July 27, 2018
HOW VARIOUS TYPES OF EASEMENTS ARE TERMINATED
A. Vacation of Public Roads
1. Non-use is not enough
Once a public road is established, it may be abandoned only by governmental action. As to state highways, see generally State v. UU Bar Ranch Limited Partnership, 2005-NMCA-79, 114 P.3d 399 (2005). As to county roads see § 67-5-4, NMSA 1978. As to post roads, see 67-2-3. It is unclear, under New Mexico law, what constitutes abandonment of public prescriptive easements.
2. Statutory Vacation and What Happens After Vacation
In New Mexico, there is no statutory vacation for most easements. The only type of statutory vacation relates to abandonment of easements obtained by eminent domain for public use. Section 42A-1-33, NMSA 1978, states: "Except as specifically provided by law, when an easement has been taken by eminent domain for public use and the public use is subsequently abandoned, the easement is extinguished and the possession of the property reverts to the owner or his successor in interest of the fee free from any rights in the condemnor." There are no cases cited under this statute. However, there are various cases under rights of reverter and eminent domain which may have specific application to this statute.
3. Abandonment of Public Roads
- Once a public road is established, governmental action is required to abandon it. (E.g., 67-2 6; 67-5-4)
- Though it is unclear as to how to abandon/vacate a public prescriptive easement. Presumably, since no governmental action to create it, none to abandon it.
- Section 67-2-7: Any owner of lands abutting any highway, street or road … may petition the state or any … political subdivision thereof, who believes a section of any public road, street or highway is not [no] longer needed for public purposes, [and] may petition the state … or political subdivision thereof for a formal determination of abandonment or vacation
- 67-2-6 Abandonment, vacation and reverter of public roads, streets and highways. Property or property rights acquired by purchase or condemnation by the state or any … political subdivision … for public road, street or highway purposes shall not revert until such property or property rights are vacated or abandoned by formal written declaration of vacation or abandonment which has been duly declared by the state or any … political subdivision of the state in whom the property or property right has vested. The right to abandon and vacate shall exist regardless of whether the public road, street or highway was created by the legislature or otherwise.
- 67-5-4. [Discontinuance; procedure; viewers; county-line roads.] Whenever, in the opinion of the board of county commissioners of any county, any road or part of road then established and maintained as a public highway is not needed, or the repairs of the same are burdensome and in excess of the benefits therefrom, they may … appoint a board of commissioners of three freeholders of the county as viewers, to view such road or part of road, and make report thereof to the board of county commissioners at their next regular meeting, setting forth fully their finding, and if they recommend a discontinuance of such road or part of road, then the board of county commissioners may order the same vacated….
State Roads – State v. UU Bar, 2005-NMCA-79, 114 P.3d 399
o State Hwy Dept affirmatively abandoned road.
o Abandonment “legally ineffective”; title still in Hwy Dept
o No Finance Bd approval
o State v. UU Bar, 2005-NMCA-79: At the time that the Highway
Department sought to abandon the Road, NMSA 1978, § 13-6-2(A) (1984) provided that: ... No sale or disposition of real or personal property having a current resale value of more than two thousand five hundred dollars ($ 2,500) shall be made by any state agency or local public body unless the sale or disposition has been approved by the state board of finance. (May be a typo – now it’s $25,000 13-6-2.1(A)).
B. Extinction and Termination of Private Easements
1. Common Law Abandonment
New Mexico addressed a claim of abandonment of easement in Ritter-Walker Co. v. Bell, 46 N.M. 125, 123 P.2d 381 (1942). In that case, it was argued that an easement by grant was so obstructed by the owner of the dominant estate (or at his direction) that the dominant estate owner manifested a clear intention to abandon it. The court cited case law to the effect that forfeitures of easements are not favored in the law. It then found substantial evidence to support the trial court’s finding that the easement was not abandoned. Id., 128-129 (“Appellant's …point is, that the easement was so obstructed by appellee, or by his direction, that a clear intention was shown on his part to abandon it.… Forfeitures of easements are not favored in law, … and we find in the substantial support for the finding of the court that it was not abandoned”).
The next New Mexico case dealing with the issue of abandonment of easements is Posey v. Dove, 57 N.M. 200, 257 P.2d 541 (1953). In response to the argument that the easement for an irrigation ditch had been abandoned, the court stated: "An easement of right-of-way may be abandoned. But abandonment usually implies an intention to abandon and yield and give over the right. The intention may be evidenced by acts as well as words, but where an act is relied on as the proof it must unequivocally indicate such intention.” Id., 57 N.M. at 210 . The court went on to hold that the non-user of a ditch brought about by circumstances over which the owner has no control does not work on an abandonment of the ditch as the intent to abandon is lacking.
