Legal Notes: Easements & Plats of Subdivision
Professional Surveyor Magazine - February 2000
James J. Demma, LS, Esq.
As I have written before, my legal research into boundary related subjects takes me across the country on some metaphysical trips looking into all types of situations from different states. I have researched reported decisions from Maryland (my home state) to California, and the one thing that I can conclude from these case studies is that there appears to be a common law on these surveying related subjects, with some minor exceptions for certain local rules. One should keep in mind that any of these cases could have been decided in another state with the same probable outcome, as the general principals of our law appear to remain the same throughout the many jurisdictions involved.
Although I have written often on the subject of easements in the column, the Florida case, captioned as Estate of Mary Grace Johnston v. TPE Hotels, Inc., 719 So.2d 22 (Fla.App. 5 Dist. 1998), appears to be very important for those surveyors involved with the preparation of plats of subdivision and the relationship of the platted property to existing easements.
The facts of this case are that the appellant, Mary Grace Johnston, appealed from an adverse final judgment in a quiet title suit, in which she sought to defend and establish her rights, as the owner of the claimed dominant tenement to a perpetual easement over the claimed servient tenement, now owned by TPE Hotels. The trial court ruled that the easement had been terminated by virtue of various doctrines, such as: platting without showing the easement on the plat, estoppel by deed, novation, and abandonment. The District Court of Appeals of Florida affirmed the ruling by the trial court.
The important question on appeal was whether the trial court correctly ruled that an express reservation of a perpetual easement created in a deed of record is extinguished when the owner of the dominant tenement joins with the owner of the servient tenement to dedicate and record a plat encompassing both of their properties, which does not disclose, or show the perpetual easement, and successor title holders of the servient tenement not privy to the original parties' thoughts and intents, purchase the property in reliance on the plat.
The property encompassing the disputed dominant and servient tenements was formerly owned by John Johnston, Mary Grace's husband, in the 1960's. It was composed of three tracts of land—2, 3. and 4—which were described by reference to metes, bounds and surveys. In February 1996, John and Mary Grace conveyed tract 3 to Osceola Inns Corporation by a warranty deed, which was duly recorded. In the deed, John expressly reserved, as to tract 3 (as well as tract 2) the right to use tracts 2 and 3, for purposes of ingress and egress to and from his adjacent lands (tracts 2 and 4). That is, a reserved ingress/egress easement was established across tracts 3 and 2 for the benefit of tracts 2 and 4.
Shady Deal Subdivision
In 1966 Osceola Inns and John executed and recorded a plat of subdivision, which included tracts 2, 3 and 4 and other property owned by John. It was designated the "Shady Deal Subdivision"! The plat did not change the configuration of tracts 2, 3 and 4, except to call them lots rather than tracts. However, there is no reference or delineation to the perpetual easement for ingress and egress over lot 3 on the plat.
John testified at trial that he never intended to release, limit or extinguish the perpetual easement. He also noted that the reason the easement was not shown on the plat was because he intended it be a private easement only and not one dedicated to the public.
In 1973 John conveyed lots 2 and 4 to Loranda Properties, Inc., and in 1977 Loranda conveyed lots 2 and 4 to Mary Grace. None of these deeds mentioned the private perpetual easement over lot 3, although they need not have done so because had the easement survived, it would have passed as appurtenant to the dominant tenements (lots 2 and 4). Subsequently, TPE Hotels became the owner of lot 3. The deed to TPE Hotels, conveying lot 3 in the Shady Deal Subdivision, according to the plat thereof (with references to Plat Book and Page), was "subject to: liens, encumbrances, covenants, restrictions and easements of record…." At the trial of this case, TPE's executive officer testified that prior to his corporation's purchase of lot 3, he had checked the Shady Deal Plat and relied on it.
In this litigation over many issues, Mary Grace intervened in the proceedings, and counterclaimed to establish her right as the successor owner of the dominant tenement (lots 2 and 4) to use the perpetual easement across lot 3, which had been created by the reservation in the 1966 recorded deed to Osceola Inns. Mary Grace argued that because the perpetual easement was created by an empress reservation in a recorded deed in the chain of title of TPE Hotels, Inc., the owner of the alleged servient tenement, it was on notice of the easement and took subject to it. The general rule on this issue is that persons in the chain of title are on notice as to easements and limitations created by recorded deeds in their chain of title, and they are estopped to claim otherwise, absent additional circumstances.
The Appeals Court said that:
…the plat of record did not disclose the access easement over lot 3, in any form or manner. And, the owner of the servient tenement and the owner of the dominant tenement both joined in the execution, dedication and acknowledgement of the plat, "in the same manner in which deeds are required to be executed,"… Although no "merger" occurred since there was no unity of title between Johnston and Osceola Inns, their actions in platting both tenements and omitting mention of the prior recorded easement should be construed against them.
In the conclusion of the Appeals Court's decision is a wonderful description, in my estimation, of the purpose for and what a plat of subdivision should show. I feel that the following language from the Court's opinion would apply to the subdivision of property anywhere in this country, with some adjustment to particular state laws and local ordinances, and all surveyors should take heed therefrom, to wit:
"… since both of the owners of the servient and dominant tenements joined in the dedication of the plat and the plat failed to disclose the easement, they should be held, as against subsequent purchasers pursuant to the plat without notice, to the representation of the subdivision, as shown on the recorded map. A plat is a representation of the subdivision, as exact and complete as possible. It is intended to disclose details, exact location of boundaries, and it must be prepared by a civil engineer or competent surveyor. Lots and streets must be shown, and any parcels excepted must be so noted. The purpose of the statutes and the public policy of this state [Florida] is to protect subsequent purchasers of property in the subdivision so that by studying the plat or map they can determine what rights and burdens are imposed on the property by the dedicators.
Covering All the Bases
There are a lot of lessons to be learned by the above language from this opinion, and one such lesson would be to always rely on a complete and certified report of title for the property that is being subdivided. In that way, the surveyor can be sure to include all of those restrictions and easements of record that may affect the subject property.
There were other issues discussed in this case that would be interesting to our readers, dealing with estoppel, titles, novation, and abandonment, but space limits my explanation of this case. Perhaps in a future column I will discuss this case in more detail. If there is a particular legal topic that you may wish that I discuss in this column, please write to me in care of the Editor.
James J. Demma is an attorney with offices located in Rockville, Maryland. Mr. Demma is also a registered professional land surveyor in the state of Maryland, and a Contributing Editor for the magazine.
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