Table of Contents

Preface ix

Acknowledgments xiii

1 – Introduction 1

Rights and Interests in Land; Transfer of Ownership 1

Means of Transferring or Obtaining Title or Rights in Land 3

2 – Easements in General 8

Definition: What is an Easement? 8

Easement Terminology 20

Intermittent Easements 25

3 – Types of Easements 29

Right of Way 29

Right of Way Line 31

4 – Creation of Easements 45

Express Grant 46

Reservation or Exception 49

Agreement or Covenant 51

Implication 51

Estoppel 62

Prescription 63

Eminent Domain 72

Custom 74

Vote of a Governing Body 82

5 – Termination of Easements 85

Expiration 85

Release 86

Merger of Title 87

Abandonment 87

Estoppel 90

Prescription or Adverse Possession 90

Destruction of the Servient Estate 91

Cessation of Necessity 92

Eminent Domain 92

Frustration of Purpose 92

Overburden 94

6 – Easements and Descriptions 96

General 96

Void Instruments 100

Interpretation 102

Compilation 105

7 – Problem Easements 108

Undescribed Easements, Blanket Easements 108

Locating an Undefined Easement 109

Hidden Easements 110

Rolling Easements 111

Shore Road Allowances in Canada 114

The New Zealand Example 115

8 – The Process of Reversion 117

Estate in Reversion 117

Possibility of Reverter 117

9 – Reversion of Easements 122

Highways 124

Flowage 124

Railroads 125

10 – Reversion Relating to Highways (and to Other Types of Rights of Way) 127

Discontinuance or Abandonment 128

Actual Highway Abandonment 128

Procedure 129

Presumption of Law 131

Overcoming the Presumption 135

Abandonment, Strictly Speaking 137

11 – Rules of Locating and Defining Reversions 140

Basic Rule 141

Curved Street 142

Street Intersection 142

Ownership at Intersection with Reversion Only at One Street 143

Curved Street Intersection 144

Lots at an Angle Point in the Road 144

Lots Adjoining a Subdivision Boundary 145

Marginal Road 146

Special Cases 146

Problem Cases 147

Documents Indefinite or Not Available 150

Summary of Procedure for Determining Reversion Rights in Vacated Highways 151

12 – Easements and the Land Surveyor 153

ALTA/ACSM Standards 153

Right of Way as Boundary Line 154

Retracement of Right of Way Line 154

Retractment of Original Survey of Highway 155

Easement Plans are Land Surveys 155

Liability of the Land Surveyor 156

Easements are Similar to Other Land 156

13 – Easements and the Title Examiner (or Records Researcher) 157

Items Outside the Period of Search 157

Items Not on the Public Record at the Court House 157

Items to Be Shown by an Accurate Survey 158

Implied Dedication and/or Acceptance 158

What Insurance Does Not Cover 158

Liability of the Title Examiner 162

14 – Case Studies 164

Case #1 Who Owns the Road? 164

Case #2 Who Owns the Land? 168

Case #3 How Much Research is Necessary? 170

Case #4 How Wide is the Right of Way? 173

Case #5 When Does a Road Become Not a Road? 179

Case #6: Presumption of Ownership to Centerline Overcome 182

Case #7 Right of Way Created by Estoppel 187

Case #8 The Marginal Road, a Special Case 191

Case #9 Road Constructed Outside of Layout 194

Case #10 Reversion of a Cemetery Lot 196

Case #11 Determining Title to Land Parcel When a Road is Relocated 205

Case #12 Easement by Agreement Resulting in Cessation of Necessity 214

Case #13 Road Shown on Subdivision Plat Not a Public Way 218

Case #14 Railroad as Abutter Not Receiving One-Half of Vacated Highway 225

Case #15 Overburdening an Easement Causing Its Termination 231

Case #16 Major Expansion of Development Not Causing an Overburden 238

Case #17 Proprietor’s Way 242

Case #18 Easement by Custom 249

References 259

For Further Reference 260

Glossary 264

Index 281

About the Author

DONALD A. WILSON is the President of Land & BoundaryConsultants, Inc., in Newfields, New Hampshire.

Reviews

Easements and related incorporeal rights to land have become more critical than ever as land development brings access to the forefront of many property disputes. This book represents a comprehensive study of the complexities that may arise when dealing with roads (both public and private), railways and utility easements. The author has researched many topics not previously addressed in other texts of this genre. Basic principles are clearly laid out in the 14-chapters of the book, but this text goes beyond the basics to provide specific information on overlooked and emerging issues. Wilson's book includes discussion of easements created by a vote of a governing body, along with rolling easements and blanket easements. In addition, the tricky issues generated in subdivisions by a "common scheme" are considered. I was particularly pleased to read the section on the creation of railroad rights of way and the specific examples of language that will determine the rights conveyed. (Kristopher M. Kline, Reviewer & Author, October 2013)