Category: Easements

Intent must be “clear and unequivocal” to result in dedication of land to the public

Gary Taylor

by Gary Taylor

McNaughton v. Chartier and the City of Lawton
Iowa Supreme Court, June 24, 2022

In 1999 McNaughton entered into an easement agreement with the Chartiers to allow a small part of a road to pass through McNaughton’s property. The road was used to access the Chartiers’ business from Highway 20, and the dedication amounted to a 23’ x 80’ strip. The agreement provided that it was a “‘private’ easement granted for the use and benefit of the parties . . . and [was] not to be construed as an easement for the use and benefit of the general public.”

Shortly thereafter the city of Lawton paved and completed other improvements to the access road (now Char-Mac Drive). The paved portion covers 13’ x 60’ of the easement. During the early 2000s the city repeatedly asked McNaughton to dedicate the paved portion to the city but McNaughton refused. The reason he gave was that the city failed to maintain the paved portion of the easement. Language was included in the agreement between McNaughton and the Chartiers that the Chartiers “shall be obligated to take all action necessary to ensure that the town of Lawton becomes contractually obligated to maintain the easement area….” It is unclear whether this happened, but McNaughton testified that the city removed snow only a few times and generally failed to maintain the road.

When the Chartiers sold their property, they discovered that McNaughton had never recorded the easement agreement with the county. The Chartiers asked McNaughton to sign a Clarification of Easement essentially assigning the easement to the purchasers and offered him $15,000 but he refused, and thereafter made various escalating offers ($100,000, then $160,000, then $410,000, then in exchange for 50 acres of farmland) to the Chartiers to either sign the easement or sell his entire property. They refused. McNaughton sued, claiming purchaser had no rights under the easement because of failure to assign them.

The District Court found McNaughton had “dedicated the concrete portion of the easement to the City” because, among other things, the public had used the easement as the parties had agreed and because McNaughton had “never attempted to restrict the use of the concrete portion of the easement area.” Alternatively, the district court found that the easement was appurtenant to the Chartier’s property and passed to the purchaser upon sale. The Court of Appeals disagreed with both conclusions of the district court, as did the Supreme Court.

The Supreme Court observed that a grantor’s intent to dedicate land to the public for public use must be clear and unmistakable, and must be accomplished through “deliberate, unequivocal, and decisive acts and declarations of the owner, manifesting a positive and unmistakable intention to permanently abandon his property to the specific public use.” “Mere permissive use of a way, no matter how long continued, will not amount to a dedication.” The Court found that the language in the original agreement; that the easement was “not to be construed as an easement for the use and benefit of the general public” established just the contrary. Furthermore, language in the easement that “[t]he easement rights granted herein may not be assigned by Chartier to any other party or parties without the express written consent of McNaughton or his successors or assigns” served to negate the district court’s conclusion that the easement passed to the purchasers upon sale.

The specific language in an easement must be given effect. McNaughton wins.

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Court of Appeals finds $25,000 award reasonable for sewer easement

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by Eric Christianson

City of North Liberty v. Gary Weinman
(Iowa Court of Appeals, April 5, 2017)

In 2014 North Liberty was in the process of developing what would become Iowa City Liberty High School to alleviate overcrowding in the Iowa City School District. However, the site selected did not have access to sanitary sewer. To service the area, the City of North Liberty explored several options before selecting its ultimate path in 2014. This path crosses the private property of 13 individuals. The city was able to secure temporary easements (for construction) and permanent easements (for ongoing maintenance) from 12 of the 13. The final holdout was Dr. Gary Weinman who first sought through a pair of lawsuits to force the city to stop construction and reconsider other routes. Those suits failed.

Easements are always considered takings and therefore Weinman was entitled to just compensation under the Fifth Amendment. A compensation commission decided that Weinman was entitled to $75,000. This included a temporary easement for construction (1.1 acres for four months) and a permanent easement (.75 acres). The city appealed claiming that amount was excessive. Weinman requested a jury trial so the matter was tried de novo to the jury. The jury set the compensation amount at $25,000 relying largely on the testimony of an expert assessor brought by the city.

