ABANDOMENT OF EASEMENTS

PRESENTED AT IRWA INTERNATIOAL CONFERENCE 2009

IMPORTANANCE OF EASEMENTS  EASEMENTS ARE A PROPERTY RIGHT  JUST LIKE A FEE SIMPLE  IF YOU SEE ONE IT SHOULD WAKE YOU UP

INGORING AN EASEMENT CAN BE COSTLY  IT COST ONE CLIENT 1.9 MILLION DOLLARS  JUST BECAUSE YOU ARE NOT GOING TO BUILD A BUILDING ON IT, DOES NOT MEAN THAT EASEMENTS ARE NOT IMPORTANT

CREATION OF EASEMENTS

 EXPRESS GRANT  ESSTOPPEL  PRESCRIPTION  CONDEMNATION  IMPLICATION  NECESSITY  PLATTING

TYPES OF TERMINATION

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MERGER

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CONDEMNATION

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ABANDONMENT

WHAT IS AN EASEMENT?

NON-POSSESSORY RIGHT TO USE THE LAND OF ANOTHER FOR A SPECIFIC PURPOSE

WHERE TO LOOK FIRST FOR ABANDONMENT  LOCAL LAW  METHOD OF CREATION  EXPRESS GRANT-CREATING DOCUMENT   ESSTOPEL-LOCAL LAW PRESCRIPTION-LOCAL LAW

CREATING DOUCMENT

 TEMORARY CONSTRUCTION EASEMENT  PURPOSE  NEW CLAUSE  “NON-USE FOR STATED PURPOSE FOR A PERIOD OF TIME CONSTITUES ABANDONMENT

AN EXAMPLE

 “ IT IS HEREBY AGREED BETWEEN THE PARTIES THAT IF THE EASEMENT CREATED HEREIN IS NOT USED FOR ANY OF THE STATED PURPOSES FOR 5 YEARS THAT THE EASEMENT HAS BEEN ABANDONED AND GRANTOR OWNS THE PROPERTY FREE AND CLEAR OF THE EASEMENT”

THE LAW OF ABANDONMENT IS A MYSTERY  IN MOST STATES  AT COMMON LAW

IMPORTANT PROPERTY RIGHTS CHANGE BECOMES OBSOLETE-OILFIELD GOES DRY MATERIAL USED IN THE EASEMENT CAN BE SALVAGED BECOMES A LIABALITY-TAXABLE, BUT NO PROFIT NO LONGER NEEDED-ROADWAY NO LONGER USED

ABANDONMENT DEFINED

NON-USE WITH THE INTENT TO ABANDON

NON-USE

 EASY TO PROVE  CAN BE USED TO SHOW THE INTENT TO ABANDON  NON-USE ALONE IS NOT ABANDONMENT

INTENT TO ABANDON

 HARD TO PROVE INTENT  CIRCUMSTANCES SURROUNDING IS USED TO PROVE INTENT     NON-USE LACK OF MAINTENACE REASON FOR EASEMENT NO LONGER EXISTS IMPOSSIBLITY OF PURPOSE OF EASEMENT

 ACCIDENT

MENTAL STATE

 NEGLIGENCE  RECKLESSNESS  INTENTIONAL

MENTAL STATE IN A DEATH

    ACCIDENT-NO ONE PAYS NEGLIGENT- REASONABLE MAN TEST RECKLESS-HIGHER DEGREE OF CULPLABITY INTENTIONAL-HIGHEST DEGREE OF CUPLABITY

PROVING INTENT

  COURT LOOKS AT THE ACTS OF THE OWNER OF THE EASEMENT COURTS HAVE HELD THAT STANDARD OF PROOF IS:  PREPONDERNCE OF EVIDENCE  CLEAR AND SATISFACTORY EVIDENCE  CLEAR AND DEFINTE PROOF

CONCEPT OF ABANDONMENT THE RESULT OF CONFLICTING INTEREST  DOES A PROPERTY OWNER HAVE A DUTY TO USE HIS/HER PROPERTY?

 SHOULD THE PROPERTY REMAIN ENCUMBERED WITH AN EASEMENT THAT IS NO LONGER BEING USED?

CONCEPT OF ABANDONMENT A RESULT OF CONFLICTING INTEREST

 WHY DO YOU WANT EASEMENT ABANDONED?