The issue of forfeiture of an easement was also discussed in Sedillo Title Guaranty, Inc. v. Wagner, 80 N.M. 429, 457 P.2d 361. The record in that case indicated that the northerly 50 feet of the easement had never been used. However, the court indicated that non-use of an easement does not create a presumption of abandonment. In addition to non-use, other circumstances must exist which clearly evidence an intention to abandon the easement. The court stated: "Mere nonuse, for however long, of an easement created by grant is almost universally held not to constitute an abandonment....An easement cannot be extinguished by a non-executed oral agreement.... An easement may be extinguished by an express written release of the servient tenement.... In order to be effectual, a release must be executed with the same formalities as are generally required in making transfers of an interest in land.” Id., at 431-432. See also Sitterly v.Matthews, 2000-NMCA-37, ¶ 31, 129 N.M. 134, 140, 2 P.3d 871, 877 (“The owner of the dominant property may abandon the right to an easement. … In order to abandon such an easement, the owner must evince a clear and unequivocal intention to do so…. The owner's "intention may be evidenced by acts as well as words[,] but where an act is relied on as the proof, it must unequivocally indicate such intention”).
The Sedillo Title Guaranty, Inc. case raises several interesting questions. First, by limiting the extinguishment language in that case, and in Posey v. Dove, 57 N.M. 200, 257 P.2d 541 (1953), to easements by grant, it raises the question of whether nonuse of a prescriptive easement is evidence of abandonment without any indication of the owner’s intention. See also discussion of Extinction by Prescription, infra. Also, while the court held that an unexecuted oral agreement could not extinguish an easement, it would seem that such an agreement, if proven, would certainly indicate the intent to abandon, an essential element under the Posey case and Sedillo Title Guaranty, Inc. Cases from other states may also be instructive on this point. A few are included here:
Hudson v. Pillow, 541 SEd 556, 561 (Va. 2001):
o The party claiming abandonment of an easement has the burden to establish such abandonment by "clear and unequivocal evidence….Nonuse of an easement coupled with acts which evidence an intent to abandon or which evidence adverse use by the owner of the servient estate, acquiesced in by the owner of the dominant estate, constitutes abandonment.” If the party asserting abandonment relies upon nonuse of the easement coupled with an adverse use by the owner of the servient estate, that adverse use must continue for a period of time sufficient to establish a prescriptive right. Id., citations omitted.
o In that case, abandonment was found based upon nonuse of the easement coupled with acts by the servient owners that were "inconsistent with," or adverse to, "the future enjoyment" of the easement by the dominant owners for a period of time sufficient to create a prescriptive right.
Boyer v. Dennis, 742 NW2d 518 (SD 2007): “…a substituted access may serve as evidence of abandonment, but that by itself is not dispositive. … Use of a substitute road may be evidence of an abandonment of the old road; however, ‘[t]he mere use of a new right-of-way will not extinguish the old. There must also be an abandonment by non-use of the old right-of-way.’ … Those claiming abandonment carry the burden of showing by clear andconvincing evidence an intent to abandon the easement.” Id., citations omitted.
Mueller v. Bohannon, 589 NW2d 852 (Neb. 1999)
o “…the important facts to prove abandonment are "the nature of the acts done by the dominant owner, or of the adverse acts acquiesced in by him, and the intention which the one or the other indicates . . . .”
o “If an owner of an easement, by his own act, renders the use of the easement impossible, or himself obstructs it in a manner inconsistent with its further enjoyment, the easement will be considered as abandoned by him… Bohannon's construction of the fence, then, is objective evidence of abandonment.”
o “After considering the Muellers' arguments and conducting a de novo review of the record, we conclude that the evidence of nonuse from the time of the easement's creation, combined with Bohannon's construction of a fence across the easement, is sufficiently clear and convincing evidence to show that the Bohannons intended to abandon the actual easement.”
Lague v. Royea, 152 Vt. 499, 568 A.2d 357 (1989): the burden is on party claiming abandonment to show acts by dominant owner that conclusively and unequivocally manifest either present intent to relinquish the easement or a purpose inconsistent with its future existence; reliance by the owner of the servient estate is not required to establish abandonment.
Leisz v. Avista Corporation, 232 P.3d 419 (Mont.2010).
C. Other Types of Termination
1. Cessation of purpose
Another type of easement extinguishment can occur with the "cessation of purpose doctrine." In Olson v. H & B Properties, Inc., 118 N.M. 495, 882 P.2d 536, the court recognized that doctrine and defined it as follows:
An easement that is created to serve a particular purpose terminates when the underlying purpose for the easement no longer exists. Jon W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses in Land P 9.03 (1988). This principle, known as the cessation of purpose doctrine, is based upon the assumption that the parties intended the easement to terminate upon cessation of its purpose, and it serves to eliminate meaningless burdens on land. Id. In a cessation of purpose case, the court first determines the particular purpose for which the easement was created. Id. If that purpose no longer exists, the court may terminate the easement. … When a court finds that an easement is unfit for its intended purpose, the court within its equitable power may revise the granting instrument so that the easement satisfies the purpose for which it was created. Id., at 498, 499.
