Easement Question
I think most areas have a law which prevents people from granting themselves an easement, right? And if a person comes to own a parcel on which they had previously been granted an easement then the easement goes away.
My question is if this applies to governments as well. A situation I’m dealing with at the moment is where the city owns a lot in a subdivision and the plat calls out a public utility, drainage, and irrigation easement along all lot lines. If the city is the owner and also the grantee does the easement still exist?
- 37 Replies
it’s very rare to be able to grant yourself an easement, I was just in another Gary Kent Convo and heard that again.
looking forward to the stamps to give opine on the topic, this site rocks!!
https://en.wikipedia.org/wiki/Merger_doctrine_(property_law)
Rule of Merger is what you are thinking. You can’t grant a right to yourself, that you already own. And yes in fact, when a lot ownership grants a right to another party in an easement document that is then purchased and owned by that other party, that right as defined by the easement doc etc may be extinguished. In your case of subdivision lot ownership by a city that has utility rights granted to it, its a bit more interesting. At the time the City owns the Lot, The Conditions bestowed upon that lot of Utility easements are not necessary but as conditions of approval of the lots creation they may still exist, I might see how they could be argued that they do not go away or need to be restated when the City sells, it could be as simple as when the city sells the lots, the reference to Subject to the utility easements as shown on previous subdivision, etc. may still at that time of conveyance be restored.
Public easements are normally grants to a collective of utilities, not just government facilities. They cover cable, private gas companies, ect. Also many government utilities are separate entities that the city might be involved with but not in charge of.
I don’t see any issue with it.
Those easements don’t necessarily sound like easements granted to the city. Does the plat grant these easements to the city? PUE’s generally allow any utility service provider to use them, which can include, but is nit limited to local government. Drainage and irrigation easements can be granted to the city, but are often granted to the world in general for those specific uses.
Then the question is, why does it matter?
PUE’s generally allow any utility service provider to use them, which can include, but is nit limited to local government.
Right, and even if it was I’d be pretty surprised if a city barred those enitities from using it anyway.
Then the question is, why does it matter?
I need to look further into it. What I’ve heard so far is that the city thinks it needs to vacate this easement for some reason.
from my recent and back and forth from a few municipal orgs, it sounds like someone may have recently attended a conference.
Just a wild guess.
the city thinks it needs to vacate this easement for some reason
Government at its finest…
The city doesn’t grant an easement shown on a subdivision plat. The landowner did that when the plat was created. The easements in most subdivisions cover access to adjoining lots. While it’s possible to vacate an easement, this would be a strange reason to do it. Does the city think it needs to vacate streets accessing city hall?
A few of the answers already provided are sort of off base. If you are a property owner there is no legit reason to grant yourself an easement because you already have the right of enjoyment in the use of all of the property. If you are conveying and want to reserve an easement for future use, such as an ingress or egress easement to an otherwise land locked property you can certainly do that before selling the property. If and when that easement is ever extinguished depends on the language and intent of it.
If a local, county, state or federal government owns a property in a subdivision and that property has road frontage/ingress & egress access but there are easements along the property, they can convey the property to a private party but that does not mean the easements go away, especially if they are created for utilities and drainage purposes. For the easements to go away, even if not in use, the named entity to whom the easements were granted would have to file a document abandoning or extinguishing the easement to make it go away.
Filed easements just do not vanish on the transfer of any property unless the wording in the recorded document granting them specifically nullifies them on the transfer of the property.
For there to be a merger they would need to be appurtenant easements. I think this situation you have gross easement for utilities. In other words, those utility easements are not tied to any particular parcel. So, there would be no possibility of a merger happening.
Even if the utility easement was considered appurtenant, there would need to be a complete merger. The municipalities interest in the subdivision lot and the interest in the easement are probably differently sourced and hence would not be a merger. The lot itself would have to be held for utility purposes by the same agency/regulatory subdivision as the utility easement.
So unlikely anything special needs to be done, but by all means get some billable hours out of it:)
If you are conveying and want to reserve an easement for future use, such as an ingress or egress easement to an otherwise land locked property you can certainly do that before selling the property.
This is an example of a deed restriction, not an easement.
In your example A sells to B, then B would have to grant A the easement.
You cannot convey a future easement to yourself prior to divestment.
For there to be a merger they would need to be appurtenant easements. I think this situation you have gross easement for utilities. In other words, those utility easements are not tied to any particular parcel. So, there would be no possibility of a merger happening.
Merger could happen to either gross/appurenant easements if the “purchaser” was an easement holder prior to the purchase. That interest would merge. There may be other interests that do not merge.
Those utility easements are tied to the land they occupy and run with said land no matter who purchases the lot(s), for the benefit of those with the right to the easement. They are appurtenant. Lot purchasers are grantees subject to those easements.
Platted public utility easements are reserved for the benefit of utilities regulated by the public utilities commission. The government is not the dominant estate. They will need to go through the vacation process if they want the easement gone.
According to the OP’s original post, the gov’t purchased a subdivision lot with easement(s) along all lot lines.
Here’s an interesting question: What are the dominant estate(s) affected?
Each adjacent lot? Each adjacent easement? The adjacent right-of-way? The public (private?) road? All of these?
depends
Las Cruces had all of its own utilities, even electric, but finally gave that one up. ElPaso electric has a franchise easement for anything they want to do city wide. City probably vacated but I never got to dig through those documents while I was there.
It’s always a new story even if it seems like it’s the same story…
♂️
@jitterboogie Yeah, I think first I read about this was maybe a Jerry Broadus article 30 some odd years ago in Washington probably. Utility company had to repurchase gross easement because unlike appurtenant it has to mentioned in a deed when restructuring the company. Or something to that affect. Surveyor can’t make the call, but lots of research and timeline of what has happened we can provide.
“The city” isn’t a single entity. The city can hold property corporately (for its own use) or it can hold property “in trust for the public.” It would seem that the easements created by the plat would be a public trust matter, their ownership of a lot would be for benefit of the city corporation (assuming it’s not a public park or similar). These are two separate entities. If that’s the case, then there would be no “merger of title.”
JBS
we had the Utilities of Las Cruces, and they were the enterprise entity and owned the utilities, city was dependent on the relationship obviously and was granted or did grant easement to itself indirectly because of the type of relationship.
Then the question is, why does it matter?
Turns out they simply want more room to build additional facilities on the lot.
@bstrand it’s usually the local goverment who needs to approve PUE and drainage easment vacations unless they were granted to a specific person or parcel of land. The city should be able to just follow their easement vacation procedures.
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