My client is selling his property which shares a boundary with his mother.?ÿ His mother accesses her property by an existing dirt road that is on his land.?ÿ Before moving, he wants to leave his mother a means of ingress/egress via easment.?ÿ This is the first easment survey I've performed so my question is:?ÿ Do you set monumentation at the corners of the easment when they do not fall on the property boundary monuments??ÿ?ÿ
Set enough monuments along the margins of the easement so the easement can be clearly identified to be used properly and to give notice that one exists.
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Easements do not have to be monumented, and in fact, I would guess based upon my experience that the vast majority of easements are not. The only time I set monuments for easements is when a client or statute/ordinance requires me to.
Technically speaking, fee simple ownership does not have to monumented, at least not at every single angle point, if the description is sufficient for qualified persons, i.e. licensed surveyors, to place/mark the lines on the ground. That is the critical requirement.
Your client's mother may already have an easement by prescription.
But if he wants to ensure the easement is clearly defined and endures, have him hire an attorney to draft an grant of easement document, then produce a description and exhibit to attach to it. Execute the document and file for record.
If you're going to monument it maybe just have her kid quit claim her the strip of land instead.
The problem with prescription or adverse possession would be the permission that might be assumed because of the family relationship.
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The claimant must prove use of the servient [i.e. burdened estate of] land that is: (1) open and notorious; (2) over a uniform route; (3) continuous and uninterrupted for 10 years; (4) adverse to the owner of the land sought to be subjected; and (5) with the knowledge of such owner at a time when he was able in law to assert and enforce his rights. ??
Under the doctrines of both prescriptive easements and adverse possession, a use is not adverse if it is permissive. Permission can be express or implied. A permissive use may be implied in ? ??any situation where it is reasonable to infer that the use was permitted by neighborly sufferance or acquiescence[.]???ÿ Kunkel v. Fisher, 196 Wn.App 599 (Div. I 2001)
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I would assume that the child gave the mother permission. A written easement is necessary.
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Typically, I would not monument the easement.
I do believe it's a jurisdiction thing. Some states may require an easement be monumented, they have gotten close to that here. If there is an existing road I would centerline it and basically call it the monument buy stating, the centerline of an existing road being more particularly described,,,,,,
The road is the monument.?ÿ
The actual driveway is sufficient monumentation. If there are utilities not congruent with the driveway they may need to be monumented or separately described.. Typically calls from existing monumented corners to starting and ending points of described easements is sufficient.
The easement exists by acquiescence and needs only to be generously described.
Paul in PA
A lot of times utilities are also located in or along an access driveway, phone, gas, buried power drops. When they're all on the clients property an easement isn't an issue but if the land they're crossing is sold to a third party, make sure besides ingress/egress, it also covers utilities. Heard a horror story or two when they were not included and third party buyer turned out to be a jerk. Just food for thought.?ÿ?ÿ
Just because I'm paranoid, doesn't mean they aren't out to get me.
More particularly, the road as it exists at the time the easement is created is the monument. Expanding or moving the road doesn't move the easement, unless of course the grantor allows it. That would be an indicator of a less than intelligent grantor.
NC requires easements to be monumented where they intersect a property line. If the easement runs parallel to the boundary it is considered to be sufficiently monumented.?ÿ
This wasn??t always the case. Therefore there are lots of unmonumented easements out there.?ÿ
I like to tie access easements to nearby boundary monuments at their POB and POT then set a pair of irons near the middle.?ÿ Setting monuments at easement corners that are in close proximity to lot corners can cause more problems than it prevents.
I??d make sure I tied each end to a monument, property line/corner, and/or SPC. ?ÿI don??t believe it??s required to actually monument the easement. ?ÿJust make sure it can easily be reproduced.
Out of curiosity, what state(s) would not recognize an express grant of easement in deed form?
If it's just a strip along one of the boundary lines, I wouldn't monument, unless your state requires it.?ÿ
If it's a curvy or complicated configuration, you might want to set a few at some of the angle points and ends.
Yes, some roads, say a ranch road cutting across a number of draws may need to be treated similar to a stream, calling the road as the monument and as it changes the easement slides with it, for this OP I would suggest placing a date on the centerline description, otherwise the road will shift with any changes and that may not be desired.
However, each situation is different.
Often with these types of easement it's a good idea to file an Exhibit "B" drawing attached to Exhibit "A" and for a road access there is nothing to stop you from overlaying it over the most recent ortho.?ÿ
An access road forty (40) feet wide twenty (20) feet each side of the centerline of an existing gravel road centerline, as shown on Exhibit "B", attached hereto and by this reference made a part hereof; said centerline being more...????..
Add a time constraint either in the preamble or on the drawing. Be sure your ortho is correctly placed.?ÿ
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