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Municipal Withdrawal? Best Instrument to Accomplish?
I have a situation where a municipal entity wants to create an easement on their own land for the purpose of constructing a rail line which they want to manage. There’s a strong case that merger of title will extinguish the easement upon creation – a null action. While the content of the thread listed below and rudimentary research suggests that merger of title can be denied under the right conditions with the support of an attorney, an instrument like a Notice of Land Use Restriction sounds like a better fit (on the surface).
I think I want the municipal equivalent of a Federal Withdrawal.
In https://surveyorconnect.com/community/surveying-geomatics/who-receives-the-easement/ Warren Smith notedA recorded Notice of Land Use Restriction encumbers the property so described and for a specific purpose. It imparts constructive notice to a future class of purchasers or other third parties. The logistics of including all the proper Subject To’s and Together With’s are left to the proper parties charged with the execution of those future transactions.
Does anyone have a sample Notice of Land Use Restriction where a public entity reserves rights (similar to an easement) unto themselves for some purpose (other than public access/use)?
Any suggestions as to what instrument (not an easement to the public or the public entity holding title) will do this most cleanly?
And yes I’ve seen tons of easements granted from a city to the same city and I’ve also seen that same city convey the parent parcel to another party without referencing the easement – that’s a mess that we can probably avoid by using another instrument.
Thanks
PS please excuse the double post as I had attempted to add this onto Paden’s thread… after the first response I could see that it might be tough to get responses limited to discussing the pros and cons of various instruments.
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4 Replies
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I don’t think you want anything like a federal withdrawal. Federal (and state of AK) withdrawals are for withdrawing specific parcels from the public domain, but they would be meaningless if the parcel was no longer federal land. The patents that reserved the right to build railroads were blanket reservations. I don’t think you’d want to do that.
Is the issue that you don’t trust the municipality to reserve themselves an easement in the future when they transfer title? One way to solve that problem would be to plat the parcel as a one lot (or more) subdivision with an easement for the railroad. Merger of title is not an issue with easements created by subdivision plat in Alaska. This would be a relatively easy process under some platting authorities in Alaska, but some may balk at the idea.
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Aliquot – You are correct – I don’t trust 90% of the city governments/boroughs to reserve the easement when they later convey the land. I also don’t trust them to start using the land for some new need.
I agree that the subdivision approach is bulletproof – it just introduces all of the unrelated subdivision regulations such as lot shape, access, frontage, soils, etc. when there is no immediate plan for how adjoining lands will be used. (Look at Fairbanks – as I understand the proposed subd regs require physical road construction so they would not accommodate a reservations for a future highway project (unless you can get an exemption and build a dirt road).
PLOs for roads are examples of withdrawals with possibly appropriate characteristics. The PLO puts everyone on notice, is fast, and easy.
Warren Smith provided an example of a Notice of Land Use Restriction (Notice of Minor Subdivision Restriction) that is recorded and would be indexed using the parent parcel legal (as well as grantor/grantee). Thanks Warren - that may be able to be tweaked to work for the easement situation I’m looking at. It’s easily discoverable on subdivided lands and USS. Finding the notice could be hit/miss where the easement is on lands that are only referenced by MTR (no subdivision).
Maybe… Notice of Land Reservation. Land rights described herein are ineligible for conveyance as they are reserved for the following described easement: identify easement use… Said reservation will terminate upon creation of the easement described above. Lands reserved are shown on the attached parcel exhibit. (the parcel exhibit will essentially be plat quality showing parent parcel, found monumentation, adjoining parcels IDed, dimensions…).
That could be indexed as well as any easement, wouldn’t have merger of title issues, is probably defensible in court… seems like it has potential. Still has issues with finding it in an unsubdivided area. In this case it would show up in the borough GIS.
If anyone sees problems with that let’s talk about it – if the problems are few and manageable, I’ll float it up the chain for legal consideration. There would need to be muni/borough code in the planning/platting section to recognize the “Notice of Land Reservation” as a valid instrument in the jurisdiction. I will review the code associated with Warren’s Notice.
This is a common issue – it seems like someone must have come up with a clean solution.
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John,
Been following this thread and I offer another approach you might want to consider and offer up to the pertinent parties. If the Borough/Municipality wants to retain management authority for what sounds like a railway spur on their owned lands, how about involving the Alaska Railroad as the easement grantee? That way easements could be granted without the merger of title issues, and with the easement properly recorded and indexed to the legal land descriptions it should be discoverable as a valid encumbrance unless revoked or extinguished by whatever language the easement document. An associated record of survey could be prepared and recorded providing all of the location information for the easement. Then in concert with the easement and ROS recordings a management agreement between the ARR and the Borough/Municipality is executed and recorded giving the Borough/Municipality the management rights they are seeking, with a possible means for future termination of the agreement which would allow the easement to remain with the ARR for continued use as part of the state-wide rail system? Just a thought.
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The PLOs restricted the federal government from using the areas for anything besides a highway (i.e. homesteading), but on there own they don’t create easements. The easements were created by reservations in the patents and the deed the federal government issued to the state shortly after statehood. Without these, the PLOs are meaningless on non federal land.
You are very right, the subdivision process could complicate matters, but in Fairbanks for instance, non of the subdivision improvement requirements (i.e. roads and lot shapes) apply if you are not creating additional lots. It is actually a relatively easy process.
The notice of land reservation may work, but because it is not frequently used in Alaska, you will have to do what I almost never recommend, consult an attorney. It would certainly put the municipality on notice if they ever consider selling the parcel, but is the notice binding on the municipality that created it in the first place? Cant they just change their mind? I don’t think there would be a problem finding it though. Municipalities normally order a full title report before any transaction and the MTR indexing is sufficient for documents of all kinds over large swaths of the state.
I would avoid involving the AKRR unless you are 100% sure the AKRR will be the one and only entity that needs to use it. Once granted to them it will be almost impossible to claw it back or widen the scope to allow other users.
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