September 28, 2018
Author: David L. Rein, Jr.
Organization: Bruce Campbell Law Firm LLP
It is much more interesting to consider how easements are created and yet, understanding the entire life cycle of an easement is just as useful. Knowing when and how an easement ends may make the difference between the successful completion of a public project and having to explain to the client that the client has trespassed or has created an inverse condemnation claim. Below are a ways an easement may be terminated.
Expiration by the Terms of the Easement
Most permanent easements are perpetual. Easements are not usually written in a way where they expire after a certain event or time period, but there is certainly no prohibition on writing an easement in such a way. Temporary easements, by their nature do expire after a period of time, the occurrence or nonoccurrence of an event or both.
For example, a public entity might purchase a permanent easement for a road or pipeline. It might also acquire a temporary easement for additional space to operate machinery and stage the work on building a road, pipeline or other public project. A temporary easement is usually written to last a certain time period or to expire after a particular event, such as the completion of the project. An easement might also combine the two, i.e. “the easement shall expire at the completion of the construction on the owner’s property or within two years, whichever occurs earlier.”
Deed or Release
The owner of an easement might agree, for a fee or at no cost, to release the easement that it no longer intends to use. Remember that a release must be in writing as this would be considered a conveyance of real property.
Public utilities, for example, traditionally purchased an easement to place its lines or equipment in areas broadly defined in the easement as anywhere on the landowner’s property. Commonly referred to as “blanket easements”, courts limit the scope of the easements to the degree occupied or used by the public entity. Indeed, a blanket easement created after December 31, 2006 is unenforceable unless it expressly states that the location of the burden is fixed to the degree occupied by the initial structure upon the completion of the project. 2 In a number of states, landowners can force a public utility to narrow the easement and although Missouri is not one of those states, most utilities will voluntarily release the older blanket easement in exchange for entering into a specific easement defining the easement narrowly.
While releases or deeding excess property may become routine, careful attention should be paid before executing them. The releasing party should consider all of the uses it makes of the property it is considering releasing. If the party is releasing the use of the driveway, does it still need to reserve the right to walk across the property for certain access or are there sewer or utility lines that serve the property that might be affected? If the utility is deeding excess property in fee, does it need to reserve rights to access a substation or a driveway?
This is the most common way that people think of the termination of easements. The popular misconception is the failure to use the easement for a long period of time is sufficient for finding that an easement has been abandoned. It is a misconception because the court will typically not find that an easement has been abandoned unless there is a period of nonuse coupled with an intention to surrender the easement.
Of course, an intention can also be found because it is impossible to use the easement. In a case in which a spur railroad track was not connected to the main track, the court found that it was impossible to use the spur because a connection would need to cross plaintiff’s land – the same party pressing the court to find that the easement had been abandoned.3 The defendant in this case did not have the power to condemn property, but it is worth asking whether this decision might have been different if the defendant had been a railroad with condemnation authority. Might the court have concluded that it was not impossible to connect the spur because the railroad could use its condemnation powers to take the necessary property interests from plaintiff?
The requirement of demonstrating an intention to surrender the easement is not necessary, however, when the easement is a county highway: 228.190. Roads legally established, when??deemed abandoned, when??deemed public county road, when
1. All roads in this state that have been established by any order of the county commission, and have been used as public highways for a period of ten years or more, shall be deemed legally established public roads; and all roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads; and nonuse by the public for five years continuously of any public road shall be deemed an abandonment and vacation of the same.
2. From and after January 1, 1990, any road in any county that has been identified as a county road for which the county receives allocations of county aid road trust funds from or through the department of transportation for a period of at least five years shall be conclusively deemed to be a public county road without further proof of the status of the road as a public road. No such public road shall be abandoned or vacated except through the actions of the county commission declaring such road vacated after public hearing, or through the process set out in section 228.110.
3. In any litigation where the subject of a public road is at issue under this section, an exact location of the road is not required to be proven. Once the public road is determined to exist, the judge may order a survey to be conducted to determine the exact location of the public road and charge the costs of the survey to the party who asserted that the public road exists. This statute does not apply to the abandonment of city streets and alleys.4 It also does not apply to land dedicated to the county in trust for the use as a public street even if the street is located outside the city limits.5 Instead, one would need to seek a vacation of the street as described elsewhere. It also is unlikely to apply to state highways.6
When the servient estate (the property encumbered with the easement) and the dominant estate are owned by the same person or entity then the easement is terminated. The easement is terminated because an easement by its nature is across the land of “another”. If title vests in the same person in entity then the easement is no longer across the title to another.
In one case, the court held that the doctrine of merger terminated an easement even though the property was not technically owned by the same person in entity. In that case, one of the parcels was held by a “straw party”, but in reality they were owned by the same party. Because “a man cannot have an easement over his own land”, the court held that the easement was terminated.7
An easement that was dedicated to the public may be terminated by a statutorily defined process involving the approval of the public entity that holds the easement and property owners adjacent to and sometimes within a defined distance from the easement. The plaintiff seeking, for example, the vacation of a public easement, would file a petition against the municipality and all statutorily required persons. The statute will define that a certain number of the adjoining property owners must agree to the vacation. If approved, the easement would be vacated and ownership would revert, usually to the adjacent property owners. One example of such procedure relating to vacation of streets outside of an incorporated town, city or village:
71.270. Streets in subdivision outside limits??petition—notice
1. Whenever a tract or parcel of land, being outside the limits of any incorporated town, village or city shall have been subdivided and streets, avenues, roads, alleys, public easements, public square or common marked on the recorded plat of said subdivision, the county commission of the county in which the subdivision is located may vacate the streets, alleys, roads, public easements, public square or common or part of either upon petition of the owner or owners of the ground lying on both sides of or fronting on the street, avenue, road, alley, public easement, public square or common, or part of such street, avenue, road, alley, public easement, public square or common, proposed to be vacated.
