements; or (3) an abandonment of the easement.
Some states apply a separate standard for prescriptive easements – private or public – and recognize their termination by a unique variant of common law abandonment. Unlike abandonment of public easements created by express grant or legislative authority, these courts assert that the prescriptive right is abandoned after non-use for the prescriptive period. Foxcroft v. Foxglen: 57 S.W.3d 187 (2001) is an Arkansas decision that highlights the separate standards applied to public easements created by prescription: Once gained, a prescriptive easement may be abandoned by more than seven years of nonuse. This court applies a similar standard regardless of whether non-use is due to lack of public interest or results from the installation of a gate by the servient owner.
This rule is by no means universal. In Renner v. Nemitz: 33 P.3d 255 (2001), the Montana court applies the same common law standard of protection to public and private prescriptive easements as it does to those created by other mechanisms. Mere non-use is insufficient to prove abandonment because of the importance of preserving property rights; abandonment must be proven with words or acts that indicate clear intent to abandon.
Part two of this article will consider the extinguishment of public ways.
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.