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Merger of Title Case from Colorado
SALAZAR vs TERRY
https://law.justia.com/cases/colorado/supreme-court/1996/94sc704-0.html
Discusses established lines, easements and other when merger of title occurs.
A tricky subject for sure.
A bit from the case:
Our conclusion is reinforced by the doctrine of merger as it applies to extinguishment of easements. Easements and boundaries affect the relationship between parcels of land. Boundaries separate parcels of land. Easements, such as a “right of way,” burden one estate to the benefit of the other estate. The burdened estate is servient to the dominant *1091 estate which benefits from the easement. When the dominant and servient estates come under common ownership, the need for the easement is destroyed. Specifically, “[i]f the owner of an easement in gross comes into ownership of an estate in the servient tenement, the easement terminates to the extent that the ownership of that estate permits the uses authorized by the easement.” 7 Thompson on Real Property ?? 60.08(b)(1) at 479 (David A. Thomas ed., 1994) (footnote omitted); see also Breliant v. Preferred Equities Corp., 109 Nev. 842, 858 P.2d 1258, 1261 (1993) (“When one party acquires present possessory fee simple title to both the servient and dominant tenements, the easement merges into the fee of the servient tenement and is terminated.”); Witt v. Reavis, 284 Or. 503, 587 P.2d 1005, 1008 (1978) (“if at any time the owner in fee of the dominant parcel acquires the fee in the servient parcel not subject to any other outstanding estate, the easement is then extinguished by merger”) (emphasis in original).
Furthermore, the easement will not revive if the estates are separated once again “without the same type of action required to bring an easement into existence in the first place.” 7 Thompson on Real Property ?? 60.08(b)(1) at 480 (footnote omitted); see also Restatement of Property ?? 497, Comment h (1944) (“[u]pon severance, a new easement authorizing a use corresponding to the use authorized by the extinguished easement may arise;” however, it arises only “because it was newly created at the time of the severance”).
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9 Replies
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Thanks Leon. An interesting 1991 case with some dicta on easements thrown in for good measure. The ruling is unsurprising. It dealt with a fence that had previously been adjudicated in 1914 as the boundary between two parcels otherwise described by aliquot parts. A merger of the parcels for a mere 15 days in 1977 turned the boundary fence between the two parcels into an internal barrier fence. The clocks of 18 years for adverse possession and 20 years for acquiescence were reset when the owner sold a parcel where the description was by aliquot parts with no reference to the fence.
This action was precipitated when Terry hired a private surveyor and discovered that the fence is not located on the government subdivision lines described in her deed. According to Terry’s testimony at trial, her privately commissioned survey revealed that the deviation between the government subdivision lines and the fence varies anywhere from 100 to 160 feet along her property’s western boundary. By Terry’s reckoning, the fence is east of the government subdivision lines and is located inside the Terry Tract. Hence, Terry claims that the fence is not the true boundary between the parties’ parcels of land and that the description in their deeds, i.e., the government subdivision lines, should prevail.
In response, Salazar claimed adverse possession and asserted a counterclaim that the fence line was acquiesced in and recognized by the parties or their predecessors in title for twenty years under the terms of section 38-44-109, 16A C.R.S. (1982).
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Another case showing that merger of title extinguishes existing elements when the servient and dominate estates become the property of a single owner, but I’d like to see cases that back up what seems to be the majority opinion here, that an easment created by a single owner is not enforceable when the parcels become the property of two owners.
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Leon’s example is not a case on easements. Easements and “mortgage mergers” were included in the decision as analogies to the doctrine of merger regarding adverse possession and acquiescence. While the dicta in Salazar v. Terry discusses the common case of an easement being extinguished at the time of merger, it also reaffirms that, “….the easement will not revive if the estates are separated once again without the same type of action required to bring an easement into existence in the first place.” To me at least, that implies that an easement “created” during common ownership would need to be expressly included in the deed.
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Of course the contrary can be shown. Here is a Colorado example of an implied easement by pre-existing use. It is a 1992 Colorado Court of Appeals decision that was not reviewed by the Colorado Supremes. It held that a common owner who used a road for two years prior to separation created an implied easement by pre-existing use because the use was intended to be permanent.
Proper v. Greager (827 P.2d 591 1992)
The trial court found that Proper was not entitled to his easement because Proper’s “use of the parking lot did not begin until after he obtained his lot.” However, this was error because Proper only had to prove that the common owner used the premises in an altered condition long enough before the conveyance to show that the change was intended to be permanent. And the Haleys were the common owners, not Proper.
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Yes I’ve seen this case before. It’s a set of facts that I recall seeing before.
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That would support the idea that one could write a document promising to include an easement if the lot is ever sold. Then when no easement is included in the eventual deed it would be evidence it was meant to be. Not sure that would work as the pre-existing use is assumed to have been observed and contemplated by the purchaser as the access, while they may never have known about the document promising an easement. But either way, it still isn’t conveying an easement over and to commonly held parcels.
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I meant to say “that I don’t recall seeing before.”
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There is another thread from a couple years ago on this case:”
“Deed stakers dilemma”
(how do you link to another thread?)
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Just copy and paste the URL. I usually enter it both as the text and the link so people know where it is going.
https://surveyorconnect.com/community/surveying-geomatics/deed-stakers-dilemma/
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