Easements and the Boundary Consultant: Dedicated Highways Don't Expire due to Old Age
The Case of the Conveniently Forgotten Easement
Kristopher M. Kline, P.L.S., G.S.I.
At first glance, these two cases would seem too dissimilar to be included in the same article. One tried in 1849, the other only a few years ago. The first involves dedication of a public square by recorded plat, the second concerns the creation of a private road by partition and considers the seldom-discussed “common scheme doctrine”. Finally, the first case was tried in Ohio, while the second hails from Massachusetts.
The Ohio case
The dispute that culminated in the opinion Huber v. Gazley  (1849) developed in the first half-century after the formation of the state of Ohio. The central issue was the ownership of a town square shown on a 1796 map depicting a proposed town. Acting on his own behalf and for several adjoining property owners, Huber contended that the town square had been dedicated to public use as the proposed town square of Williamsburgh, Ohio. The lands involved were completely undeveloped and apparently unpopulated at the time the map was drawn. Court records specifically recognize that the proposed town square had previously been used as a woodlot; the purchasers of adjoining lots had routinely cut firewood on the tract designated as the town square.
When William Lytle laid out the town of Williamsburgh, a plat of the proposed town was prepared showing proposed lots, streets, and alleys. In addition, court records note that Lytle: “in said plat, set apart, dedicated and appropriated to the public, for the use, benefit and advantage of all persons who might thereafter purchase lots in said town, a certain portion of the land within the bounds of said town plat, and near the centre thereof, containing about five acres; which said tract was then and is now known and described in said plat as the “public square”.” Numerous lots were sold by Lytle and records show that the purchase prices were augmented due to the added value created by proximity to the public square.
In 1800, the town was designated the county seat of the newly created Clermont county. A courthouse and jail were built on the property in 1803. The situation remained unchanged until 1825, when the county seat was re-located by an act of the general assembly. At this point, the residents of the town took possession of the lands in question. To further confuse the issue, Lytle had recorded a second plat of the town in 1815. This more recent map changes the designation of the “public square” to “public ground.” This second map also added a citation that seems intended to act as a reversion clause for this tract should the county seat move to a different location.
Circa 1825, a dispute arose between Lytle (and his creditors) and the county. Some political and financial maneuvering followed, resulting in deed from William Lytle to the United States Bank, which was in turn followed by an action of ejectment instigated by the bank. The property was eventually re-sold in 1846 to Sayres Gazley, who then took possession of the public square and attempted to exclude all others based upon a presumed chain of title from William Lytle.
The final argument for Gazley as recorded in the court opinion is certainly creative, though ill-advised: “He insists also upon the great lapse of time, since the rights of complainant accrued, as a bar to the relief sought by the bill.” This argument faced an uphill battle with the court because the square was used for governmental purpose for over 20 years and then held open for common use by the town residents. A reasonable argument could certainly be made that lands dedicated and held in trust for public use could not be casually conveyed to a private individual.
Gazley also attempted to prove title to the square based on prescription. At this point, Ohio common law was in its formative stages. Two contemporary Ohio rulings , demonstrate that, while the state itself was considered to have sovereign immunity against adverse possession, that immunity did not necessarily extend to the towns incorporated within the state. However, both of these decisions refer to prescriptive claims where public land had actually been physically possessed for many years by a private entity. Note also that neither of these ruling allowed legitimate rights of public use to be compromised. Later Ohio rulings support protection against prescriptive claims of lands dedicated to and accepted by the public.
The attempted application of adverse possession doctrine was of no avail for Gazley. His counsel argued that the county had taken the property from the public by adverse possession. However, this argument was rejected since the use of the square by the county had always been consistent with the presumed rights of the public.
Since Clermont County did not yet exist when the original plat was drawn, the court reached the obvious conclusion that there could have been no possible intent for the public square to be the county seat. In addition, the court was able to see through Lytle’s attempt to add restrictions after the fact by the recordation of the later survey and the addition of a reversion clause. They ruled that: “If this ground was dedicated by the proprietor in 1796, to the use of the town, then it follows that no subsequent act of his can control that use, and the limitations and reservations in the plat of 1815 are of no force whatever.”
The Massachusetts case
Campbell v. Nickerson  was recorded in Massachusetts in 2008. The critical questions in this dispute involve Eli Rogers Road and a special permit granted to Carrie Nickerson to allow construction of a house that would use the road for access. The road was created almost 300 years prior to this litigation. Although the lands involved were undeveloped at the time the easement was created, extensive development had since occurred and at the time of the trial, the surrounding lands were apparently heavily developed. The easement was created either by grant, or by some mechanism similar to a grant that is referred to as the “common scheme doctrine.” Eli Rogers Road (the resulting easement) was apparently intended for use by a specific group of individuals – in this case, all landowners within the original partition of the parent tract.