Another aspect of the cessation of purpose doctrine in the public context arises in dedication and reverter. In the case of Wheeler v. Monroe, 86 N.M. 296, 523 P.2d 540 (1974), property was dedicated as a park. After it was no longer used for that purpose, the City sold it to the defendants. The issue was whether there was a reverter to the original grantor as a result of the nonuse and sale. The Wheeler court found that the gift could contain either a "possibility of reverter" or a "right of re-entry." Id., at 298-299. A "possibility of reverter" means that the grantee's estate automatically terminates upon the happening of a certain event. A "possibility of reverter" can be created when the language in the deed begins with "so long as", "during" or "until". Id., at 298. The "right of re-entry," on the other hand, is an election to terminate upon the happening of an event. It occurs if the language in the deed used is: "provided that", "but if", "upon the express condition". Id. If, however, there is no conditional language in the dedication, then (based upon the applicable statute) it is an absolute gift to the public entity in fee simple absolute. Id., at 297. The court, in ruling that the property in that case was an absolute gift, overruled the case of Phillips Mercantile Company v. City of Albuquerque, 60 N.M. 1, 287 P.2d 77 (1955); and Beverly Wood Associates v. City of Albuquerque, 78, N.M. 334, 431 P.2d 67 (1967). Id., at 298-299.
See Cottonwood Duplexes, LLC v. Barlow, 210 Cal.App. 4th 1501, 149 Cal. Rptr. 3rd 235 (2012); Boissy v. Chevion, 33 A.3d 1109 (N.H. 2011).
2. Merger or Unity of title/alteration of easements
Another theory by which easements can be extinguished is the doctrine of unity of title. If Tract A has an easement appurtenant to it running through Tract B, and the title to Tract A and B is unified in the same owner, all of the interests in the land of Tract B merge with the interest of the owner. The easement is thereby extinguished because the dominant and servient estates have merged in a single owner. If Tract A is then transferred back out to a different owner, it is necessary for the easement to be reestablished by grant or it will terminate. Of course, if the elements of an easement of necessity or easement by implication are present, then the new owner may have an easement by that doctrine. However, if those elements are not present, the easement would no longer burden Tract B. See Michelet v. Cole, 20 N.M. 357, 361, 149 P. 310 (“A party cannot have an easement in his own land, as all the uses of an easement are fully comprehended and embraced in his general right of ownership … if it be conceded that an easement over appellee's land existed at one time, the right would cease when appellee became invested with the title to both parcels of land”). Also see Williams Bros. Inc. of Mansfield v. Peck, 81 Mass.App. Ct. 682, 966 N.E.2d 860 (2012); Appletree Mall Associates, LLC v. Ravenna Investment Associates, 33 A.3d 1097 (N.H. 2011); Belstler v Sheler, 264 P.3d 926 (2011)
A doctrine somewhat related to extinguishment is the question of alteration of easements. The general rule, as stated in Posey v. Dove, is that the owner of an easement may make no alteration in dimensions, location or use of the easement which increases the burden on the servient estate except by consent of the owner of the servient estate. See also Brooks v. Tanner, supra. This rule was amended slightly in the case of Kikta v. Hughes, 108 N.M. 61, 766 P.2d 321 (Ct. App. 1988), in which the court held that the owner of the dominant estate cannot change the extent of the easement or subject the servient estate to an additional burden not contemplated by the grant of easement:
The owner of the dominant estate cannot change the extent of the easement or subject the servient estate to an additional burden not contemplated by the grant of easement. Stout v. Christian, 593 S.W.2d 146 (Tex. Civ. App.1980). See Ricelli v. Atkinson, 99 Ohio App. 175, 132 N.E.2d 123 (1955). Cf. Brooks v. Tanner, 101 N.M. 203, 680 P.2d 343 (1984) (holding that the burden on the servient estate cannot be increased without the consent of the owners of the servient estate and that the owner of the dominant estate to which the appurtenant easement is attached has no power to convey or expand use of that easement in connection with a tract of land owned by another).
