25 Am. Jur. 2d Easements and Licenses,?ÿ?? 89.Adverse possession:
An easement may be extinguished by adverse possession. 1 To claim adverse possession of an easement, the servient owner must prove exclusive, 2 continuous, 3 and open and notorious use of the easement area 4 adverse to the easement holder's right to use the easement, 5 for a specified period 6 by clear and convincing evidence, 7 and the burden on the servient estate owner to prove unreasonable interference with an unused easement is high. 8
The prescriptive period is triggered where the use of the easement unreasonably interferes with the current or prospective use of the easement by the easement holder. 9 Only use that is incompatible or irreconcilable with the easement holder's authorized right of use is sufficient to justify terminating an easement by adverse possession. 10 A party claiming to have terminated an easement by adverse possession must prove that the use interferes significantly enough with the easement owner's enjoyment of the easement to give notice that the easement is under threat. 11 Determining what constitutes unreasonable interference will be heavily fact dependent. 12 Where the easement holder has not used the easement for some time, or at all, the servient estate owner enjoys wide latitude with respect to use of the easement area, and a showing of extensive activity will be required to demonstrate adversity. 13 Temporary improvements to an unused easement area that are easily and cheaply removed will not trigger the prescriptive period; however, permanent and expensive improvements that are difficult and damaging to remove will trigger the prescriptive period. 14
Where the acts of the servient tenant render the use of only part of a right of way impossible, the easement is extinguished
only as to that part. 15
Observation:
While a claim to terminate an easement by abandonment focuses on the conduct of the easement holder, a claim to terminate an easement by adverse possession focuses on the nature of the use of the easement area. 16
-Break-
3 Tiffany Real Property, Chapter 14 Easements, ??825 & ??827 (3d ed.) discuss abandonment and adverse possession with more cites to NY cases.
Wouldn't removal of the tracks show intent to abandon?
And that's the ticket. Passive anandonment does not have the crown related limitations in nearly as many states as AP. The common prescriptive period is 5 years, nearly always shorter than AP...
The problem appears to be proving the easement owner abandoned the easement by its acts (for example removing the tracks and RR structures).?ÿ The building was built by the servient estate which doesn't necessarily go to abandonment by the dominant estate.?ÿ Adverse Possession is concerned with the acts of the servient estate making the easement unusable mainly by building a building.
By removing the sidetrack and switch to it the RR overtly shows no interest in the use of the easement, thus it is abandoned.
Paul in PA
I can only imagine how the Kingston Trio would put this scenario into a song... 🙂
I can only imagine how the Kingston Trio would put this scenario into a song... 🙂
Maybe Charlie is in a car on an orphaned section of track on the other side of the building all because the MTA refuses to abandon the R/W, so vote for George O'Reilly for MTA Board to get Charlie off the MTA.
An easement can be considered abandoned when the dominant estate takes affirmative action to permanently?ÿvacate the easement. Non-use of the easement alone does not qualify as abandonment.
In my mind the removal of the physical plant appurtenances (tracks) is an affirmative action of non-use by the dominant estate. Whether that rises to the level of vacation is yet to be determined.
An easement can be created by implication.?ÿ Simply put, if there is use over lands by others that has gone uncontested by the fee estate; and by all visible means an easement is in use,?ÿ an easement can be considered to exist without the benefit of a conveyance.?ÿ I'm thinking the reciprocal could be proven: If the easement in question?ÿhas gone?ÿunused by the dominant estate AND use?ÿby the underlying fee has been continuous since removal of the physical appurtenances the easement has been vacated by implication.
(and that's probably why I'm not an attorney...)
?ÿ
I know there is a formal process that has to be done to abandon a railroad.?ÿ I would think this might not be the case here since its not a main line.?ÿ
I also know people often make the assumption you can't get adverse possession from a government entity.?ÿ Same thing applies to shorting a ROW width for a street if all the lots are short on distance.?ÿ People think you shouldn't short the ROW but give it its full width.?ÿ Jeff Lucas says this is not the case.?ÿ Problem is most of the time people can't fight "city hall" so the issue rarely comes to court let along an appeals court.?ÿ He did quote some cases where people did win cases but its just rare since the expense is high to fight something like this in court.
I know there is a formal process that has to be done to abandon a railroad.?ÿ I would think this might not be the case here since its not a main line.?ÿ
I also know people often make the assumption you can't get adverse possession from a government entity.?ÿ Same thing applies to shorting a ROW width for a street if all the lots are short on distance.?ÿ People think you shouldn't short the ROW but give it its full width.?ÿ Jeff Lucas says this is not the case.?ÿ Problem is most of the time people can't fight "city hall" so the issue rarely comes to court let along an appeals court.?ÿ He did quote some cases where people did win cases but its just rare since the expense is high to fight something like this in court.
In most states it really is not possible, but that does not mean the ROW always gets its full width.?ÿ?ÿ
By removing the sidetrack and switch to it the RR overtly shows no interest in the use of the easement, thus it is abandoned.
Paul in PA
That may be true in PA, but in many states its not that easy.
i got kicked a similar one recently - two brothers had bought a gas station out in the relative boonies.?ÿ TxDOT comes to them in the course of the design and public comment phase of a new overpass, says their gas station is encroaching in the old highway r.o.w. (which ran behind the station).
they paid the title company to run a 75 year chain, which comes back clean.?ÿ title company refers to me, find that 77 years ago the old highway was dedicated as a uniform 100-foot r.o.w. and never abandoned when the new alignment was dedicated in front of the station some 12 years later.?ÿ old highway still has some old Type I (concrete obelisk) monuments here and there along it's 4500' length, but for the most part it's 15' of lumpy, potholed asphalt hemmed in by 40' of unkempt vegetation on either side that serves as a neighborhood road for a dozen or so homes and businesses.?ÿ
i call the county, thinking perhaps TxDOT had ceded maintenance to them at some point and the owners could possibly go to the county for a quitclaim (which said county would undoubtedly be more likely to do than TxDOT).?ÿ they punted on maintenance.?ÿ TxDOT claims they maintain it, but can't produce any evidence of doing so, and by all outward appearances nobody maintains it at all.?ÿ?ÿ
i tell the owners the deal and they basically said that's what they were afraid of.?ÿ sad part for them is TxDOT doesn't even want anything to do with the old r.o.w. that the building encroaches upon, they're just using it as a bargaining chip to elbow the dudes out of free r.o.w. along the front.
it's yet another reminder, for me at least, that we- as surveyors- work in a nice little theoretical bubble, but that owners and occupiers operate in much more of a money talks/bul*s*it walks environment.?ÿ there's what we determine is right, then there's what $ decides is right.
and i go pounding my head sometimes at how governmental entities can be so ruthless, but then remember that their charge is to protect the public interest.?ÿ most of these cases exemplify various agencies doing just that- defending the public's fee (or easement) interest to an extent that probably every private land owner wishes they could.?ÿ now of course the point could be made that the public's interest is not always best served by going tooth and nail over a 60-year old brick building encroaching 12 feet into a right-of-way that was, for all intents and purposes, abandoned by its dominant entity 65 years ago...?ÿ but as a default angle to take in such cases, it's probably not a bad one.
A good lesson in why we always need to do our research.
A lot of you may be right on the abandonment but the MTA has made it clear to the land owner that they will not go down without a fight. The buyer walked away yesterday saying that because of all of this the value of the property is significantly lower. Said it wasn't worth fighting. The seller does not have the funds to go after MTA and is still figuring out what to do. Right now there are two tenants in the buildings with long leases so he's probably going to sit on it until he gives it to his kids in his will.?ÿ?ÿ
