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Easement over an easement?  

tomchurch
(@tomchurch)
50+ posts Registered

So we're working on a local municipal rail trail project where the land owner is retaining rights in two spots to cross the easement he is giving to the municipality for the trail. The county lawyer keeps referring to these and correcting our descriptions to call them crossing easements. So we have a situation where he has an easement over his own property which...well...you know. How would you describe these crossings? The lawyer is pretty stubborn...

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Posted : March 20, 2017 1:03 pm
A Harris
(@a-harris)
5,000+ posts Registered

I would describe them with a metes and bounds with reference locations to the parent tract and assign any relation to stations along the rail trail and let the lawyer and anyone else call them what they want.

To me they would be a reservation made by the owner of the land to use for whatever purpose, and in this case it appears to be ingress and egress across the rail line easement.

0.02

RPLS NE Texas
d[-_-]b

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Posted : March 20, 2017 1:20 pm
paden cash
(@paden-cash)
5,000+ posts Registered

The nature of your basic easement is that it cannot restrict the fee owner from use and enjoyment of all his property...unless specifically addressed in the dedication and acceptance. An easement by definition cannot in itself restrict the underlying fee owner from use of the property. Rights of that nature are reserved for owners of the servient and not the dominant easement (estate).

I guess what I'm saying is that a limitation of crossing (due to the nature of the easement's use for a rail system) should be addressed in the owner's original grant of easement. It sounds as if the grantee of the easement is wanting to dedicate an easement back to the original grantor as if they own the property. Trust me, that's a bass-ackwards way to do things and is wrought with all sorts of pitfalls for both sides.

If the descriptions you are preparing are to be included within the original grant of easement rights to the municipality, I wouldn't see what you call them as important. Call them anything, like "crossing locations" or let the sh*t headed attorney call them anything he likes. But they are not "crossing easements". The municipality does not own the main route (you have stated it is merely an easement) and one cannot grant an easement over lands that one doesn't own.

Limiting access to the fee owner does occur, but it is almost almost exclusively the grantor's agreement and not a restriction by the grantee. If the municipality purchased the R/W in fee, this would be a completely different discussion.

"...I'm just amazed he even knew Jerusalem or Tel-Aviv existed..."
Paden Cash-disillusioned American voter

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Posted : March 20, 2017 1:25 pm
Bradl
(@bradl)
100+ posts Registered

I too would call them reservations

Brad Luken

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Posted : March 20, 2017 1:26 pm
Duane Frymire
(@duane-frymire)
1,000+ posts Registered

tomchurch, post: 419358, member: 10174 wrote: So we're working on a local municipal rail trail project where the land owner is retaining rights in two spots to cross the easement he is giving to the municipality for the trail. The county lawyer keeps referring to these and correcting our descriptions to call them crossing easements. So we have a situation where he has an easement over his own property which...well...you know. How would you describe these crossings? The lawyer is pretty stubborn...

If they are only giving an easement, then they can cross wherever they want to, they still own the property. Restrictions on the location of the crossings would not be easements; they would be deed restrictions or covenants. Something like "grantor agrees not to cross the easement conveyed at other than the following two locations, which agreement shall run with the land"

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Posted : March 20, 2017 2:01 pm
John Putnam
(@john-putnam)
500+ posts Registered

In this neck of the woods it is usually next to impossible to grant an easement to oneself, which is what you appear to be trying to do. I've worked on several projects owned by a power utility that is trying to sell off property. In order for them to create easements for existing utility features they have to stipulate all sort of contractual items requiring the purchaser to grant easements at the time of recording the sale. Your situation seems to call for restriction on the easement being granted to the trail.

John Putnam, PLS
OR, CA, WA & ID

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Posted : March 20, 2017 2:25 pm
thebionicman
(@thebionicman)
1,000+ posts Registered

Lots of good stuff. Easements are presumed to be nonexclusive unless stated otherwise. The owner retains the right to all uses not inconsistent with the easement he granted. Adding a reservation of access in a few points will muddy the waters. If the Attorney thinks i can grant myself an easement to reserve rights its time for a new attorney..