Kitka, 108 N.M. at 63. That language was then used to further expand the exception to the doctrine in the case of Camino Sin Pasada Neighborhood Association v. Rockstroh, 119 N.M. 212, 889 P.2d 247 (Ct. App. 1994). The court recognized the rule that easements cannot be expanded, changed or modified without the consent of the servient owner. However, the court went on to say that the rule also permits additional burdens which were contemplated or foreseeable at the time the easement was created. The court utilized that rule to allow the use of a roadway by an entire subdivision when there was only use by one owner at the time the easement was granted. Although the seller contemplated a subdivision, it did not provide this information to the buyer. The court, nonetheless, found that subdivision use was foreseeable to the buyer.
Also, as discussed above, the case of Sedillo Title Guaranty, Inc. v. Wagner, supra, held that the court has equitable powers to relocate easements. In Sanders v. Lutz, 109 N.M. 193, the court rounded off the corners of an easement when it was clear from the grant of the easement that the corners were square. The court held that there was an ambiguity caused by the fact that the easement was for the purpose of use by automobiles and that automobiles could not go across a square corner. They then allowed the trial court, using its equitable powers, to round off the corners in contradiction to the specific language of the document, to carry out the intent of the parties. These holdings are somewhat in contrast with the holding of Dyer v. Compere, supra, which held that the owner of the easement had to use just the eight feet granted even if it was no hardship to any party to detour. That court held that where the grant is specific in its terms, it defines the limits of the easements.
As stated above, the case of Sedillo Title v. Guaranty, Inc. v. Wagner, supra, implied that the requirement of “intent to abandon” is not applicable to the extinction of prescriptive easements. Other states have recognized this exception to the requirement of intent when a prescriptive easement is abandoned for the prescriptive period. See Johnston v. Verboon, 269 Ark. 126, 128, 598 S.W.2d 752, 754 (1980); McLain v. Keel, 135 Ark. 496, 498, 205 S.W. 894, 895 (1918); McDonald v. Sargent, 308 Mich. 341, 345, 13 N.W.2d 843, 844 (1944); Cook v. Grand River Hydroelectric Power Co., Inc., 131 Mich. App. 821, 827, 346 N.W.2d 881, 884 (1984); 3 R. Powell, supra note 1, ' 34.20; 3 H. Tiffany, note 3, 825; Annotation, Loss of Private Easement by Nonuser or Adverse Possession, 25 ALR2d 1265, 1283 (1952); McGrath v. Bradley, 238 Or.App. 269, 242 P.3d 670 (2010); Buckner v. Castro, 306 S.W.3d 655 (Mo.App. S.D. 2010).
A somewhat related doctrine is termination by prescription. This doctrine applies to any easements, even easements by grant. The doctrine was referred to in Luevano v. Maestas, supra, and held to apply when the owner of the servient estate makes use of the easement in a way that is adverse, and for the period of prescription, continuous and uninterrupted. While this is a rather imperfect statement of the elements of prescriptive easements, other courts addressing the doctrine of termination by prescription require that all the elements of a prescriptive easement must be proven. See, e.g., Beebe v. Swerda, 58 Wash. App. 375, 793 P.2d 442 (1990); Estojak v. Matsu, 552 Pa. 353, 562 A.2d 271 (1989). Also, presumably the same presumptions and burdens of proof would apply to such extinguishment as apply to the creation of a prescriptive easement. The most significant problems arise in the application of this doctrine, in establishing the adverse character of the use by the servient owner. As stated above, a servient owner has the right to use his property and the easement itself in any way that is consistent with the use by the dominant owner. Thus, the doctrine is held to apply only, typically, in cases where the owner of the servient estate builds a building or other structure over the easement or completely blocks it. The Law of Easements and Licenses in Land, § 10.07.
Another common law method of extinction of an easement was also referred to inthe case of Luevano v. Maestas, supra. While that case, following the lead of Luchetti v. Bandler, 108 N.M. 682, 777 P.2d 1326 (Ct. App. 1989), discussed easement by estoppel, it also mentioned the doctrine of extinction by estoppel, citing Restatement of Property, § 505. Other authorities state that an easement may be terminated by estoppel when the owner of a servient estate acts to the easement owner’s material detriment in reasonable reliance upon conduct of the easement holder that indicates that the holder plans to make no further use of the easement. Picconi v. Carlin, 40 NJ Super. 393, 123 A.2d 87 (Law Div. 1956); Baptist Church in the Great Valley v. Urquhart, 406 Pa. 620, 178 A.2d 583 (1962); Nahabedian v. Jarcho, 510 A.2d 425 (RI 1986); Restatement of Property § 505 (1944); 2 American Law of Property § 8.100 (1952); Annotation, Loss of Private Easement by Nonuser or Adverse Possession, 25 ALR2d 1265, 1305 (1952).
In some states, overuse of an easement can cause it to be extinguished. See Steed v. Solso, 358 Mont. 356, 246 P.3d 697 (Mont. 2010).