Implied Easements

In reporting on appellate cases from around the nation that may affect land surveyors, it seems that the subject most often written about concerns easements. Because this area of the law is so highly litigated, it would behoove us surveyors to understand as much as possible on this interesting subject.
In a recent case, cited as Perkins v. Fasig, 57 Conn.App. 71, 747 A.2d 54 (2000), the Appellate Court of Connecticut had an opportunity to decide certain issues concerning a most vexing subject—implied easements.
Generally, an easement is an interest in land, by virtue of a right in the owner of one parcel of land to use the land of another for a special purpose. Broadly stated, it is a restriction by the owner of a dominant estate, upon the property rights of the owner of a servient estate. But there are many different types of easements that may affect the title to a property, and they fall into the categories of expressed, reserved, implied, for necessary, and by prescription.
In the appeal to the Appellate Court of the Perkins case, the primary issue was whether the defendants had implied easements over a portion of a roadway owned by the plaintiff. The plaintiff, Perkins, brought this action to quiet title and to enjoin permanently all of the defendants from passing over a portion of the plaintiff's land known as "Spinning Wheel Lane."
The plaintiff acquired lot 16 in 1960 and lot 17 in 1976. The defendants acquired their lots in May, 1992. The trial court found that the plaintiff obtained a fee interest in lot 17 and a fee interest in that portion of Spinning Wheel Lane in dispute, and that she owned both the lot and the roadway at the time the defendants purchased their lots.

Intent to Establish Easements
The question presented to the Appellate Court was whether there was an intent to establish easements by virtue of Spinning Wheel Lane. The Court said that to make this determination, an examination had to be made of the deeds, maps, and recorded instruments introduced as evidence, as intent expressed in deeds and other recorded documents is a matter of law.
The Appellate Court first referred to, as a "well settled" principal of law, that:

Where an owner of land causes a map to be made of it upon which are delineated separate lots and streets and highways by which access may be had to them, and then sells the lots, referring in his conveyances to the map, the lot owners acquire the right to have the streets and highways thereafter kept open for use in connection with their lands.

Therefore, if a grantor promulgates a general plan for the development of a tract, and the plan designates streets by which the lots on the plan may be reached, the lot owners have an enforceable right to us the street to reach their lots.
In Perkins, the Appellate Court concluded that the defendants were not given express easements by deed over Spinning Wheel Lane, but that they have implied easements to pass and re-pass over that portion of the plaintiff's land known as Spinning Wheel Lane. The intent that they enjoy such easements can be implied from the maps, deeds and other recorded instruments submitted into evidence. Specifically quoting from the language of this case:

There are two principal factors to be examined in determining whether an easement by implication has arisen: (1) the intention of the parties; and (2) whether the easement is reasonably necessary for the use and normal enjoyment of the dominant estate…. The recorded instruments in this case manifest an intent to grant an easement necessary for the beneficial use and enjoyment of the defendants' property, otherwise landlocked.

The general "black letter" law concerning implied easements is best stated by saying that such easements are based on the principle that everything necessary to the reasonable enjoyment of the grant accompanies it by implication, and that when a grantor sells a parcel of land to a purchaser relying on apparent easements, one cannot later deny that the easements pass to the purchaser.

Obligations of the Surveyor
Also, surveyors should always keep in mind the duties and obligations of the surveyor with respect to all easements when performing an ALTA/ACSM Land Title Survey, as the Minimum Standard Detail Requirements (1999) for such requirements state at paragraph (5)(d) that "the identifying titles of all recorded plats, filed maps, right of way maps, or similar documents which the survey represents, wholly or in part, shall be shown…," and further state at paragraph (5)(h) that, "all easements evidenced by a Record Document which have been delivered to the surveyor shall be shown, both those burdening and those benefitting the property surveyed, indicating recording information…. Observable evidence of easements and/or servitudes of all kinds, such as those created by roads; rights-of-way… across the surveyed property and on adjoining properties if they appear to affect the surveyed property, shall be located and noted."

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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