Doctrine of Merger can Extinguish Record Easements
Updated: Aug 14, 2019
It seems at first that the doctrine of merger falls well within the province of the legal profession, but the land surveyor can glean valuable lessons (and thereby avoid some professional blunders) from an understanding of the various issues relating to this principle. The Massachusetts decision Busalacchi v. McCabe: 71 Mass. App. Ct. 493; 883 N.E.2d 966 (2008) sums up the basic concept in a very succinct manner: "The doctrine of merger requires that a servitude terminates when all the benefits and burdens come into a single ownership." In other words, you can’t have an easement over yourself to yourself.
Surveyors often are involved in mapping proposed parcels and associated easements that may be necessary for the reasonable enjoyment of those tracts, so they must be aware of the order in which new tracts and their associated easements are created. While surveyors will not likely be called upon to testify as to whether ownership of dominant and servient tracts constitute unity of title, they may be involved in situations where understanding these concepts (and some additional research) may benefit the client.
One common application of this doctrine will (in certain circumstances) prevent owners of a single parcel of land from creating an easement over one portion of their tract to serve another portion of the same tract prior to a proposed subdivision of the parent parcel. While an easement may be created simultaneously with (or subsequent to) the creation of the new tracts (which would otherwise be landlocked) it is unwise to attempt a grant of an easement to the proposed tract before that tract has been separated from the parent parcel. In this situation, the court may rule that the easement is void from its inception. This principle does not apply to easements crossing the parent tract but serving some third party.
Of equal significance to land use professionals is the possibility that a legitimate express easement may be terminated if the dominant and servient estate are later brought under single ownership – although this is not always a foregone conclusion. This outcome is based upon the widely recognized premise that, where the landowners own the servient tract and then purchase the dominant tract, they then have the right to use any part of the combined tract in any way which is not contrary to the law. Any easement over one part of the tract to serve another part of the same tract would therefore serve no purpose.
A recent New York decision underscores the potential pitfalls of the doctrine: "The general rule is that a person cannot have an easement in his or her own land, and, therefore, when both the dominant and servient estates are entirely owned by the same person, the easement is extinguished by the doctrine of merger. Simply, under those circumstances, the easement serves no purpose because the owner may use either estate freely. Significantly, however, merger is not effective, and an easement is not extinguished as a result of the merger, if the person owning both the dominant and servient estates only holds title to the servient tenement as tenant in common with another. He must own the entire title to both lots in fee if the easement is to terminate by merger." Daniel v. Carnevale: 300 A.D.2d 893; 752 N.Y.S. 2d 737 (2002).
In addition to the complications introduced where the parties are tenants in common, this opinion emphasizes the “mortgage exception.” In this instance, the dominant estate was subject to a mortgage when it was purchased by the owners of the servient estate. The court ruled that the interests of the mortgagee must be protected - therefore, there was no true unity of title between the tracts.
The doctrine of merger may be formalized in state statute, as is the case in California. In that jurisdiction, Civil Code Section 811 notes that “a servitude is extinguished by the vesting of the right to the servitude and the right to the servient tenement in the same person.”
Depending on the jurisdiction, there may be either one or two basic requirements that must be met before an easement is extinguished by the doctrine of merger.
The first (and most universal) requirement is “true unity of title”, which only occurs when: "…two ownership interests are coextensive. Coextensive means that the type of ownership interest being united must be the same; a fee simple absolute interest, for example, cannot be merged with an interest in joint ownership to extinguish an easement." Busalacchi v. McCabe: 71 Mass. App. Ct. 493; 883 N.E.2d 966 (2008)
An Ohio source notes: "To effectively terminate the easement, the fee title with right of possession of both tracts must vest in the same party or parties, coextensively, and equal in validity, quality and all other circumstances of right." Heiner v. Kelley: Case No. 98CA7: 1999 Ohio Court of Appeals. In both cases cited here, the court upheld the doctrine of merger and yet ruled that the easement in question still existed due to the lack of unity of the respective property titles.
The second requirement is more problematic because it deals with the length of time the titles are merged. Most courts hold that even a momentary merging into single ownership is sufficient to extinguish an easement.
However, a few courts consider intent of the purchaser and the duration of unity of title in their application of the doctrine. As described in the Massachusetts case Busalacchi v. McCabe (cited previously): "the unity of title between the affected parcels must be of a permanent and enduring estate, an estate in fee in both, because the merger of the easement arises from that unlimited power of disposal."
