This white paper is an essential practice guide for attorneys and landowners with access easement issues or potential issues. You can purchase it as an e-book from BarnesandNoble.com.
As important as access is to the enjoyment and value of real property, it is easy to take easements for granted. If you or a client needs to judicially establish a non-express easement for a dominant estate, it is certainly best to do so while you have living witnesses. If someone wants to terminate an easement across his servient estate, he can start the statute of limitations running on an adverse possession period by locking a gate or otherwise blocking access. This article encourages landowners and attorneys to survey existing situations with respect to access easements and keep an inventory and calendar of applicable statutes of limitations. A sample letter, survey form and evidence checklist are offered.
In drafting written easements and pleadings in easement litigation, we must appreciate the ambiguities and significant distinctions of the terms “right-of-way,” “easement,” “road” and “roadway,” and carefully select the appropriate term in context. “Right-of-way” may denote either a right of passage or a strip of land itself. When used in the sense of a “right of passage” it is virtually synonymous with “easement.” The Restatement of the Law (3d) Property: Servitudes (the “Restatement”) defines a servitude as “a legal device that creates a right or an obligation that runs with the land or an interest in land.” Section 1.1(1). Comment (d) adds:
The servitudes covered by this Restatement are easements, profits, and covenants that run with land. These are private-law devices, evolved over many centuries, that can be created by private individuals by contract, conveyance, estoppel, or prescription….
The Third Restatement, refining the discussion of easements in the First Restatement as interests in land, defines “easement” as follows: “An easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.” Section 1.2(1). An easement is not a piece of paper. The paper is the “grant” or the “deed” or the “agreement.” An easement is a device that creates a right, a particular kind of right. Easements can be for views, sunlight, access, etc. An easement is also not the road, and certainly not the surface of the road, or, as is usually the case in rural areas, the two-track. The definitions of both the words “road” and “roadway”, as defined in my Webster’s, distinguish the “way” or “path” or “course” of the road from the surface of the road (or, the tracks of the road), or the “roadbed” as that term is defined and distinguished in the definitions. The terms “road” and “roadbed” can be used interchangeably, but strictly speaking, the term road is broader than the term roadbed. Sanctions have been sought for failure to distinguish in a petition (a) the abstraction of an easement right to use another’s property from (b) the limitation of that right to a defined geographical part of the property over which the easement exists; and failure to make the distinction between (a) such a defined way, or road and (b) the physical surface of the road.