CENTER OF REFINIES IN UNITED STATES  MOST WERE BUILT IN LATE 30S AND EARLY 40S  SOME HAVE NOT BEEN USED FOR 40 YEARS

FEW COURTS HAVE FACED THIS PROBLEM  MOST THAT HAVE FACED IT AGREE THAT THIS IS A FACT QUESTION NOT A QUESTION OF LAW JURY MUST ANSWER THE QUESTION OF INTENT THIS MEANS EVERY ABANDONMENT QUESTION HAS TO BE DECIDED IN A SEPARATE TRIAL

ADVERSE POSSESSION V. ABANDONMENT    IN SOME JURISDICTION YOU MUST COMPLY WITH ADVERSE POSSESSION RULES TO PROVE ABANDONMENT CANNOT ADVERSELY POSSESS AGAINST THE GOVERNMENT SAME RULES OF POSSESSION AS ADVERSE POSSESSION

SURFACE EASEMENTS

 IT IS EASIER TO PROVE POSSESSION OF AN EASEMENT THAT USES THE SUFACE ONLY  HOW DO YOU POSSESS A PIPELINE, WATERLINE OR AN UNDERGOUND COMMUICATIONS WIRE  REMEMBER IT HAS TO BE EXCLUSIVE POSSESSION

 GRAND LAKE GATHERING COMPANY V. GRAY ABANDONMENT OF ROAD EASEMENT  

NON USE-FARMERS HAD FENCED THE ROAD PLAINTIFFS PORTION HAD BEEN FENCED FOR 20 YEARS

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PLAINTIFF’S PORTION HAD BEEN ABANDONED BY THE COUNTY PIPELINE COMPANY ATTEMEPTED TO USE THE ROADWAY EASEMENT BRIDGE OVER MAJOR RIVER HAD WASHED OUT AND NEVER REPAIRED NEW ROAD TOOK THE TRAFFIC

ACCESS EASEMENT

    OWNERS CLAIM EASEMENT FOR ALL PURPOSES COURT HELD THAT EASEMENT WAS ONLY TO ENTER PROPERTY TO LOAD AND UNLOAD RAILROAD CARS RAILROAD TOOK UP TRACK THEREFORE IT BECAME IMPOSSIBLE TO GET TO EASEMENT COURT HELD EASEMENT WAS ABANDONED BECAUSE OF IMPOSSIBLITY OF INTENDED USE

HENDERSON V. LE DUKE

 A CHANGE IN USE MAY CONSITUTE ABANDONMENT  USING A WATERLINE EASEMENT TO PUT IN UNDERGROUND COMMUICATION LINES  CHANGING THE USE OF A ROADWAY EASEMENT TO A PARK

SHAW V. WILLIAMS

 ABANDONMENT MAY OCCUR WHEN THE PURPOSE BECOMES IMPOSSIBLE OR HIGHLY IMPROBABLE  EASEMENT TO STORE WATER TO USE IN RAILROAD STEAM ENGINES  WHEN RAILROADS WENT TO DESIEL, EASEMENT ABANDONED

BREWER AND TAYLOR

 OWNER OF RAILROAD EASEMENT CONVEYED THE EASEMENT TO A PRIVATE ENTITY  COURT HELD ABANDONMENT BECAUSE THEY HAD PREVIOUSLY HELD THAT THE CONVEYANCE OF A PUBLIC EASEMENT TO A PRIVATE ENTITY CONSTITUED ABANDONMENT

HOW TO PROTECT YOURSELF FROM LOSING A PIPELINE EASEMENT TO ABANDONMEN     IS THE LINE MERELY IDLE OR COMPLETELY ABANDONED HOW LONG HAS IT BE IDLE OR ABANDONED DOES THE COMPANY MAINTAIN, TEST AND/OR PATROL THE LINE DOES THE COMPANY SHOW THE LINE OR EASEMENT AS AN ASSET AND/OR PAY TAXES

TESTS FOR PIPELINE EASEMENT ABANDONMENT    (CONT.) ARE THERE OTHER ACTIVE LINES IN THE EASEMENT HAS THE COMPANY CONSTRUCTED NEW LINES IN ANOTHER EASEMENT TO REPLACE IT HAS THE COMPANY IDLED OR ABANDONED THE FACILITIES AT EITHER END OF THE LINE

TESTS FOR PIPELINE EASEMENT ABANDONMENT    DOES THE CONDITION OF THE LINE MAKE IT COST PROHIBITIVE TO USE THE LINE HAS THE COMPANY REALEASED OR ABANDONED OTHER SEGMENTS OF THE EASEMENT DOES THE COMPANY HAVE PLANS TO USE THE LINE OR PLACE OTHER LINES IN THE EASEMENT IN THE FUTURE

REPLACEMENT OF EASEMENTS  EASEMENT REPLACED BECAUSE FREEWAY EXPANSION COVERED UP THE OLD EASEMENT  NEWLY ACQUIRED EASEMENT IN THE WRONG PLACE TO FIT WITH AN OVERPASS

PROPOSED UNDERPASS

FIRST RIGHT OF WAY EASEMENT

WHAT IS ABANDONMENT?

 DETERMINED ON A CASE BY CASE BASIS  COURTS HAVE NOT GIVEN US A CLEAR PICTURE   ABANDONMENT IS TRULY A QUESTION OF FACT THE ONLY CERTIANITY IS UNCERTAINTY