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"The 2Point Way" - Easements: Extinguishing A Way: Abandoned, Vacated, or Discontinued?

Although textbook definitions are common, the term “Abandoned” defies easy categorization when applied to travelled ways. To the layman, the terms “abandoned” and “unused” seem interchangeable but this general characterization is often inapplicable in the courtroom. Courts, legislative acts and land use professionals overwork these terms or apply them in situations where “vacated” or “discontinued” might be more appropriate. All of these terms may appear – sometimes badly intermixed – in state statutes and court rulings relevant to private and public ways. In some instances, their meanings must be derived from surrounding language and circumstances.

Regardless of the term used, the context should be considered carefully. Individual state variations in law mandate a thorough examination of the origins and nature of the right in the context of current statutory and common law in the relevant jurisdiction.

The Iowa court wrestles inconclusively with this confusion in its discussion of two separate state laws: McCarl v. Clarke Co.: 167 Iowa 14; 148 N.W. 1015 (1914). But we are of opinion that there is no distinction, as here used in our statutes, in regard to discontinuing or vacating roads. Section 422, before quoted, reads that the board of supervisors may vacate or discontinue any county highway, etc. Section 1484 does not mention the matter of discontinuance, or use that word, but refers to the establishment, vacation, or alteration of roads, etc. A definition for the word “vacate” is to put an end to, and for the word “discontinuance” to leave off; to cease. The books refer to the two words in the same sense….

…A road may not be discontinued unless it is vacated, or possibly by abandonment. Abandonment would be a discontinuance in one sense. The question of abandonment of a road involves, not so much the question of time, though after a long time there may arise a presumption. But it involves more the question of intent and acts of the public. Nonuser is not enough, unless coupled with affirmative evidence of a clear determination to abandon. …Nor will obstructions or encroachments necessarily work an abandonment.

In Town of Goshen v. Casagrande: 178 A.3d 1252 (2018), the New Hampshire court appears to use the term “discontinuance” as a synonym for abandonment—in this case, resulting from a vote at a town meeting. The premise “once a highway, always a highway” is quoted and the court emphasizes that discontinuance is not favored in the law. Clear evidence is required to prove discontinuance. All of these statements are relevant to arguments of abandonment in most jurisdictions.

In general, common law abandonment is only applied to incorporeal rights and is not considered appropriate for fee title estates as seen in the Maine decision Phinney v. Gardner: 115 A. 523 (1921): “The characteristic element of abandonment is the voluntary relinquishment of ownership, whereby the thing so dealt with ceases to be the property of any person and becomes the subject of appropriation by the first taker.” … The term is used in connection with personal property, inchoate and equitable rights, and incorporeal hereditaments, but “at common law a perfect legal title to a corporeal hereditament cannot, it would seem, be lost by abandonment.”

Abandonment comes in several forms, including at least two major types at common law and many state statutory variants. The common law varieties generally are considered more applicable to private roads and driveways than to public highways but exceptions for prescriptive easements are found in some states.

The Source of the Right

When considering any assertion that the status of a travelled way has been diminished or extinguished, evidence relevant to the origins and prior use of the road is critical. Rules generally applied to private ways are sometimes inapplicable to public roads. The right may have been created by common law dedication to the public, by grant, reservation, or through some legitimate statutory process. In other situations, the easement may be based on prescription, implied dedication or the lost grant theory. The legal mechanism that created the right may also mandate the appropriate means of its extinguishment.

Most courts ultimately view public easements as having a greater importance and permanence than is attributed to private easements. This view is highlighted in the Idaho ruling Trunnel v. Fergel: 153 Idaho 68; 278 P.3d 938 (2012): Idaho Code section 40-203(1) governs the specific means by which public highways may be abandoned and vacated. Through the enactment of the abandonment statutes, the legislature has elevated public easements above private easements.

Easements related to recorded plats present additional complications for the unwary. Depending on specific circumstances and state subdivision standards, some roads may be subject to both a private and public right. By common law dedication, a private easement is created when an owner records a plat showing proposed streets and then sells lots in accordance with the plat.

Additional express language (whether located on the plat or elsewhere) may result in a separate dedication of the roads to public use. If accepted, this results in a public way over the same street but created by a separate legal mechanism. While the public way exists, the private right is effectively submerged in the public right. Later termination of the public right may not extinguish the private right.

This issue is discussed in the Utah decision Oak Lane Homeowners Assn. v. Griffin: 219 P.3d 64 (2009). Under Utah law, when an owner creates a plat that clearly identifies a street and then sells the property that abuts the street by referencing the plat, the purchaser of the lot acquires a right that prevents the original owner from vacating or obstructing the street. … When the recorded plat dedicates the street to the public, then a person whose land abuts the platted street obtains both a public and private easement. …. The private easement, which is independent of the public easement, can survive if the public easement is abandoned or vacated, but only if the two easements were once held contemporaneously. This private easement is appurtenant to the property and “constitutes a property right which can only be taken from [the affected owners] or obstructed by making proper compensation.”

Hall v. Pippin: 984 S.W.2d 617 (1998) is a recent Tennessee decision that describes a similar duality in some public easements. Once the public right is terminated by statutory processes, it would require a separate common law abandonment to extinguish the private rights that remain to those property owners along the road. Common law abandonment must be proved by non-use combined with unequivocal external acts that prove an intent to relinquish any further right to use the way in question.

Common Law Abandonment

Once the origins and current status of the way is determined, the appropriate mechanism(s) for extinguishing or changing the status of the way will depend heavily on individual state law.