Weinman appealed this decision to the Iowa Court of Appeals. The Court of Appeals does not  generally reverse compensation awards provided that they are not “wholly unfair or unreasonable.” In this case, because the jury’s decision was reasonable based on the evidence, the award of $25,000 was affirmed.

 

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Creek stabilization plan went beyond scope of original drainage easement

hdankbar

by Hannah Dankbar and Gary Taylor

Hamner v City of Bettendorf
Iowa Court of Appeals, October 12, 2016

Property owners in the Rolling Meadows subdivision complained that the City of Bettendorf overstepped their powers when they used a 25-foot “utility and drainage easement” established in 1968 for a stream bank stabilization project in 2015. Property owners claimed that the use of the 25-foot easement for stream bank stabilization constituted a taking and argued that they should be compensated for the land. The City did not offer any compensation for the removal of trees, change in land elevation, or the regrading of the property owners’ land.

The City argued that it was in the public interest to stabilize the creek, and that the easements granted in 1968 contemplated the type of work conducted by the City in 2015; thus the landowners were not entitled to compensation.

The district court ruled in favor of the landowners because the 1968 easement was granted to maintain the sanitary sewer, storm sewer, Stafford Creek drainage, and utility poles. The court determined that stabilizing the creek overstepped the City’s powers.  The City appealed.

On appeal, the Iowa Court of Appeals used a three-part test to evaluate the scope of the easement: 1) the physical character of past use compared to the proposed use; 2) the purpose of the easement compared to the purpose of the proposed use; and 3) the additional burden imposed on the servient land by the proposed use.

Physical character of past use compared to the proposed use. The City planned to remove all trees and foliage, install a retaining wall on one side of the creek, and place twenty-five tons of rocks along both sides.  The court concluded that this work would substantially change the physical character of the past use of the properties.

Purpose of the easement compared to the purpose of the proposed use.  The court found that while the proposed work did pertain to drainage in a general sense…the purpose of the project was to reshape Stafford Creek and the surrounding creek bed to cure past erosion and prevent future erosion.

Additional burden imposed on the servient land by the proposed use. The landowners presented estimates from a consultant of the loss of value of their properties ranging from $27,500 to $30,250.  This suggested a burden way beyond that contemplated by the original easement

The court determined that the original grantors of the easements did not “contemplate the expansive use of the easement now sought” by the City, and that the radical changes to the land demanded compensation to the landowners under Article I, Section 18 of the Iowa Constitution (the Takings Clause).

 

 

 

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Plain language of right-of-way deeds grant easements

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by Andrea Vaage

Sargent County Water Resource District v. Mathews
North Dakota Supreme Court, December 1, 2015

Paul Mathews sought to control land rented to him by Nancy Mathews and Phyllis Delahoyde. In response, The Sargent County Water Resource District filed for declaratory relief in November 2012 as the successor in interest to the Sargent County Board of Drain Commissioners. The Board obtained interest in the property through right-of-way deeds signed in 1917 and 1918.

At issue is whether the deed conveyed an easement or an estate in fee. The district court found the deeds granted fee title in property to the District. The Mathews appealed. The Mathews argued the right-of-way deeds from 1917 and 1918 unambiguously show an intent to convey easements for a right of way when read in plain language. In addition, if the deeds were ambiguous, the Mathews argued the district court interpretation of parol evidence is erroneous. When a deed is unambiguous, meaning of the deed is determined from the document itself. When it is found to be ambiguous, extrinsic evidence may be considered.

The deed reads, in part, that owners:

“grant, sell and convey, and forever release to the people of the County of Sargent, in the State of North Dakota, right of way for the laying out, construction and maintenance of a public drain, as the same may be located by the Board of Drain Commissioners, through said above described lands, being a strip of land . . . [described]. And we hereby release all claims to damages by reason of the laying out, construction and maintenance thereof through our said lands.”

The Court analyzed the deed to understand the grantor’s intent. The deed grants a “right of way” specifically for “construction and maintenance of a public drain” and does not convey an estate in fee. When the granting clause includes the phrase “right of way,” courts have found the deed usually conveys an easement. The Court found the deed was unambiguous and conveyed an easement when read in plain language.