The parent deed that conveyed the lands in question to several proprietors was recorded on July 20, 1711; this document is referred to as the “Sipson Deed” in the court opinion. In July of 1713/1714*, the proprietors recorded an action dividing the land among themselves, and included the following language in the recorded instrument: “…that each and every of said proprietors of said lands and their heirs and assigns shall forever have and enjoy free liberty of carting, driving and passing over any of said lots both for egress and regress.”
In the lower court, attorneys for Campbell argued that this portion of the action was void due to the effect of the doctrine of merger on attempts by individuals to create an easement over their own land for their own personal use. Despite that argument, the lower court decision noted that: “the proprietors intended the rights of passing over the lots to apply to future divisions of the land, and that those rights were established in a manner comparable to the later "common scheme" doctrine. He concluded that the "votes [of the proprietors] amounted to a grant of easement to all those owning land located within the Sipson [deed], including land of both plaintiffs and defendants.” An excellent discussion of the common scheme doctrine appears in “Easements Relating to Land Surveying and Title Examination” by Donald A. Wilson.
On appeal, the plaintiffs made the unlikely claim that: “[n]o easement created solely by an unrecorded proprietors' vote in the early 18th century is valid against a party who acquired the servient estate in the 20th century without actual knowledge of that vote.” This is certainly a creative argument because there no credible case law in any jurisdiction that would assume that a public way intended to be perpetual would simply “wear out” after a few centuries. The court cites substantial case law supporting the method by which the easement was created in Massachusetts. The Judge also observed that it was irrelevant that the plaintiff was unaware of the original vote creating the easement, since the present Eli Rogers Road is clearly evident to casual observation.
Campbell v. Nickerson concludes: “The plaintiffs' assertion that the easement is not valid because it was not recorded is entirely without relevant legal support. It ignores the long and unchallenged history of conveyances made by proprietors.”
The final (and most insidious) argument by the plaintiffs stated that modern day purchasers: “can ill afford to bear the risk of ancient unrecorded easements by grant,” and further assert that recognizing such easements would disrupt title examinations. They add that the decision of the Land Court “puts into question between 50 to 100 other parcels of land, covering at least 1,000 acres of land on Cape Cod.” This seems to be a rather pathetic attempt to play on the fears of possible future litigation between other property owners in the area. The rather curt response by the court indicated that there was no apparent problem, and that current owners were not being subjected to inappropriate risk. As one would expect at this point, the right to use Eli Rogers road by the defendants was upheld.
The obvious similarity between these cases is that both involve an attempt after the fact to eliminate a legitimate vested interest in property. Numerous court opinions have been critical of lower-court rulings (or acts of legislature) that strip owners of property rights to which they were entitled based on previously-existing common or statutory law.
Considering land titles and the possible adverse effect of later statutes that act on an existing title in a retroactive manner, the Supreme Court of Maine stated: “It cannot by a mere act of the legislature be taken from one man, and vested in another directly; nor can it, by the retrospective operation of laws be indirectly transferred from one to another…” 
Another common thread in these decisions is the persistent conviction that the passage of time by itself is insufficient to cause easements or other incorporeal property rights to expire or otherwise mysteriously vanish. In instances such as those described above, the surveyor would do well to remember the old maxim “Once a road, always a road.” While several legal mechanisms exist whereby easements may be legitimately eliminated, the mere lapse of time (unsupported by other significant circumstance) will seldom extinguish an easement.
Surveyors and title researchers may be tempted to argue that the span of years recognized in the relevant marketable title act defines the limits of any research requirement regarding easements. However, the lengthy list of exceptions (often included along with definitions of marketable title) generally provide additional protections for easements of record. This is generally true even where the current deed makes no mention of the easement, provided that some form of public notice of the existence of the easement is demonstrated. In addition, protections based on dedication for public use will often shield an easement from casual destruction.
Possibly the most important conclusion to be drawn from these two cases is that neither the surveyor nor the general public can afford the luxury of assuming that ancient vested property interests are of no consequence in the modern world.
* “The judge noted that the adoption of a new calendar, changing the start of a new year from March to January, often resulted in the notation of 1713/1714 on documents executed in the interim period. In this case, January 25 was only a few months after November, 1713.”
List of Sources:
1. Huber v. Gazley: 18 Ohio 18 (1849)
2. City of Cincinnati v. First Presbyterian Church: 8 Ohio 298 (1838)
3. City of Cincinnati v. Evans: 5 Ohio St. 594 (1855)
4. Campbell v. Nickerson 73 Mass. App. Ct. - 07-P-1420-(2008)
5. Proprietors of the Kennebec Purchase v. Laboree: 2 Me. 275 (1823)