ABANDOMENT OF ABANDOMENT OF EASEMENTSEASEMENTS

PRESENTED AT IRWA PRESENTED AT IRWA INTERNATIOAL CONFERENCE INTERNATIOAL CONFERENCE

20092009

IMPORTANANCE OF IMPORTANANCE OF EASEMENTSEASEMENTS

EASEMENTS ARE A EASEMENTS ARE A PROPERTYPROPERTY RIGHT RIGHT

JUST LIKE A FEE JUST LIKE A FEE SIMPLESIMPLE

IF YOU SEE ONE IT IF YOU SEE ONE IT SHOULD WAKE SHOULD WAKE YOU UPYOU UP

INGORING AN EASEMENT CAN INGORING AN EASEMENT CAN BE COSTLYBE COSTLY

IT COST ONE CLIENT 1.9 MILLION IT COST ONE CLIENT 1.9 MILLION DOLLARSDOLLARS

JUST BECAUSE YOU ARE NOT GOING JUST BECAUSE YOU ARE NOT GOING TO BUILD A BUILDING ON IT, DOES TO BUILD A BUILDING ON IT, DOES NOT MEAN THAT EASEMENTS ARE NOT MEAN THAT EASEMENTS ARE NOT IMPORTANTNOT IMPORTANT

CREATION OF EASEMENTSCREATION OF EASEMENTS

EXPRESS GRANTEXPRESS GRANT

PRESCRIPTIONPRESCRIPTION

CONDEMNATIONCONDEMNATION

IMPLICATIONIMPLICATION

ESSTOPPELESSTOPPEL

NECESSITYNECESSITY

PLATTING PLATTING

TYPES OF TERMINATIONTYPES OF TERMINATION

MERGERMERGER

CONDEMNATIONCONDEMNATION

ABANDONMENT

WHAT IS AN EASEMENT?WHAT IS AN EASEMENT?

NON-POSSESSORY RIGHT TO USE THE NON-POSSESSORY RIGHT TO USE THE

LAND OF ANOTHER FOR A SPECIFIC LAND OF ANOTHER FOR A SPECIFIC

PURPOSEPURPOSE

WHERE TO LOOK FIRST FOR WHERE TO LOOK FIRST FOR ABANDONMENTABANDONMENT

LOCAL LAWLOCAL LAW

METHOD OF CREATIONMETHOD OF CREATION EXPRESS GRANT-CREATING DOCUMENTEXPRESS GRANT-CREATING DOCUMENT ESSTOPEL-LOCAL LAWESSTOPEL-LOCAL LAW PRESCRIPTION-LOCAL LAWPRESCRIPTION-LOCAL LAW

CREATING DOUCMENTCREATING DOUCMENT

TEMORARY CONSTRUCTION TEMORARY CONSTRUCTION EASEMENTEASEMENT

PURPOSEPURPOSE

NEW CLAUSENEW CLAUSE ““NON-USE FOR STATED PURPOSE FOR A NON-USE FOR STATED PURPOSE FOR A

PERIOD OF TIME CONSTITUES PERIOD OF TIME CONSTITUES ABANDONMENTABANDONMENT

AN EXAMPLEAN EXAMPLE

“ “ IT IS HEREBY AGREED BETWEEN IT IS HEREBY AGREED BETWEEN THE PARTIES THAT IF THE EASEMENT THE PARTIES THAT IF THE EASEMENT CREATED HEREIN IS NOT USED FOR CREATED HEREIN IS NOT USED FOR ANY OF THE STATED PURPOSES FOR ANY OF THE STATED PURPOSES FOR 5 YEARS THAT THE EASEMENT HAS 5 YEARS THAT THE EASEMENT HAS BEEN ABANDONED AND GRANTOR BEEN ABANDONED AND GRANTOR OWNS THE PROPERTY FREE AND OWNS THE PROPERTY FREE AND CLEAR OF THE EASEMENT”CLEAR OF THE EASEMENT”