The decision of the district court was reversed.

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Landowner not entitled to injunction when ownership of easement rights in dispute

by Kaitlin Heinen

Hawkeye Land Company v. City of Coralville, Iowa
(Iowa Court of Appeals, June 12, 2013)

Hawkeye Land Company filed an application for injunction on April 6, 2012, which involved a parcel of land and railroad tracks located on the southern end of Coral Ridge Avenue in Coralville, Iowa. The application was filed in response to the City of Coralville’s decision to extend Coral Ridge Avenue over the tracks in order to provide access to a developing subdivision. Prior to construction of the extension, “Coralville did not initiate eminent domain proceedings.” The City negotiated with Heartland Rail Corporation, believing that Heartland, rather than Hawkeye, had the rights to approve the street extension over the railroad tracks. An agreement between Coralville and Heartland was reached.

Both Hawkeye and Heartland claimed to have received ownership from the railroad’s original owner, Chicago Pacific Corporation (CPC). Heartland claimed to have purchased rights from CPC and to have been granted rights to operate the rail line including the right to grant easements, such as construction of a street over the tracks. Coralville argued its purchased such an easement from Heartland. On the other hand, Hawkeye argued it purchased rights from CPC including the right to grant easements for “transportation and transmission systems” by “whatever means,” which arguably includes streets. The most contentious issue between parties was which party possessed rights to grant easements necessary to extend Coral Ridge Avenue over the railroad tracks and whether that party had been properly compensated. If Hawkeye possessed rights, the extension could constitute a taking requiring eminent domain proceedings and payment to Hawkeye. If Heartland possesses rights, eminent domain proceedings are not necessary because Coralville had compensated Heartland. The district court denied Hawkeye’s application for injunction because it found that Hawkeye failed to show that it had suffered irreparable harm and had no adequate remedy at law.

To obtain an injunction, the owner must prove irreparable injury and that no adequate legal remedy is available. “When property has been subject to condemnation, the landowner may permanently enjoin the eminent domain proceedings.” Also, “[i]n each case where a permanent injunction has enjoined condemnation under eminent domain, condemnation has occurred first.” The Iowa Court of Appeals held that this did not happen in this case. Coralville brought no condemnation proceedings, but Iowa law provides a remedy for a taking that has occurred without condemnation proceedings. Mandamus, or inverse condemnation, is available as a remedy when an agency has taken private land for public use without condemnation proceedings or employing eminent domain. So, the Iowa Court of Appeals ruled that the rights of the parties need not be decided at this time because the question before the court in this case was whether Hawkeye was entitled to an injunction. “A mandamus action is available to it, and as that action will result in the same outcome as a condemnation proceeding, it provides an adequate remedy at law.” Yet, “[b]ecause Hawkeye is unable to satisfy the necessities to obtain an injunction,” the district court’s decision was affirmed.

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Filling sinkhole not an allowable activity under TNC conservation easement

Gary Taylor

by Victoria Heldt

The Nature Conservancy v. Larry and Marsha K. Sims
(United States Sixth Circuit Court of Appeals, May 21, 2012)

In December 2001 the Sims purchased a 100-acre farm from The Nature Conservancy, Inc. (TNC) in Kentucky.  The real estate agreement included an easement to “assure that the Protected Property will be retained forever substantially undisturbed in its natural condition and to prevent any use…that will significantly impair or interfere with the Conservation Values of the Protected Property.”  The easement also conveyed to the TNC a right to inspect the property annually to ensure the Sims comply with the easement.  Without the easement, the property was appraised at $260,400 and with the easement it was appraised at $60,000.  The Sims paid $60,084 for the property in addition to a $244,939 tax-deductible charitable gift to TNC.

