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Creating and Terminating Easements & Profits

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Other web pages described the characteristics of an easement, profit and license and the transfer of property rights.  This page overviews how easements are created and terminated.

Creating an Easement (acquiring the right to a limited use of someone else's land)

  • Express Grant -- "I grant you an easement to use this roadway on my land"
  • Reservation -- "I deed ownership of this land to you but reserve the right to drive on the roadway on the land."
  • Prescription -- "The American Law Institute suggests that a use of land creates an easement by prescription provided the use is (1) adverse, (2) continuous and uninterrupted, and (3) for the period of prescription." Nagel v. Emmons County ND Water Resource District, 474 N.W.2d 046 (ND 1991)
    • Also see Fischer v. Berger, 2006 ND 48: "Under North Dakota law, a use of land creates an easement by prescription if the use is adverse, continuous and uninterrupted, and for the 20 year period of prescription." This case discussed whether the use was adverse.
  • Implication -- land was originally owned by one person before a portion was transferred to another person, and the easement must be necessary to access land.
    • Courts are reluctant to help grantor who could have solved the problem by reserving an easement as part of the land transfer.
    • North Dakota may NOT be reluctant:  "We initially consider Mougey's claims for an implied easement. We recently recognized two types of implied easements--an easement implied from a preexisting use and an easement by necessity. The elements of an easement implied from a preexisting use are "'unity of title of the dominant and servient tenement and a subsequent severance; apparent, permanent, and continuous use; and, the easement must be important or necessary for the enjoyment of the dominant tenement.'"  In Griffeth (quoting 25 Am.Jur.2d Easements and Licenses 36 (1996)), we outlined the elements of an easement by necessity:  "A way of necessity or easement by necessity: "'arises where there is a conveyance of a part of a tract of land of such nature and extent that either the part conveyed or the part retained is shut off from access to a road to the outer world by the land from which it is severed or by this land and the land of strangers.'" "
    • Mougey Farms v. Kaspari, 1998 ND 118, 579 N.W.2d 583

Excerpt by Robert P. Achenbach, Jr., Agricultural Law Update 23:9, September 2006. EASEMENT. The plaintiffs sold 77 acres of a 117-acre farm to the defendants and retained the unsold portion. The retained portion did not have access to any roads except through the 77 acres sold to the defendants. The sales agreement provided that the plaintiffs would have a 40-foot wide easement through the defendants' property but did not specify the location because the defendants did not know where they were going to locate their residence. During the subsequent year while the defendants were deciding the location of their house, the plaintiffs used one of three roads through the defendants' property to access their property. The defendants eventually decided to locate their house near the road used by the plaintiffs and wanted the easement to be located on another road of lesser quality away from the house. The trial court awarded the easement to the plaintiffs on the road near to the house on the basis of strict necessity. Although the appellate court ruled that the trial court misapplied the doctrine of strict necessity because the easement was created by agreement, the appellate court held that the choice of the road nearest to the house was the correct choice in that the other roads were not suitable for transporting farm machinery. Beery v. Shinkle, 2006 Mo. App. LEXIS 808 (Mo. Ct. App. 2006). End of Excerpt.

Scope of Easement

Either explicitly or implicitly, the duration and permissible use of an easement will be determined. (N.D.C.C. 47-05-02.1).

The "scope of an easement" refers to the breadth of the "limited use" associated with the easement. For example, the "scope of the easement" or the "scope of the limited use" is expected to be defined in the document that creates an easement by express grant or by reservation.  The scope of an easement created by prescription is defined or determined by the type of ongoing use that led to the easement by prescription.  If I was crossing your land to reach my agricultural land and I did it long enough without your permission to acquire an easement by prescription, the scope of the easement would be "to cross your land to reach the agricultural land". This easement by prescription would not allow me to construct a powerline along that pathway.

North Dakota statutory law provides that the scope of an easement by prescription can be sufficiently broad so to establish a public road; see N.D.C.C. §24-07-01 and Home of Economy v. Burlington Northern, 2010 ND 49.

Related topic -- section line as public roadway, N.D.C.C. §24-07-03.

Record an Easement

An easement is an interest in real property and must be recorded.  An easement created by express grant or reservation would include a document, such as a deed, that can be recorded so the public is aware that an easement exists.  An easement by prescription would likely be documented by a court order following a quiet title action (as discussed on another web page).

Transfer of Easement

N.D.C.C. 47-10-11. A transfer of real property [a dominant tenement] passes all easements attached thereto ...

Terminating an Easement (N.D.C.C. 47-05-12 )

Easements do not last forever.  The following lists indicates how an easement can terminate.

  • Merge - easement will terminate by merger if the easement and servient tenement are owned by the same person (N.D.C.C. 47-05-06)
  • Release - easement will terminate if the owner of the easement transfers the property right (the easement) back to the owner of the servient tenement
  • Abandonment - easement will terminate if the owner of the easement abandons the right; that is, the easement will be released by implication.  Evidence of abandonment include actions that indicate the owner of the easement no longer intends to use, enforce, or claim the right to use the property of the servient tenement; non-use can be one indicator of intent to abandon.
    • Abandonment is not based on the length of time of non-use; is it based on what the owner of the easement is thinking when he or she quit using the easement. Abandonment is when the owner of the easement no longer intends to retain the property right.

      But because we do not know what is going on in someone's mind, we have to rely on factors we can observe, such as the length of time that the easement owner is not using the easement. The period of non-use can be considered, along with other factors relating to the non-use, to interpret or understand what might have been the thoughts of the easement owner.

      For example, if the easement was not used for several years because it was unusable due to extraordinary wet conditions throughout that time, it may be appropriate to conclude that the easement owner has no intent to abandon the easement. However, if the easement owner quit using an easement and built an alternative path, and then 6 months later, the easement, by coincidence, became unusable due to wet conditions, it may be appropriate to conclude that the easement owner was preparing to abandon the easement.

      Abandonment is determined by whatever facts can help indicate what the easement owner was thinking.

    • Generally, abandonment of a railroad right of way is a question of intent, and the most significant indicia of abandonment is the nonuse of the right of way for railroad purposes. Nowling v. BNSF Railway, 2002 ND 104, 646 N.W.2d 719
  • Expiration of time - North Dakota limits easements to a duration of 99 years (N.D.C.C. 47-05-02.1)
    • Some states allow easements to be permanent; that is, they do not expire.
    • North Dakota has some shorter easements, for example,
      • "The duration of an easement for a waterfowl production area acquired by the federal government, and consented to by the governor or the appropriate state agency after July 1, 1985, may not exceed fifty years. The duration of a wetlands reserve program easement acquired by the federal government pursuant to the Food, Agriculture, Conservation, and Trade Act of 1990 after July 1, 1991, may not exceed thirty years." (N.D.C.C. §47-05-02.1(2)).

 

Creating and Terminating a License

Licenses are often created quite informally, e.g., an oral statement.

A license terminates 1) according to its stated expiration time, 2) when revoked by the grantor (recall that a basic characteristic of a license is that it can be terminated), 3) after a reasonable length of time, and 4) upon the death of either party (that is, a license is not considered property and will not survive beyond the lifetime of either person).

A license usually is not considered part of the land (not part of the real property interest) and will not be recorded.

Summary of Key Points

  • Creating or terminating an easement involves the transfer of a stick in the bundle of rights.
  • Easements can be created or terminated explicitly or implicitly.

 

Last updated March 20, 2010

   
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