THE LAW OF ABANDONMENT IS THE LAW OF ABANDONMENT IS A MYSTERYA MYSTERY

IN MOST STATESIN MOST STATES

AT COMMON LAWAT COMMON LAW

IMPORTANT PROPERTY RIGHTS IMPORTANT PROPERTY RIGHTS CHANGECHANGE

BECOMES OBSOLETE-OILFIELD GOES DRYBECOMES OBSOLETE-OILFIELD GOES DRY

MATERIAL USED IN THE EASEMENT CAN BE MATERIAL USED IN THE EASEMENT CAN BE SALVAGEDSALVAGED

BECOMES A LIABALITY-TAXABLE, BUT NO BECOMES A LIABALITY-TAXABLE, BUT NO PROFITPROFIT

NO LONGER NEEDED-ROADWAY NO LONGER NO LONGER NEEDED-ROADWAY NO LONGER USEDUSED

ABANDONMENT DEFINEDABANDONMENT DEFINED

NON-USENON-USE

WITH THE INTENT TO ABANDONWITH THE INTENT TO ABANDON

NON-USENON-USE

EASY TO PROVEEASY TO PROVE

CAN BE USED TO SHOW THE INTENT CAN BE USED TO SHOW THE INTENT TO ABANDONTO ABANDON

NON-USE ALONE IS NOT NON-USE ALONE IS NOT ABANDONMENTABANDONMENT

INTENT TO ABANDONINTENT TO ABANDON

HARD TO PROVE INTENTHARD TO PROVE INTENT

CIRCUMSTANCES SURROUNDING IS CIRCUMSTANCES SURROUNDING IS USED TO PROVE INTENTUSED TO PROVE INTENT NON-USENON-USE LACK OF MAINTENACELACK OF MAINTENACE REASON FOR EASEMENT NO LONGER REASON FOR EASEMENT NO LONGER

EXISTSEXISTS IMPOSSIBLITY OF PURPOSE OF EASEMENTIMPOSSIBLITY OF PURPOSE OF EASEMENT

MENTAL STATEMENTAL STATE

ACCIDENTACCIDENT

NEGLIGENCENEGLIGENCE

RECKLESSNESSRECKLESSNESS

INTENTIONALINTENTIONAL

MENTAL STATE IN A DEATHMENTAL STATE IN A DEATH

ACCIDENT-NO ONE PAYSACCIDENT-NO ONE PAYS NEGLIGENT- REASONABLE MAN TESTNEGLIGENT- REASONABLE MAN TEST RECKLESS-HIGHER DEGREE OF RECKLESS-HIGHER DEGREE OF

CULPLABITYCULPLABITY INTENTIONAL-HIGHEST DEGREE OF INTENTIONAL-HIGHEST DEGREE OF

CUPLABITYCUPLABITY

PROVING INTENTPROVING INTENT

COURT LOOKS AT THE ACTS OF THE COURT LOOKS AT THE ACTS OF THE OWNER OF THE EASEMENTOWNER OF THE EASEMENT

COURTS HAVE HELD THAT COURTS HAVE HELD THAT STANDARD OF PROOF IS:STANDARD OF PROOF IS: PREPONDERNCE OF EVIDENCEPREPONDERNCE OF EVIDENCE

CLEAR AND SATISFACTORY EVIDENCECLEAR AND SATISFACTORY EVIDENCE

CLEAR AND DEFINTE PROOFCLEAR AND DEFINTE PROOF

CONCEPT OF ABANDONMENT CONCEPT OF ABANDONMENT THE RESULT OF CONFLICTING THE RESULT OF CONFLICTING

INTERESTINTEREST DOES A PROPERTY OWNER HAVE A DOES A PROPERTY OWNER HAVE A

DUTY TO USE HIS/HER PROPERTY?DUTY TO USE HIS/HER PROPERTY?

SHOULD THE PROPERTY REMAIN SHOULD THE PROPERTY REMAIN ENCUMBERED WITH AN EASEMENT ENCUMBERED WITH AN EASEMENT THAT IS NO LONGER BEING USED?THAT IS NO LONGER BEING USED?

CONCEPT OF ABANDONMENT A CONCEPT OF ABANDONMENT A RESULT OF CONFLICTING RESULT OF CONFLICTING

INTERESTINTEREST

WHY DO YOU WANT EASEMENT WHY DO YOU WANT EASEMENT ABANDONED?ABANDONED?

CENTER OF CENTER OF REFINIES IN REFINIES IN UNITED STATESUNITED STATES

MOST WERE BUILT MOST WERE BUILT IN LATE 30S AND IN LATE 30S AND EARLY 40SEARLY 40S

SOME HAVE NOT SOME HAVE NOT BEEN USED FOR 40 BEEN USED FOR 40 YEARSYEARS

FEW COURTS HAVE FACED FEW COURTS HAVE FACED THIS PROBLEMTHIS PROBLEM

MOST THAT HAVE FACED IT AGREE MOST THAT HAVE FACED IT AGREE THAT THIS IS A FACT QUESTION NOT THAT THIS IS A FACT QUESTION NOT A QUESTION OF LAWA QUESTION OF LAW

JURY MUST ANSWER THE QUESTION OF JURY MUST ANSWER THE QUESTION OF INTENTINTENT

THIS MEANS EVERY ABANDONMENT THIS MEANS EVERY ABANDONMENT QUESTION HAS TO BE DECIDED IN A QUESTION HAS TO BE DECIDED IN A SEPARATE TRIALSEPARATE TRIAL

