Floating easements are problematic for surveyors because they only identify the subject tract that is burdened by the servitude and lack a written description defining the location within the tract. These “blanket easements” are particularly common in grants of rights for utility lines, but also are often associated with private driveways and roads. Many surveyors and land use professionals mistakenly believe that these easements cannot be located because they lack the locational data that would normally fix the limits and extent of the easement. Actually, courts nationwide supply a standard that can be applied by surveyors to determine the location and width of these easements.
Practical location is a principle of retracement. It is separate and distinct from principles associated with easements implied by prior use and from those created by prescription or implied dedication. There is no requirement for adverse use, nor must the road or utility line be in existence at the time of the conveyance. Practical location generally is reserved for situations where legitimate documents clearly indicate the intent of the parties to convey an easement. In other words, the intent to convey the right is not in dispute, merely the location associated with that intent.
Courts often apply this expedient to determine the location and extent of many types of easements, including those for utilities, driveway access and railroads. Practical location is highlighted in the Missouri decision Bolomey v. Houchins: 227 S.W.2d 752 (1950). In this dispute over an access easement created by a will, Judge Benneck notes: Where (as in this case) an easement in land is created in general terms without giving its definite location and description, the course over which the right is to be exercised may be subsequently fixed by the express agreement of the parties, or a selection may be inferred within the boundaries of the land over which the right is granted by proof of the use of a particular way on the part of the grantee or owner of the dominant estate along with the acquiescence of the grantor or owner of the servient estate.
The argument has been raised that floating easements are void due to lack of sufficient description of the easement. The Colorado decision Isenberg v. Woitchek: 356 P.2d 904 (1960) disagrees. Due to a long history of poor descriptions, documents creating easements are generally given more latitude than deeds for fee simple estates in land: The rule is that vagueness of description does not go to the existence or validity of an easement. While extreme cases may exist where a deeded easement might be deemed void due to vagueness, practical location provides an additional tool to determine and fix its location.
Once the easement limits are fixed by subsequent use, the location is considered fixed as if the description were written into the original agreement and cannot be changed at a later date. The Maryland decision Sibbel v. Fitch: 34 A.2d 773 (1943) observes: Where an easement in land, such as a way, is granted in general terms, without giving definite location and description of it, the location may be subsequently fixed by an express agreement of the parties, or by an implied agreement arising out of the use of a particular way by the grantee and acquiescence on the part of the grantor, provided the way is located within the boundaries of the land over which the right is granted. As otherwise expressed, it is a familiar rule, that, when a right of way is granted without defined limits, the practical location and use of such way by the grantee under his deed acquiesced in for a long time by the grantor will operate to fix the location. The location thus determined will have the same legal effect as though it had been fully described by the terms of the grant. Once fixed, neither party can unilaterally alter the easement location. The location can only be changed by a legitimate deed or other appropriate contract between the dominant and servient owners.
The New Mexico court has only recently recognized practical location of easements, as seen in the landmark decision Wagon Mound v. Mora Trust: 62 P.3d 1255 (2002). This ruling validates the concept for New Mexico and applies it to a pipeline easement for the village water supply. Citing previous rulings from California, Tennessee, Minnesota and Pennsylvania, Judge Bustamante also highlights the frequency with which blanket easements are the source of a legal dispute.
The court concludes that practical location represents a legitimate method to prove intent of the original parties. The pipeline was built shortly after the agreement was finalized and remained in use in a recognizable location for over 60 years. Judge Bustamante also emphasizes that the recognition of this concept poses no threat to the integrity of property titles and actually enhances the court’s ability to affirm the intent of the original parties.
It is often assumed that a blanket easement allows the user to install additional structures anywhere on the servient tract no matter how much time has elapsed since the execution of the easement agreement. The Georgia court pushes back against this erroneous assumption in Jackson Electric v. Echols: 66 S.E.2d 770 (1951). This dispute began when the utility company attempted to install a second power line in a separate location, relying on an existing blanket easement agreement executed in 1941. The original utility structures were completed by 1946, but Jackson Electric then began construction of an additional line circa 1950. Judge Worrill concluded that the extent of the easement was fixed by the completion of the original installations, and that the electric company would need to obtain a separate easement before building additional lines across the Echols property.
Where the deed provides the width of the easement but not the centerline location, practical location can be applied to supply the missing parameter. The limits of easements that describe an identifiable centerline, but lack a stated width, may be likewise located. Regardless of whether the missing parameter is the location or the width, practical location can provide the solution.
In Cushing v. Stannish: NO. CV 93-0348642 (1995), the Connecticut court observes that the width of the easement may be fixed by practical location: “The easement not being specifically defined, the rule is that the easement be only such as is reasonably necessary and convenient for the purpose for which it was created. …A right of way granted in general terms is limited to a way of the width and location actually taken and used by the grantee of the right.”
An odd variant is found in the New York court system, where several recent rulings seem to apply practical location to define the width of an easement even when the width is already stated in the agreement. This standard appears to be a local anomaly and is not followed by most jurisdictions.
While easements created years ago with no express limits present additional challenges for the surveyor, aerial photographs, tax records, old family photographs and other historic data provide the means of proving the original intent of the parties. These sources should reveal whether the present day utilities or roads are in substantially the same location as was the case for those first constructed after the execution of the agreement. Practical location is clearly a rule of construction that falls within the discretion of the surveyor in most states. Its proper application is merely another manifestation of “following the original footsteps.”
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.