2. No such vacation shall be ordered until proof shall be made to the commission of the publication in a newspaper published in the county or of written or printed notices posted in five public places in the county, at least fifteen days prior to the term of the commission at which such petition shall be presented, that application would be made at that term of the commission for the vacation of the street, avenue, road, alley, public easement, public square or common, or part thereof, as described in the petition. Such notice shall state distinctly the nature of the petition, when it is to be made, and what street, avenue, road, alley, public easement, public square or common or part of such street, avenue, road, alley, public easement, public square or common, is proposed to be vacated. Utility providers which provide service in the area of the street, avenue, road, alley, public easement, public square or common, or any part of such street, avenue, road, alley, public easement, public square or common, sought to be vacated shall be notified of the petition by the proponent of the petition.
3. If no person interested in such subdivision shall appear and show cause to the commission why the vacation should not be made, the commission may make the order for the vacation as requested in the petition.
4. In the event that the commission orders the requested vacation, such order shall be filed with the office of the county recorder of deeds.
As mentioned in the discussion about abandonment, the termination of a public road is a unique process. For example, if there is a private easement for access to an adjoining property, the private easement terminates when both parcels are owned by the same person or entity (merger). But, merger will not occur if the road is a public road even if the road ends at the two parcels of property and the road is unused.
As quoted in the discussion as to abandonment, Missouri statute § 228.190 provides that upon a showing of nonuse by the public for five continuous years, the road may be deemed abandoned and terminated. Because the application is limited, however, one might have to make use of the vacation procedures provided in § 228.110 and other vacation options if the road is useless and repair it would be an unreasonable burden on the public entity.
Adverse Possession of Condemnation
One can terminate an easement by adverse possession just as one may create a prescriptive easement by adverse possession.8 The petitioning party mush demonstrate that its use of the easement in question has been continuous, uninterrupted, visible and adverse under a claim of right for ten years.9 If, for example, an adjoining property owner has an easement to cross his neighbor’s property, then placing sod and growing grass on the easement will not extinguish the easement because it does not interfere with the ability to continue to use the easement as an ingress and egress.10 But, building a deck or a garage on the easement area is inconsistent with that use and if left in place for the requisite ten years, would likely terminate the easement – or at least that portion of the easement where the inconsistent use is in place.11
Likewise, an entity with the statutory authority to condemn for the specific purpose may condemn an existing easement. In petitions to condemn property in fee, a condemning authority will name not only the fee owner of a property, but also anyone who holds an easement or other property interest in a condemnation. If the condemning authority is successful, the condemning authority will have taken all named interests – including the owner of any easements. Of course, one important difference is that unlike in taking an easement by prescription and by condemnation is that the condemning authority must pay the owner of the easement the fair market value of the easement.
- Incompatible Acts by Easement Owner
- Lack of Necessity
- Recording Act Violations
1 David has represented utilities, municipalities, businesses and other property owners in easement disputes and condemnations for almost twenty years. He is an instructor and chapter President of the International Right of Way Association. Before joining the Bruce Campbell Law Firm to better serve his clients, he was a partner at an AmLaw100 law firm and before that, a federal judicial law clerk for the Honorable Judge Dean Whipple.
2 Mo. Rev. Stat. § 523.282.
3 Ball v. Gross, 565 S.W.2d 685 (Mo. Ct. App. 1978).
4 Mitchell v. City of Everton, 655 S.W.2d 864 (Mo. Ct. App. 1983).
5 Winschel v. St. Louis County, 352 S.W.2d 652 (Mo. 1961).
6 Sheedy v. Missouri Highways & Transp. Comm’n, 180 S.W.3d 66 (Mo. Ct. App. 2005).
7 Ball v. Gross, 565 S.W.2d 685 (Mo. Ct. App. 1978).
8 Buckner v. Castro, 306 S.W.3d 655 (Mo. Ct. App. 2010); Notle v. Corley, 83 S.W.3d 28 (Mo. Ct. App. 2002); Frain v. Brda, 863 S.W.2d 17 (Mo. Ct. App. 1993); Loumar Develop. Co. v. Redel, 369 S.W.2d 252 (Mo. 1963).
9 United States v. 43.12 Acres of Land, More or Less, 554 F. Supp. 1039 (W.D. Mo. 1983); Chase v. Fania, 675 S.W.2d 87 (Mo. Ct. App. 1984).
10 Frain v. Brda, 863 S.W.2d 17 (Mo. Ct. App. 1993).
11 Id. & Loumar Develop. Co. v. Redel, 369 S.W.2d 252 (Mo. 1963).