Rules of the Game: Implied Easements
Professional Surveyor Magazine - November 2011
Knud Hermansen, LS, PhD, PE, Esq. and A. Richard Vannozzi
Part 1 | Part 3 | Part 4
Part 2: Grantor’s Road as Boundary
Readers are cautioned that they should investigate state cases dealing with the particular application of the law to determine how the law applies in your state. Many states have modified the common law that is presented here.
The previous article, subtitled “Deed Reference to a Subdivision Plat,” states that surveyors are often obligated to show the location and extent of easements that may not be expressly created. Standards such as the ALTA/ACSM Land Title Survey Standards require the surveyor to be aware of and to consider easements that may arise by implication (known as implied easements).
One often overlooked implied easement arises within the content of a deed description where:
1. the grantor conveys property calling for a private road as a boundary, and
2. the grantor owns the road at the time of the initial conveyance of the lot.
As a consequence, thegrantor gives the grantee an easement in the private road by implication.1
Consider this diagram showing a lot the grantor is conveying using the description shown. As a result of the underlined phrase in the description, the grantee of the lot obtains an appurtenant easement in the grantor’s road. The fact that the easement is not necessary for lot access is not significant in many states.
It is important for the surveyor to understand that once the appurtenant easement is created, it remains in favor of the lot. In other words, even though the ownership changes, the easement, once created, continues to benefit the lot.
When preparing descriptions, the surveyor should not mention the grantor’s road as a boundary. If the description does call for the grantor’s road, the surveyor should include a statement that there is no implied easement in the road (unless, of course, one is intended). In this example the word “grantor” is used when describing the lane for emphasis, but a surveyor who uses the term “along the lane” when the grantor happens to be the owner of the lane would create the same implied easement.
For surveyors preparing descriptions, knowing the nature as well as the extent of abutting ownerships is essential to avoid implying the conveyance of rights not intended by the client. This is one instance where ignorance of the law could subject the surveyor to liability.
When retracing a lot where the deed description originally called for the grantor’s road (or lane) as a boundary, the surveyor should be aware that the road (or lane) may be an appurtenant easement, and he or she should look for encroachments.
See e.g. Fowler v. Wilbanks, 48 S.W.3d 738 (Tenn, App. 2000); Glennon c. Mayo, 221 A.D.2d 504; 633 N.Y.S.2d 400 (1995): "An implied easement may arise over a private road where the road is one of the boundaries of the conveyed property." Maciey v. Woods, Del. Supr. 154 A.2d 901, 903 (1959). But see e.g., Tarolli v. Westvale Genesee, Inc. 6 N.Y.2d 32; 159 N.E.2d 558; 187 N.Y.S.2d 762 (1959); "When a grantor conveys land as bounded by a street or way, this is not merely a description by the grantor, and his heirs and those claiming under him are estopped to deny that there is a street or way to the extent of land so bounded on the way, and the grantee acquires by the deed a perpetual easement and right of passage on, up and over it" Frawley v. Forrest 310 Mass.446, (1941).
About the Authors
Knud Hermansen, LS, PhD, PE, Esq.Knud is a professor in the surveying engineering technology program at the University of Maine. He provides consulting services in the areas of boundary retracement, boundary litigation, roads, easements, property title, land development, and alternative dispute resolution.
A. Richard VannozziA. Richard Vannozzi is an assistant professor at the Thompson School of Applied Science at the University of New Hampshire. Richard has spent over 20 years in private practice where he focused on boundary, title and zoning dispute resolution and litigation before beginning his teaching career.
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