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paden cash
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In some necessary situations it is practice to describe an easement (or rights of ingress and egress) and reserve those rights to be dedicated to future estates at the time a conveyance is made.  I have even seen these filed of record even though they "technically" don't exist until title to the dominant estate is conveyed.  And in a few cases I have seen title companies act as if the easement exists since it will probably exist in possibly the near future. 

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aliquot
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Merger of title is usually applied in the reverse of how it  is being discussed here. Usually it comes up in situations like this: 

1. A landowner owns a parcel that is served by an easment across another's land.

2. The landowner acquires the servient parcel.

3.  The two parcels become owned by two separate owners.

4. The owner of the servient parcel sues to eject the owner of the dominant parcel.

Now, this us just conjecture becasue I've never seen a case addressing it, but I would think that if the landowner recorded an easment across his own land, thus entering it into the chain of title, and then sold a portion that would become the servient or the dominant parcel, a court would find that regardless of the technicality of the law, the intent was clear to make one parcel subject to the easment, and let it stand. 

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Lots of cases on this, which is why it's an issue.  The arguments are not about intent but about who can it be enforced against.

 

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RADAR
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This attorney seems to have a pretty good handle on it...

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Dave Karoly
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In California subdivision maps can't create private easements. They can dedicate easements to the public in the owner statement.

Suppose you have a two lot Minor Subdivision (called a Parcel Map in most counties). Parcel 1 depicts a 20' easement to Parcel 2. Normally Parcel 1 would convey with a reservation of the easement or Parcel 2 would convey together with the easement.

Further suppose through oversight Parcel 2 conveys forgetting to mention the easement, does it automatically come into existence since it is shown on the map?

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Tom Bushelman
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Walt Robillard preached against this sort of thing in a seminar I was at 15-20 years ago.  He even went so far as to say if a there is a pre-existing easement and a person ends up owning the dominant and servient estate, then the easement is automatically extinguished.

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In NY unopened paper streets on a subdivision map have been determined to be private easements for those lots bordering it.  Still not an easement over your own property, you are merely using your own property instead of an easement when travelling in front of your lot because title goes to center of road.  Also been held that the offer of dedication will not last forever and does expire after a long period of time, although no specific time has been specified to my knowledge, depends on circumstances. But a perpetual offer of dedication has been found to violate the rule against perpetuities.  The easement does not because it comes into existence on filing of the map and exists alongside the public easement (if dedication accepted) and survives discontinuance of public easement.

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kjypls
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Interesting Duane. I'm curious to know what your knowledge may be of how the rule against perpetuities would work with unopened "perpetual easements" for access granted 100+ years ago via condemnation proceedings. The dominant estate that condemned is the same, but the servient estate (sometimes multiple estates) have changed hands many times over the past century.

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If an easement was taken then it came into existence at the time, so the rule wouldn't apply.  You might look at abandonment of easement; the hard part of that is finding evidence of intent to abandon to go along with non-use.

Rule against perpetuities is basically that you can't place a possibility of a future burden on the property for an unlimited time period.  Comes from policy that in the U.S. we want people to have free and full use of lands in order to make the best use of them.  But the rule itself can be very complicated and attorneys have regularly avoided liability for screwing it up because it's so complicated. On the other hand the idea is pretty basic.  You can't sell a parcel and reserve the right to grant interests in it to others at some unspecified time in the future.  If I recall, some states have statutes that give a time period for different things, like subject to 99 year leases, 50 year limit on offers of dedication, etc..

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Dave Karoly
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That makes me wonder about a common device here...irrevocable offer of dedication. Where the City doesn't want the street R/W dedicated right now but anticipating future development they require an I.O.D. which they can demand the easement later.