ADVERSE POSSESSION V. ADVERSE POSSESSION V. ABANDONMENTABANDONMENT

IN SOME JURISDICTION YOU MUST IN SOME JURISDICTION YOU MUST COMPLY WITH ADVERSE POSSESSION COMPLY WITH ADVERSE POSSESSION RULES TO PROVE ABANDONMENTRULES TO PROVE ABANDONMENT

CANNOT ADVERSELY POSSESS CANNOT ADVERSELY POSSESS AGAINST THE GOVERNMENTAGAINST THE GOVERNMENT

SAME RULES OF POSSESSION AS SAME RULES OF POSSESSION AS ADVERSE POSSESSIONADVERSE POSSESSION

SURFACE EASEMENTSSURFACE EASEMENTS

IT IS EASIER TO PROVE POSSESSION OF AN IT IS EASIER TO PROVE POSSESSION OF AN EASEMENT THAT USES THE SUFACE ONLYEASEMENT THAT USES THE SUFACE ONLY

HOW DO YOU POSSESS A PIPELINE, HOW DO YOU POSSESS A PIPELINE, WATERLINE OR AN UNDERGOUND WATERLINE OR AN UNDERGOUND COMMUICATIONS WIRECOMMUICATIONS WIRE

REMEMBER IT HAS TO BE EXCLUSIVE REMEMBER IT HAS TO BE EXCLUSIVE POSSESSIONPOSSESSION

GRAND LAKE GATHERING GRAND LAKE GATHERING COMPANY V. GRAYCOMPANY V. GRAY

ABANDONMENT OF ROAD EASEMENTABANDONMENT OF ROAD EASEMENT NON USE-FARMERS HAD FENCED THE NON USE-FARMERS HAD FENCED THE

ROADROAD PLAINTIFFS PORTION HAD BEEN FENCED PLAINTIFFS PORTION HAD BEEN FENCED

FOR 20 YEARSFOR 20 YEARS PLAINTIFF’S PORTION HAD BEEN PLAINTIFF’S PORTION HAD BEEN

ABANDONED BY THE COUNTYABANDONED BY THE COUNTY PIPELINE COMPANY ATTEMEPTED TO USE PIPELINE COMPANY ATTEMEPTED TO USE

THE ROADWAY EASEMENT THE ROADWAY EASEMENT BRIDGE OVER MAJOR RIVER HAD WASHED BRIDGE OVER MAJOR RIVER HAD WASHED

OUT AND NEVER REPAIREDOUT AND NEVER REPAIRED NEW ROAD TOOK THE TRAFFICNEW ROAD TOOK THE TRAFFIC

ACCESS EASEMENTACCESS EASEMENT

OWNERS CLAIM EASEMENT FOR ALL OWNERS CLAIM EASEMENT FOR ALL PURPOSESPURPOSES

COURT HELD THAT EASEMENT WAS ONLY COURT HELD THAT EASEMENT WAS ONLY TO ENTER PROPERTY TO LOAD AND TO ENTER PROPERTY TO LOAD AND UNLOAD RAILROAD CARSUNLOAD RAILROAD CARS

RAILROAD TOOK UP TRACK THEREFORE IT RAILROAD TOOK UP TRACK THEREFORE IT BECAME IMPOSSIBLE TO GET TO EASEMENTBECAME IMPOSSIBLE TO GET TO EASEMENT

COURT HELD EASEMENT WAS ABANDONED COURT HELD EASEMENT WAS ABANDONED BECAUSE OF IMPOSSIBLITY OF INTENDED BECAUSE OF IMPOSSIBLITY OF INTENDED USEUSE

HENDERSON V. LE DUKEHENDERSON V. LE DUKE

A CHANGE IN USE MAY CONSITUTE A CHANGE IN USE MAY CONSITUTE ABANDONMENTABANDONMENT

USING A WATERLINE EASEMENT TO PUT USING A WATERLINE EASEMENT TO PUT IN UNDERGROUND COMMUICATION IN UNDERGROUND COMMUICATION LINESLINES

CHANGING THE USE OF A ROADWAY CHANGING THE USE OF A ROADWAY EASEMENT TO A PARKEASEMENT TO A PARK

SHAW V. WILLIAMSSHAW V. WILLIAMS

ABANDONMENT MAY OCCUR WHEN ABANDONMENT MAY OCCUR WHEN THE PURPOSE BECOMES IMPOSSIBLE THE PURPOSE BECOMES IMPOSSIBLE OR HIGHLY IMPROBABLEOR HIGHLY IMPROBABLE