The property consisted of two sections, one being a residential/agricultural area to be used for the Sims’ residence and for commercial agricultural uses.  The remaining portion of the land, known as Henslow Sparrow, was to be used only for grazing livestock and producing hay.  A detailed description of the condition of the property was included in the agreement.  In January 2005 TNC inspected the property and found several instances of non-compliance with the easement.  One such non-compliance was the fact that the Sims altered the topography on the property by excavating and re-grading a sinkhole behind their residence.  This action violated Section 2.5 of the easement.  The remaining instances of non-compliance were remedied by the Sims and the allegations dropped.

TNC’s expert geologist was permitted to survey the sinkhole and determine the contours of the ground before the sinkhole was filled.  The district court granted summary judgment in favor of the Conservancy, determining that the Sims did indeed violate the easement.  It noted that, although the Sims were allowed to make some changes to the property in relation to authorized activities, filling a sinkhole with an estimated 6,269 cubic yards of soil was not one of them.  In a later judgment, the court awarded the Conservancy $77,337.50 in attorneys’ fees and $18,9902.33 in expenses.  Upon examination of the hours billed to TNC, the court subsequently reduced the amount awarded to TNC by $11,774.  The Sims appealed both judgments.

In regards to the violation of the easement, the Court ruled that the district court was correct in determining that the Sims were in violation.  Section 2.5 of the easement  states “there shall be no ditching; draining; diking; filling; excavating; removal of topsoil, sand, gravel, rock, or other materials; or any change in the topography of the land in any manner except in conjunction with activities otherwise specifically authorized herein.”  Filling the sinkhole clearly violated this condition.

The Sims argued that they are allowed to “enhance their agricultural usage” of the land under Section 3.2 of the easement and in filling the sinkhole they were improving the farming process.  Furthermore, they pointed to the phrase within Section 2.5 that allowed for altering the land “in conjunction with activities otherwise specifically authorized herein” in support of their argument.  They asserted that farming is an authorized activity and thus they are allowed to fill the sinkhole to improve the agricultural use.  The Court rejected this argument, stating that filling is not a normal precursor to farming activities.  In addition, “filling” is strictly prohibited within Section 2.5.

Next, the Sims argued that Section 3.7 gives them the right to “dig wells” and “create ponds” and they should therefore be allowed to place the excavated dirt in a sinkhole on their land.  The Court dismissed this argument as unreasonable since it would allow the Sims to breach one provision of the easement in order to enjoy another.  The Sims further argued that the status of the depression as a “sinkhole” was not disclosed to them before they filled.  Regardless, the Court noted that “filling” is explicitly forbidden.  The Sims claimed they would not have built their residence so close to the sinkhole had they known they weren’t allowed to fill it.  The Court determined it was the builder’s task to recognize limitations of the property in regards to the construction of a home.

Finally, the Sims challenged the reasonableness of the amount of damages awarded to TNC.  The Court noted that the district court took into account all the necessary factors in determining the amount awarded.  It carefully examined the record of hours billed and the breakdown of the hours in its decision-making process.  The Court determined the award to be reasonable.  It affirmed the district court’s decision on both judgments.

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Lakeway easement interpreted as providing access, not a park

Gary Taylor

by Victoria Heldt

Bedford, et. al., v. Joan Yvonne Rogers, Joan Yvonne Rogers Trust
(Michigan Court of Appeals, April 17, 2012)

The long list of plaintiffs in this case is comprised of property owners within the Glen Eyrie subdivision located on Crystal Lake.  The plat (recorded in 1920) and the parties’ deeds established a 100-foot wide strip of land designated as the “lakeway” between the plaintiffs’ property and the edge of Crystal Lake.  The lots do not extend all the way to the water.  The lakeway was to be “dedicated to the common use of property owners in Glen Eyrie plat.”  Sometime after 1920, Crystal Lake Drive was constructed parallel to, and partially within, the lakeway.  Surveys done in 2001 and 2010 indicated that the border separating the property owners’ lots and the lakeway is located near the center line of Crystal Lake Drive.

Historically, some of the property owners built boathouses or storage units in the lakeway.  When Rogers purchased her lot in 1987 a 20 x 28-foot boathouse was built in the lakeway in front of her property.  In September 2009 she applied to the township for a permit to build a new 28 x 34-foot boathouse to replace the existing one.  The township granted the permit and Rogers began construction in October 2009.  The new “boathouse” was to include running water, heat, toilet facilities, a kitchenette, a workshop, and a second floor cupola.