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I imagine there's some statute that allows that, if that's the way they commonly do it.  But it's also the overuse of these kinds of executory interests (generally not transferable, hence reverter to the subdivision lots) that brought about RAP to begin with in 16th century England.  I wonder if there is a time limit on your I.O.D., I recall some States adopted 90 years for RAP but it was traditionally 21 years or 21 years after the death of a party to the transaction.  At any rate, a map without a time limit for offer of dedication of the roads would need something like the I.O.D. you mention, otherwise it would place a possible burden on the land in question forever. 

I got involved in the question consulting for a local Town 20 years ago or so.  Another surveyor (relying on our surveying texts) telling them no need to do anything with paper streets created but not accepted (1930's).  But cases were starting to turn up around the country where courts said no, too much time gone by.  So the Town went around and formally accepted any of these they thought might be useful in the future. I think they had to pay some of the current landowners to avoid problems.

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aliquot
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I wouldn't necessarily apply New York's courts reasoning to California. While state courts borrow from the same sources, and from each other, local custom varies significantly across the country, and courts dont often invladate local custom. 

For an example, in Alaska dedication to the public never goes away, regardless of actual use, or even possibility of use. The only way to vacate is through a rigorous public hearing process. 

Dave and Duane are both being very clear about the jurisdictions they are talking about, but this is great example of why blanket proclamations of the law on this board are not helpful. There is a reason our licences are not as portable as engineers. While most property laws are similar between any two states, there are many dramatic exceptions.

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I argue there's more in common than different, especially considering surveying.  RAP is clearly into lawyer territory, but still interesting for us.  Several States (Alaska being one, CA not last I knew) preclude RAP from applying under certain circumstances, but some States adopted a uniform statute and majority still use common law RAP.

The cases I found that helped my client make a wise decision were from several jurisdictions, and showed a certain trend. Not sure we had any on point in NY at the time.

I also told them I surveyed it and here's the location of the street whether it be in Alaska or NY or CA.

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Dave Karoly
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In California I would start with Witkin’s Summary of California Law, it’s probably in there.

Cal Jur probably has it too.

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CA code shows they adopted the uniform RAP statute, which excepts anything authorized by other statutes.  The IOD appears to be one of those legal fiction things.  If it's accepted then it's recorded and serves notice of an interest just like a conveyance.  But apparently doesn't bind the local gov to doing anything with it like an actual acceptance of dedication might.  And requires formal abandonment procedures as if it had been opened and used as a street.  Sounds exactly like what aliquot describes as Alaska procedure.  However, they do show time limits for streets that would connect to waterways (for some reason). Obviously the IOD was created specifically to get around the problems presented by RAP in regard to subdivision streets dedications.

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Dave Karoly
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Yep, but I think 1290 is a bit early.  My notes say 1535 statute of uses led to the rule. At any rate, I think it's a good rule.  But on the other hand, these unopened subdivision streets have to go away at some point in my view. 

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oops didn't read the second page.  will have to see what NY has done with this, but links to ny laws I had don't work anymore and all I find is unsearchable list of laws.  what have they broke now, geez.

 

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aliquot
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In Alaska it definitely does, and this is very common, often easements like this are placed on the plat because the platting authorities insist on it. platting authorities. A reference to to the plat includes all information on the plat. A private access easement across one lot for the benefit of another that was created by a plat can only be vacated by a replat. The plat would say something like, "easement for...., created by this plat". There have been cases where a replat to vacate an easement was recorded, but the deed refereed to the original plat, not the replat. This brought the easement back into existence.  

An Alaska deed for a lot rarely includes mention of the easements shown on the plat. 

The case is different for preexisting easements that are shown on the plat. They would say something , access easement for.... per BK XXX, PG XXX.  In this case the easement as shown on the plat is only as valid as the referred document, so if it was released by the dominant estate the fact that deeds will refer to the plat that shows the easement has no effect.  

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The following link is to a precedent decision regarding the subject.  Zanelli v McGrath may provide some guidance.

https://caselaw.findlaw.com/ca-court-of-appeal/1086581.html

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