Another similar example is found in the Illinois decision Napleton v. Ray Buick, Inc.: 302 Ill. App. 3d 191; 704 N.E.2d 864 (1998): "A merger takes place when a greater estate and a lesser meet in one and the same person, in one and the same right, without any intermediate estate. The lesser estate thereby merges in the greater. But a merger is not a necessary result of the union of the two estates in the same person. The intention and interest of the party who unites the two estates in himself will determine whether or not a merger takes place."
At least one state goes even farther in this regard; California law requires that the tracts in question not be “liable to be disjoined again by operation of law,” as seen in Zanelli v. McGrath: 166 Cal. App. 4th 615 (2008).
An intervening life estate on one tract may defeat the application of merger. In like manner, an easement will not be extinguished when only two or three lots from the original parent tract are merged and the easement was a common right to access all tracts within the parent parcel.
A recent Ohio decision highlights the complex analysis necessary when applying this doctrine. The court ruled that a common driveway easement between two lots fronting the same street was extinguished by the doctrine of merger, but then concluded that another easement imposed on the street area was still in existence since that easement was over lands that were not merged into single ownership. Shah v. Smith: 181 Ohio App. 3d 264 (2009)
Piedmont Environmental Council v. Malawer: 80 Va. Cir. 116 (2010) describes a dispute over a conservation easement and also illustrates several complications related to the doctrine of merger. In this example, an individual purchased property subject to a “negative easement in gross” which was intended to “protect scenic, natural, agriculture and open space values” of the area. The Piedmont Environmental Council (P.E.C.) was named as the grantor and also as one of the grantees in the deed of easement. The plaintiff claimed that the easement was void due to the doctrine of merger, as this principle generally does not allow “a holder of a fee simple interest and an easement to be one and the same”.
In this case, the court upheld the easement for several reasons. While one named grantor and grantee were in fact the same organization, other entities were named in the deed of easement which resulted in a lack of true unity of title for the parcel in question. More importantly, a recently enacted Virginia statute specifically authorizes the creation of easement of this type – superseding the existing common law.
Another common misunderstanding arises when an existing easement between a dominant and servient estate is eliminated through the doctrine of merger, and the dominant (or servient) estate is then re-conveyed at some later date. It is widely recognized that the easement does not automatically re-emerge upon the later conveyance – rather, an entirely new easement must be created by some legitimate process (such as by express grant or reservation) even if it is to occupy the same location as the former easement. Greene v. Butler, 2001 Conn. Superior Court: Case no. CV000083025S
A recent Missouri case finds a gas utility company pitted against the county government over the relocation of a gas line. The county held fee simple ownership of the road bed according to state statute, but the plats upon which the fee transfer to the state were based also included an easement for gas lines within the road. The county argued that its fee ownership of the road constituted a unity of title; however, the court ruled that the gas line easement was a separate possessory interest over the gas lines within the easement and that total unity of title had not been established. St. Charles Co. v. Laclede Gas Co.: 356 S.W.3d 137 (2011)
In a related issue, courts have held that the doctrine of merger may eliminate the effect of acquiescence or the provisions of a valid boundary line agreement. Salazar v. Terry describes an unlikely comedy of errors which begins with an incorrect survey by the county surveyor. The two adjoiners relied upon the survey and built a fence in accordance with the later survey. Many years later (long after the death of both of the original parties), the properties were united under single ownership, at which point the new owner sold one parcel according to the original deed description for that tract.
This Colorado decision includes an extensive analysis of the effect of the doctrine of merger upon existing fence lines, prescriptive rights, and boundary line agreements: "A division fence often loses its utility and always loses its legal significance when separate ownership of the parcels is merged in one owner…Where, after a boundary agreement, title to the parcels affected become united, it has been held that a subsequent grantee of one of the parcels takes according to the terms of his deed unaffected by the agreement." [Cites omitted] Salazar v. Terry: Colo. 911 P.2d 1086 (1996)
The Colorado court ruled that the merging of the two titles for a period of 15 days “wiped out” the effect of any boundary established along the fence by acquiescence and prescription. In addition - upon the later sale of one of the two parcels by the original deed description - any application of acquiescence and adverse possession must begin anew.
The unfortunate truth is that the status of an easement contained entirely within the boundaries of a single proprietor may be questionable until such time a court rules upon its validity. Thorough research of the tracts in question will reveal some of the answers and may (just possibly) keep the surveyors reputation intact.