I don??t believe that??s correct. ?ÿWhen creating an easment you are granting rights to an individual who owns the dominant estate, not to the dominant estate itself.
That philosophical argument doesnt matter for a platted easement though. It doesnt matter if the easement exists or not while the lots are in common ownership, but when a deed is executed that calls for a lot, and that lot includes an easement the deed would recreate the easement if it had been extinguished.?ÿ ?ÿ?ÿ
Think about the platted easement as an offer of a easement. It is there as a promise to potential buyers. The only way to rescind the easement is to replat. Of course this theory may not work in states with week platting rules (where the people making the rules apparently can't read maps).?ÿ ?ÿ
But merger means combining two (or more ) things into one. If an easement is created across something that is already one there is no merger. There is clear case law about what happens when a merger occurs, but there is not, as far as I have seen, clear case law invalidating easements prior to division.
In Alaska it definitely does, and this is very common, often easements like this are placed on the plat because the platting authorities insist on it. platting authorities. A reference to to the plat includes all information on the plat. A private access easement across one lot for the benefit of another that was created by a plat can only be vacated by a replat. The plat would say something like, "easement for...., created by this plat". There have been cases where a replat to vacate an easement was recorded, but the deed refereed to the original plat, not the replat. This brought the easement back into existence.
An Alaska deed for a lot rarely includes mention of the easements shown on the plat.
The case is different for preexisting easements that are shown on the plat. They would say something , access easement for.... per BK XXX, PG XXX. In this case the easement as shown on the plat is only as valid as the referred document, so if it was released by the dominant estate the fact that deeds will refer to the plat that shows the easement has no effect.
That makes me wonder about a common device here...irrevocable offer of dedication. Where the City doesn't want the street R/W dedicated right now but anticipating future development they require an I.O.D. which they can demand the easement later.
I imagine there's some statute that allows that, if that's the way they commonly do it. But it's also the overuse of these kinds of executory interests (generally not transferable, hence reverter to the subdivision lots) that brought about RAP to begin with in 16th century England. I wonder if there is a time limit on your I.O.D., I recall some States adopted 90 years for RAP but it was traditionally 21 years or 21 years after the death of a party to the transaction. At any rate, a map without a time limit for offer of dedication of the roads would need something like the I.O.D. you mention, otherwise it would place a possible burden on the land in question forever.
I got involved in the question consulting for a local Town 20 years ago or so. Another surveyor (relying on our surveying texts) telling them no need to do anything with paper streets created but not accepted (1930's). But cases were starting to turn up around the country where courts said no, too much time gone by. So the Town went around and formally accepted any of these they thought might be useful in the future. I think they had to pay some of the current landowners to avoid problems.
I wouldn't necessarily apply New York's courts reasoning to California. While state courts borrow from the same sources, and from each other, local custom varies significantly across the country, and courts dont often invladate local custom.
For an example, in Alaska dedication to the public never goes away, regardless of actual use, or even possibility of use. The only way to vacate is through a rigorous public hearing process.
Dave and Duane are both being very clear about the jurisdictions they are talking about, but this is great example of why blanket proclamations of the law on this board are not helpful. There is a reason our licences are not as portable as engineers. While most property laws are similar between any two states, there are many dramatic exceptions.
The following link is to a precedent decision regarding the subject.?ÿ Zanelli v McGrath may provide some guidance.
I argue there's more in common than different, especially considering surveying. RAP is clearly into lawyer territory, but still interesting for us. Several States (Alaska being one, CA not last I knew) preclude RAP from applying under certain circumstances, but some States adopted a uniform statute and majority still use common law RAP.
The cases I found that helped my client make a wise decision were from several jurisdictions, and showed a certain trend. Not sure we had any on point in NY at the time.
I also told them I surveyed it and here's the location of the street whether it be in Alaska or NY or CA.
In California I would start with Witkin??s Summary of California Law, it??s probably in there.
Cal Jur probably has it too.
CA code shows they adopted the uniform RAP statute, which excepts anything authorized by other statutes. The IOD appears to be one of those legal fiction things. If it's accepted then it's recorded and serves notice of an interest just like a conveyance. But apparently doesn't bind the local gov to doing anything with it like an actual acceptance of dedication might. And requires formal abandonment procedures as if it had been opened and used as a street. Sounds exactly like what aliquot describes as Alaska procedure. However, they do show time limits for streets that would connect to waterways (for some reason). Obviously the IOD was created specifically to get around the problems presented by RAP in regard to subdivision streets dedications.
Yep, but I think 1290 is a bit early. My notes say 1535 statute of uses led to the rule. At any rate, I think it's a good rule. But on the other hand, these unopened subdivision streets have to go away at some point in my view.
oops didn't read the second page. will have to see what NY has done with this, but links to ny laws I had don't work anymore and all I find is unsearchable list of laws. what have they broke now, geez.