As Rogers’ construction was in its early stages, the plaintiffs wrote a letter through an attorney asking Rogers to cease construction since the lakeway was reserved for the common use of property owners.  Rogers refused to stop the construction.  In December 2009 the Lake Township Zoning Administrator wrote her a letter stating the building violated the township’s zoning ordinance since it “includes substantial space designated by the Building Department as living quarters” and issued a stop work order.  Rogers appealed the administrator’s opinion and, in April 2010, the Board of Appeals voted that the boathouse constructed should be “allowed as a compatible non-commercial recreational facility.”  The Board did place certain conditions on the property that included the removal of certain residential features (e.g. a tub, shower, and certain fixed kitchen appliances).

In trial court, the plaintiffs filed a request for summary disposition citing trespass and nuisance.  They argued that the plat dedication granted property owners an “irrevocable easement over the lakeway property and prevented defendant from exclusively using the portion of the lakeway in front of her lot by constructing a new structure that expanded the footprint of the old boathouse.”  Rogers also filed for summary disposition, arguing she owned the portion of the lakeway in front of her property and had the right to make use of it.  The court noted that a tacit agreement existed among land owners that 100% of the lakeway was not dedicated for common use since most property owners built boathouses for personal use.  History supported that claim since most of the structures had existed for over 40 years.  The court acknowledged that the expansion of this boathouse by several feet would not further prevent other land owners from using and enjoying the lakeway.  It determined the expansion should be allowed.

On appeal the Court of Appeals first noted that a use under a plat dedication must be within the scope of the dedication and must not interfere with the owners’ use and enjoyment of the property.  In this case, the plaintiffs interpreted the plat dedication to create a park for common use by the lot owners.  This Court of Appeals disagreed.  The dedication stated that “the drive, court, spring road and lakeway” were dedicated for common use.  When interpreting language like this, it is in accordance with precedent to treat word groups in a list as having related meanings.  The drive, court, and spring road are all used as right-of-ways (access) for lot owners to travel to, from, and within the plat, not as a park (which implied open space without obstructions).  The Court stated that the lakeway is to be considered similar; i.e., as a right-of-way.  The Court further noted that the term “lakeway” suggests it should be used as a right-of-way rather than a park (since the word “way” is found within the term.)

Subsequently, the Court determined that “the scope of the dedication created an easement within the lakeway for common use of lot owners of the land as a right-of-way that allows lot owners to use the lakeway in the same manner as the drive, court, and spring road.”  Since Crystal Drive, which runs through the lakeway, satisfies the purpose of a right-of-way providing access, there is no need to prohibit obstructions such as boathouses from the lakeway.   The Court determined that the slightly larger boathouse would not prevent residents from using and enjoying the lakeway for its purpose as right-of-way any more so than the previous boathouse did.  Thus, it affirmed the trial court’s decision.

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Landowner unable to claim adverse possession over land subject to street easement

Gary Taylor

by Victoria Heldt

Donald Hector, et al. v. Gary Hoffer, et al., City of Adrian
(Minnesota Court of Appeals, December 12, 2011)

This case involves an undeveloped street easement in the City of Adrian, Minnesota.  The easement was granted in 1891 in order to develop Second Street, but the street was not developed towards the western end.  The Hoffers and the Lonnemans own property on the southern edge of the easement while the Hectors own property to the immediate north and west of the easement.  The Hectors bought their property in 1995 and the Lonnemans and the Hoffers both acquired their properties between 2005 and 2006.  Neither of the deeds conveying the property contained rights to the land under the easement.  When the Hoffers and the Lonnemans purchased their properties, a wire fence and a row of volunteer trees ran through the middle of the easement.  Both the Hoffers and Lonnemans found them to be an eyesore and wanted them removed, but the Hectors disagreed.  Thinking that the fence and trees were on city property, Mark Hoffer asked the city zoning administrator if he could remove them.  The zoning administrator said yes because he believed they were on a city right of way, but the Hectors objected.  After receiving permission from the city administrator, the Hoffers and Lonnemans removed the fence and trees.