CFedS, PLS ID-OR-WA-UT-NV

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Posted : March 20, 2017 2:28 pm
Paul in PA
(@paul-in-pa)
5,000+ posts Registered

"Crossing Easements" are exactly what they are if the RR were active. What the underlying fee owner is saying is "Here is where I intend to cross the use I am allowing you, do not impair my ability to do that."

If I grant you an easement I can damn well reserve any right to myself. Whatever language is used to affect that, is inconsequential to my ability to reserve some use. The best the receiving easement owner can require is a restriction that I do not extend that use to many others.

Lastly the landowner is not granting himself an easement, he is holding an easement against the easement he is granting. an easement is a use with restrictions and they are necessary for many reasons. An easement is an appurtenance to land, and it's character should not change because of ownership of the land.

I represented a client at hearings to create a paved trail. It was a large farm, the client had written and mapped rights to cross the RR. The Planning Board seemed unable to understand that access to a farm include maximum length tractor trailers, meaning no sharp turns, 24' wide combines, meaning no narrow gates, low clearance equipment meaning no severe grade changes. To make matters worse they wanted to change the permitted access point to a State Highway. In addition they intended to pave over a USGS monument, which is now accessible by a full size shallow manhole under a parking space. However the manhole does not have proper markings, so if you do not know that it is there you might have trouble finding it. At least they did not plant a tree there so I also have GPS access.

Paul in PA

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Posted : March 20, 2017 3:59 pm
thebionicman
(@thebionicman)
1,000+ posts Registered

Paul in PA, post: 419387, member: 236 wrote: "Crossing Easements" are exactly what they are if the RR were active. What the underlying fee owner is saying is "Here is where I intend to cross the use I am allowing you, do not impair my ability to do that."

If I grant you an easement I can damn well reserve any right to myself. Whatever language is used to affect that, is inconsequential to my ability to reserve some use. The best the receiving easement owner can require is a restriction that I do not extend that use to many others.

Lastly the landowner is not granting himself an easement, he is holding an easement against the easement he is granting. an easement is a use with restrictions and they are necessary for many reasons. An easement is an appurtenance to land, and it's character should not change because of ownership of the land.

I represented a client at hearings to create a paved trail. It was a large farm, the client had written and mapped rights to cross the RR. The Planning Board seemed unable to understand that access to a farm include maximum length tractor trailers, meaning no sharp turns, 24' wide combines, meaning no narrow gates, low clearance equipment meaning no severe grade changes. To make matters worse they wanted to change the permitted access point to a State Highway. In addition they intended to pave over a USGS monument, which is now accessible by a full size shallow manhole under a parking space. However the manhole does not have proper markings, so if you do not know that it is there you might have trouble finding it. At least they did not plant a tree there so I also have GPS access.

Paul in PA

You are correct that you can reserve unto yourself. The definition of an easement is a right in the lands of another. Words mean things and they are important.

CFedS, PLS ID-OR-WA-UT-NV

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Posted : March 20, 2017 5:36 pm
Paul in PA
(@paul-in-pa)
5,000+ posts Registered

Wrong, an easement is an appurtenance to land and runs with the land. You do not have an easement to run over lands of A because of who you are. You have a right to run over lands of A because you own lot B which has a easement over A. You cannot sell Lot B and retain the easement over A to yourself and not keep it attached to B.

If it is attached solely to a person it is a license. Which you may be able to sell separate from land.

Paul in PA

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Posted : March 20, 2017 7:21 pm
thebionicman
(@thebionicman)
1,000+ posts Registered

Paul in PA, post: 419412, member: 236 wrote: Wrong, an easement is an appurtenance to land and runs with the land. You do not have an easement to run over lands of A because of who you are. You have a right to run over lands of A because you own lot B which has a easement over A. You cannot sell Lot B and retain the easement over A to yourself and not keep it attached to B.

If it is attached solely to a person it is a license. Which you may be able to sell separate from land.

Paul in PA

An easement to a specific person only is an easement in gross. Easements also attach to land, just not your own.

CFedS, PLS ID-OR-WA-UT-NV

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Posted : March 20, 2017 7:24 pm
  
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