EASEMENT TO STORE WATER TO USE EASEMENT TO STORE WATER TO USE IN RAILROAD STEAM ENGINESIN RAILROAD STEAM ENGINES

WHEN RAILROADS WENT TO DESIEL, WHEN RAILROADS WENT TO DESIEL, EASEMENT ABANDONEDEASEMENT ABANDONED

BREWER AND TAYLORBREWER AND TAYLOR

OWNER OF RAILROAD EASEMENT OWNER OF RAILROAD EASEMENT CONVEYED THE EASEMENT TO A CONVEYED THE EASEMENT TO A PRIVATE ENTITYPRIVATE ENTITY

COURT HELD ABANDONMENT COURT HELD ABANDONMENT BECAUSE THEY HAD PREVIOUSLY BECAUSE THEY HAD PREVIOUSLY HELD THAT THE CONVEYANCE OF A HELD THAT THE CONVEYANCE OF A PUBLIC EASEMENT TO A PRIVATE PUBLIC EASEMENT TO A PRIVATE ENTITY CONSTITUED ABANDONMENTENTITY CONSTITUED ABANDONMENT

HOW TO PROTECT YOURSELF HOW TO PROTECT YOURSELF FROM LOSING A PIPELINE FROM LOSING A PIPELINE

EASEMENT TO ABANDONMENEASEMENT TO ABANDONMEN IS THE LINE MERELY IDLE OR COMPLETELY IS THE LINE MERELY IDLE OR COMPLETELY

ABANDONEDABANDONED HOW LONG HAS IT BE IDLE OR HOW LONG HAS IT BE IDLE OR

ABANDONEDABANDONED DOES THE COMPANY MAINTAIN, TEST DOES THE COMPANY MAINTAIN, TEST

AND/OR PATROL THE LINEAND/OR PATROL THE LINE DOES THE COMPANY SHOW THE LINE OR DOES THE COMPANY SHOW THE LINE OR

EASEMENT AS AN ASSET AND/OR PAY EASEMENT AS AN ASSET AND/OR PAY TAXESTAXES

TESTS FOR PIPELINE TESTS FOR PIPELINE EASEMENT ABANDONMENT EASEMENT ABANDONMENT

(CONT.)(CONT.) ARE THERE OTHER ACTIVE LINES IN ARE THERE OTHER ACTIVE LINES IN

THE EASEMENTTHE EASEMENT HAS THE COMPANY CONSTRUCTED HAS THE COMPANY CONSTRUCTED

NEW LINES IN ANOTHER EASEMENT NEW LINES IN ANOTHER EASEMENT TO REPLACE ITTO REPLACE IT

HAS THE COMPANY IDLED OR HAS THE COMPANY IDLED OR ABANDONED THE FACILITIES AT ABANDONED THE FACILITIES AT EITHER END OF THE LINEEITHER END OF THE LINE

TESTS FOR PIPELINE TESTS FOR PIPELINE EASEMENT ABANDONMENTEASEMENT ABANDONMENT

DOES THE CONDITION OF THE LINE DOES THE CONDITION OF THE LINE MAKE IT COST PROHIBITIVE TO USE MAKE IT COST PROHIBITIVE TO USE THE LINETHE LINE

HAS THE COMPANY REALEASED OR HAS THE COMPANY REALEASED OR ABANDONED OTHER SEGMENTS OF ABANDONED OTHER SEGMENTS OF THE EASEMENTTHE EASEMENT

DOES THE COMPANY HAVE PLANS TO DOES THE COMPANY HAVE PLANS TO USE THE LINE OR PLACE OTHER USE THE LINE OR PLACE OTHER LINES IN THE EASEMENT IN THE LINES IN THE EASEMENT IN THE FUTUREFUTURE

REPLACEMENT OF EASEMENTS REPLACEMENT OF EASEMENTS

EASEMENT REPLACED BECAUSE EASEMENT REPLACED BECAUSE FREEWAY EXPANSION COVERED UP FREEWAY EXPANSION COVERED UP THE OLD EASEMENTTHE OLD EASEMENT

NEWLY ACQUIRED EASEMENT IN THE NEWLY ACQUIRED EASEMENT IN THE WRONG PLACE TO FIT WITH AN WRONG PLACE TO FIT WITH AN OVERPASSOVERPASS

FIRST RIGHT OF WAY EASEMENT

PROPOSED UNDERPASS

WHAT IS ABANDONMENT?WHAT IS ABANDONMENT?

DETERMINED ON A CASE BY CASE BASISDETERMINED ON A CASE BY CASE BASIS

COURTS HAVE NOT GIVEN US A CLEAR COURTS HAVE NOT GIVEN US A CLEAR PICTUREPICTURE

ABANDONMENT IS TRULY A QUESTION ABANDONMENT IS TRULY A QUESTION OF FACTOF FACT

THE ONLY CERTIANITY IS UNCERTAINTYTHE ONLY CERTIANITY IS UNCERTAINTY