The Hectors filed suit in district court initially only making claims against the Hoffers and the Lonnemans.  The Hectors sought a declaration that they owned the property either by title or by adverse possession and requested damages from the Hoffers and Lonnemans for trespass and for the removal of the fence and trees.  The Hectors also claimed that a drain tile (installed by the Hoffers and the Lonnemans) caused drainage onto one of their driveways. Later, the complaint was amended to include counts of trespass and conversion against the City.  The City, the Hoffers, and the Lonnemans all sought summary judgment.  The court granted summary judgment to the City, noting that its advice had been “based on a negligent misrepresentation of law, which is not actionable.”  The court additionally found that the Hectors owned the Property underlying the easement up to and including the fence line but not the property south of the line.  It concluded that the Hoffers and Lonnemans had trespassed and awarded the Hectors $200 in damages for the loss of the fence.  The Hectors appealed.

In its analysis, the Court first noted that, pertaining to the underlying interest of a public easement for a street, any abutting landowner has an interest in the property up to the middle of the street.  Subsequently, under the general rule, the Hoffers, the Lonnemans, and the Hectors would own their respective property underlying the easement up to the center line of the easement.  The Hectors first argued that they own all of the land under the easement since they own two intersecting sides of the land underlying the easement.  The Court focused on the fact that the original platters of the land owned the land both to the north and to the south of the easement.  Due to this fact, when the land was platted into blocks and the title of the Hectors block passed to them, they only took title up to the center of the street line.

Alternatively, the Hectors argued that they owned the entirety of the property under the easement due to adverse possession.  In order to claim property by adverse possession, a party must prove that it has used the property exclusively and continuously for 15 years.  The Hectors argued that Leander Ruffing, the previous owner of their property, had used the land exclusively for over 15 years.  The Court acknowledged that it is not necessary for the current owner to prove continuous ownership for 15 years and that the previous owner’s use could be accounted for in determining adverse ownership.  However, the Court still found that the Hectors failed to prove adverse ownership of the property to the south of the fence since that was not claimed to be used by Ruffing.  The Hectors’ warranty deed was dated October 1995 and they could not prove 15 years of use before the Court’s order in April 2010.  In addition, Victoria Hector herself admitted that the Hoffers and the Lonnemans used a portion of the easement to the south of the fence for a utility trailer.  This fact shows the Hectors did not maintain exclusive use of the property, and therefore the claim for title by adverse possession failed.

The Hectors also challenged the $200 in damages and the court’s failure to assign damages for the loss of trees.  Historically, the amount of damages due for a loss of trees has been measured by the difference in the value of the land before and after the removal of the trees.  The Hectors failed to prove that the value of the land had changed due to the loss of the trees.  Additionally, there was no evidence to show that the trees served an aesthetic purpose.  The Court affirmed the district court’s measure of damages.

The Hectors further argued for punitive damages.  In order for punitive damages to be appropriate, a showing must be made that the defendant “showed deliberate disregard for the rights or safety of others.”  Since the Hoffers and Lonnemans did not think the Hectors owned the trees or the fence (based on comments from the city zoning administrator) they did not show a “deliberate disregard” for the Hectors’ rights.  Consequently, the Court found punitive damages to be inappropriate.

In regards to the claim against the City, the Court found that, even if the district court’s summary judgment were reversed, it would have a minimal affect on the lawsuit since the Hectors were already awarded $200 in damages.  The Court affirmed the district court’s decision.

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Grant of land for county highway was an easement; land could be included to meet minimum acreage requirement

Gary Taylor

by Victoria Heldt

Wade Berger and Ilona Berger v. Town of New Denmark, William Kreuger, Norbert Buresh
(Wisconsin Court of Appeals, January 10, 2012)

The Bergers own two contiguous plots of land in the Town of New Denmark.  The two plots are zoned for Agricultural use.  Since 2003, they have been attempting to obtain building permits for both plots.  The Town’s zoning ordinances require a plot to have at least 35 acres in area in order to grant a building permit.   At a meeting before the Town Board, Wade Berger demonstrated how part of plot A had been added to plot B so that plot B would comply with the 35 acre requirement.  In addition, the Bergers purchased additional property next to plot A in order for plot A to comply with the requirement.  In the presentation, Berger showed each plot having 35.190 acres.

