Unmistakable Marks: Extinguishing Easements, Part Two
In part one, we noted that 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.
We resume the discussion with the consideration of …
Extinguishment of Public Ways
State laws generally include specific processes for statutory abandonment of public highways when specific conditions are met. These legislative acts should not be confused with common law abandonment. Most states have more than one statute in order to deal with various classes of state highways and local public roads.
The New York court describes two different processes applicable to a public way in Stupnicki v. Southern NY Fish & Game: 244 N.Y.S.2d 558 (1962). Then-current state code included provisions for both a “qualified abandonment” and “absolute abandonment,” each with its own specific requirements and radically different results. The town council in this instance had followed the procedure for absolute abandonment.
Judge Bookstein describes the result of a successful statutory abandonment and the disposition of the land formerly covered by the easement: It is the rule that where an easement only exists in the public that upon abandonment the fee is presumptively in the owners of the adjoining land. This is true at least until proof to the contrary has been offered. … ‘The legal presumption * * * as respects a highway or road is that one who owns both sides of a highway is presumed entitled to the fee of the road, subject to the public easement. Upon discontinuance of a road, therefore, the fee is not in the public, but presumptively in the owners of the adjoining land, until proof is made showing ownership.’ This is a rebuttable presumption that can be superseded where evidence indicates otherwise. This quote also confusingly uses the term “discontinuance” as an apparent synonym for abandonment.
Courts consistently emphasize that statutory abandonment requires all involved parties to meet specific standards. Failure to follow the required procedures and process will not avail to extinguish the right. The Utah courts support this stance in Adney v. State Road Commission: 248 P. 811 (1926): …it is seen that the procedure to discontinue, vacate, or abandon a highway is statutory, which must be strictly followed and complied with, else the proceeding to discontinue or vacate or abandon it will be void. Courts will generally distinguish between minor irregularities that do not defeat the statute as opposed to major omissions that are in clear violation of the terms of the law.
Some states have held consistently that a public highway cannot be abandoned at common law. In Reagan v. City of Newport: 43 A.3d 33 (2012), the Rhode Island court highlights special protections for public highways: “As far back as the turn of the [twentieth] century, the Rhode Island Supreme Court has steadfastly held that once a highway has been established, the public right cannot be abandoned except in the manner provided by law for the abandonment of highways and no private right can be obtained either by nonuse or adverse possession.”
…a town cannot abandon its obligation to maintain a right-of-way by simply failing to fulfill its maintenance obligations,” … Abandonment Statute’s procedures are the “exclusive means” by which a municipality may abandon a public highway…. a public highway may be abandoned only by strict compliance with that statute…. This Court has made it clear that discontinuance or abandonment of a public highway entails a formalized, semi-judicial process and proceeding.
As is typical of other statutory processes, Judge Suttell emphasizes that all statutory requirements must be fulfilled in order to successfully terminate a public way.
The Ohio court concurs in principle with the Rhode Island standard and justifies this position by analogy to its position on adverse claims against the state. New 52 Project v. Proctor: 907 N.E.2d 305 (2009) concludes that if a public highway is immune to adverse possession claims, it should likewise be beyond the power of individuals to extinguish a public highway. The apparent intent of R.C. 5511.01 and R.C. 5511.07 is to protect public interests and block claims of common law abandonment on public municipal streets.
Even where courts consider common law abandonment for public ways, its application generally is treated with suspicion as seen in Malloy v. Reyes: 61 V.I. 163 (2014): Although it does not appear that any other Virgin Islands court has ever addressed the abandonment of a public easement at common law, virtually every United States jurisdiction recognizes that “‘[o]nce a highway always a highway’ is an ancient maxim of the common law.”
This maxim only “gives way to the rules of law concerning the abandonment or vacation of a highway” which serve as a narrow (and disfavored) exception to the rule. The court concludes that abandonment of public easements is only proved by non-use combined with conclusive evidence that the government has no further need of the way. This portion of the decision cites the Ohio ruling New 52 Project (discussed previously) for authority.
While not controlling in the remainder of the United States, rulings from the U.S. Virgin Islands are sometimes instructive because the lack of existing local precedent mandates extensive research into mainland decisions. In this instance, the judge quotes rulings from Illinois and New York in addition to U.S. Supreme Court precedent.
Changes to Statutory Standards
An additional level of confusion is introduced when the purported abandonment took place prior to subsequent legislation. The Connecticut decision, Nicholas v. Town of East Hampton: CV040103439S; Conn. Super. (2005), considers public and private rights in light of significant legislative changes. This ruling recognizes two separate scenarios that could be associated with the abandonment of a public way: The public rights in a highway may be vacated either by being discontinued or abandoned. …Prior to the 1963 enactment of General Statutes 13a-55, whenever a public easement was extinguished, both the public easement and the private easement of access were eliminated, so that the owner of the roadbed was restored to his original dominion over the land. … Since the enactment of General Statutes 13a-55 in 1959, whenever a highway is discontinued or abandoned, the owner of the land over which the highway runs holds that property discharged of the public easement, but subject to the private easements of those living along the road. As is the case with other legislative changes affecting real property interests, statutes of this nature generally do not operate retroactively due to possible deleterious effects on legitimate property rights perfected under the previous system.
More recently, the U.S. District Court provided a rationale for the statutory changes described above. Garlasco v. Town of Bridgewater: 602 F. Supp. 2d 396 (2009) observes: [T]he effect of 13a-55 is to alter the common law consequences of the discontinuance of a public highway. While, before the statute, discontinuance extinguished both the public easement of travel and the private easement of access … after the statute, the public easement ceases but the private easement remains. The abutting owners now continue to have an easement of access over the discontinued highway.
Withdrawal of Dedication
Dedication without acceptance does not create an easement, but some courts hold that a proven dedication is an irrevocable act as a permanent offer to the public. Other states conclude that the dedication can expire after a long span of time – often the duration mandated in the statute of limitations for real property. Unaccepted dedications may pose additional problems for land use professionals.
Statutes allowing the withdrawal of dedication generally are limited to a narrow class of “paper street” where a formal dedication by plat has occurred, but acceptance cannot be proved by writings or actions. In Steadman v. Town of Pinetops: 112 S.E.2d 102 (1960), the North Carolina court describes the process to extinguish a dedication: …where streets are dedicated to the public by the registration of a plat showing streets and alleys thereon, and such streets or alleys are not opened or used by the public for a period of fifteen years from and after the registration of such map or plat, the dedication of such streets and alleys become subject to withdrawal under the provisions of G.S. 136-96. This statute has the effect of creating a conclusive presumption of public abandonment of the dedication after 15 years, but is subject to several exceptions. It also identifies North Carolina with that group of states that allow a dedication to expire.
Additional discussion of other statutes relating to withdrawal of dedication can be found in Vivian v. Roscommon: 433 Mich. 511 (1989) and Priolo v. City of Dallas: 257 S.W.2d 947 (TX) (1953).
The examples above primarily focus on highways and represent a cross section of the possibilities nationwide. Public parks, squares and beaches are frequent sources of disputes over public access. Rail lines represent yet another category of public ways with separate state and federal standards that control their termination. Negative reciprocal servitudes and other subdivision restrictions may be abandoned in certain circumstances.
Land use professionals should determine the source and nature of the existing right and consider appropriate common law and relevant statutes. Given the complexity of the law as it relates to servitudes, the variety of possible claims of abandonment – reasonable or otherwise – would appear to be endless.
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.