The Town denied their request, claiming that the plots did not meet the 35 acre requirement.  They argued that the land over which County Highway T ran should not be included when totaling the acres.  When excluded, the parcels only totaled 34.5 acres each.  The Town argued that the Selners, the previous owners of the land, had granted full title of the property underlying the highway to the Town in the 1950’s when the road was constructed.  The district court ruled in favor of the Town.

On appeal, the Court focused primarily on the language that described the conveyance of property in the 1950s.  The title of the document read “Conveyance of Land for Highway Purposes.”  The Court noted that in previous cases, it was recognized that municipalities did not receive ownership of land used for a highway, only a right of way over such property.  It further pointed out that the language “right of way” used in the conveyance strongly suggests it was granting the County a “right to a reasonable and usual enjoyment” of the land and not full ownership rights.  It found that, unless clearly stated otherwise, a granting of land for the purpose of a highway is meant to serve only as an easement. As a result, both plots were determined to be over 35 acres.

Since this decision only clarified the plot’s compliance with the 35-acre requirement and not whether it is otherwise eligible for building, further proceedings were necessary.  The Court reversed the district court’s decision and remanded it for further judgment.

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County establishes easement for road by adverse posession across livestock ranch (ND)

Gary Taylor

by Gary Taylor

McKenzie County v. Reichman
(North Dakota Supreme Court, January 24, 2012)

In 2006, McKenzie County sued Reichman, alleging a road that “Flat Rock Road” which crosses her ranch  had been used by the public in an open, general, continuous, and uninterrupted manner for at least 20 successive years and seeking a prescriptive easement and formal declaration as a public road.  According to Reichman, the public’s use of the road through her ranch significantly increased after she purchased the ranch in 2000, including an increase in traffic attributable to the oil industry. As a result, she sought to restrict public use of the road, including placing gates or cattle guards across the road as part of her livestock operation.  She claimed any public use of the road was permissive, and there had been no continuous, adverse, hostile, and uninterrupted use of the road for the prescriptive 20-year period. She counterclaimed for damages for inverse condemnation. After a trial, the district court declared a prescriptive easement in favor of McKenzie County, and Reichman appealed.

The North Dakota Supreme Court began by noting that a party claiming a road by prescription must establish by clear and convincing evidence the general, continuous, uninterrupted, and adverse use of the road by the public under a claim of right for 20 years.  The court then recited the extensive presentation of the history of the land and the road dating back to 1920 presented at the trial court.  Important to the court was the fact that the County constructed a graded road in the 1950s with the knowledge and consent of the adjacent landowners, including the then-owner of the Reichman property.  The County provided maintenance for the road, including grading, plowing snow, placing scoria on the road, and installing culverts and bridges. Testimony was presented that the road was only blocked for short periods when ranchers moved livestock.  According to the court, the 20-year period for measuring a prescriptive use begins when a burden is placed on the land and relates back to the inception of the adverse use which, in this case, was the point in time in the 1950s when the County first constructed a graded road.  “The expenditure of public funds for construction and maintenance of a road is evidence of an adverse use….Gates across roads are indicative of permissive (contrasting to an adverse) use, but gates for working livestock which do not deny access or interfere with public traffic do not mandate a permissive use.”  Therefore. the court determined that McKenzie County had, in fact, established a prescriptive easement and the right to a formal declaration of Flat Rock Road as a public road.

The court further stated that the width of a prescriptive easement for a road is not limited to that portion of the road actually traveled, but may include the shoulders and ditches that are needed and have actually been used to support and maintain the traveled portion of the road during the prescriptive period.  Considering the district court declared the road to be a public road “as it presently exists,” the Supreme Court remanded the case for a determination of the prescriptive road either by width, by metes and bounds, or by other suitable description as the road existed at the commencement of the action.

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