Common law definitions of abandonment generally describe a complete termination of the easement. In Bernards v. Link: P.2d 341 (1952), the Oregon court bases abandonment on: …conduct of the easement owner manifesting an intent to exercise the easement no longer. This dispute concerns a private easement with a recognizable dominant and servient estate. In this context, the former servient estate is no longer burdened by either a public or private incorporeal right.

The Pennsylvania decision Moser v. Nocito: 41 Pa. D. & C. 3d 82 (1984) honors the general rule that non-use alone is insufficient to extinguish a record easement. It also lists several ways an easement may be obliterated: Extinguishment of an easement can be found where there is: (1) a cessation of necessity; (2) a merger of title, possession and enjoyment of the dominant and servient tenements; or (3) an abandonment of the easement.

Some states apply a separate standard for prescriptive easements – private or public – and recognize their termination by a unique variant of common law abandonment. Unlike abandonment of public easements created by express grant or legislative authority, these courts assert that the prescriptive right is abandoned after non-use for the prescriptive period. Foxcroft v. Foxglen: 57 S.W.3d 187 (2001) is an Arkansas decision that highlights the separate standards applied to public easements created by prescription: Once gained, a prescriptive easement may be abandoned by more than seven years of nonuse. This court applies a similar standard regardless of whether non-use is due to lack of public interest or results from the installation of a gate by the servient owner.

This rule is by no means universal. In Renner v. Nemitz: 33 P.3d 255 (2001), the Montana court applies the same common law standard of protection to public and private prescriptive easements as it does to those created by other mechanisms. Mere non-use is insufficient to prove abandonment because of the importance of preserving property rights; abandonment must be proven with words or acts that indicate clear intent to abandon.

Public Right Extinguished by Statutory Authority

State laws generally include specific processes for statutory abandonment of public highways when specific conditions are met. These legislative acts should not be confused with common law abandonment. Most states have more than one statute in order to deal with various classes of state highways and local public roads.

The New York court describes two different processes applicable to a public way in Stupnicki v. Southern NY Fish & Game: 244 N.Y.S.2d 558 (1962). Then-current state code included provisions for both a “qualified abandonment” and “absolute abandonment,” each with its own specific requirements and radically different results. The town council in this instance had followed the procedure for absolute abandonment.

Judge Bookstein describes the result of a successful statutory abandonment and the disposition of the land formerly covered by the easement: It is the rule that where an easement only exists in the public that upon abandonment the fee is presumptively in the owners of the adjoining land. This is true at least until proof to the contrary has been offered. … ‘The legal presumption * * * as respects a highway or road is that one who owns both sides of a highway is presumed entitled to the fee of the road, subject to the public easement. Upon discontinuance of a road, therefore, the fee is not in the public, but presumptively in the owners of the adjoining land, until proof is made showing ownership.’ This is a rebuttable presumption that can be superseded where evidence indicates otherwise. This quote also confusingly uses the term “discontinuance” as an apparent synonym for abandonment.

Courts consistently emphasize that statutory abandonment requires all involved parties to meet specific standards. Failure to follow the required procedures and process will not avail to extinguish the right. The Utah courts support this stance in Adney v. State Road Commission: 248 P. 811 (1926): …it is seen that the procedure to discontinue, vacate, or abandon a highway is statutory, which must be strictly followed and complied with, else the proceeding to discontinue or vacate or abandon it will be void. Courts will generally distinguish between minor irregularities that do not defeat the statute as opposed to major omissions that are in clear violation of the terms of the law.

Some states have held consistently that a public highway cannot be abandoned at common law. In Reagan v. City of Newport: 43 A.3d 33 (2012) The Rhode Island court highlights special protections for public highways: “As far back as the turn of the [twentieth] century, the Rhode Island Supreme Court has steadfastly held that once a highway has been established, the public right cannot be abandoned except in the manner provided by law for the abandonment of highways and no private right can be obtained either by nonuse or adverse possession.”

…a town cannot abandon its obligation to maintain a right-of-way by simply failing to fulfill its maintenance obligations,” … Abandonment Statute's procedures are the “exclusive means” by which a municipality may abandon a public highway…. a public highway may be abandoned only by strict compliance with that statute…. This Court has made it clear that discontinuance or abandonment of a public highway entails a formalized, semi-judicial process and proceeding.

As is typical of other statutory processes, Judge Suttell emphasizes that all statutory requirements must be fulfilled in order to successfully terminate a public way.

The Ohio court concurs in principle with the Rhode Island standard and justifies this position by analogy to its position on adverse claims against the state. New 52 Project v. Proctor: 907 N.E.2d 305 (2009) concludes that if a public highway is immune to adverse possession claims, it should likewise be beyond the power of individuals to extinguish a public highway. The apparent intent of R.C. 5511.01 and R.C. 5511.07 is to protect public interests and block claims of common law abandonment on public municipal streets.

Even where courts consider common law abandonment for public ways, its application generally is treated with suspicion as seen in Malloy v. Reyes: 61 V.I. 163 (2014): Although it does not appear that any other Virgin Islands court has ever addressed the abandonment of a public easement at common law, virtually every United States jurisdiction recognizes that “‘[o]nce a highway always a highway’ is an ancient maxim of the common law.”

This maxim only “gives way to the rules of law concerning the abandonment or vacation of a highway” which serve as a narrow (and disfavored) exception to the rule. The court concludes that abandonment of public easements is only proved by non-use combined with conclusive evidence that the government has no further need of the way. This portion of the decision cites the Ohio ruling New 52 Project (discussed previously) for authority.

While not controlling in the remainder of the United States, rulings from the U.S. Virgin Islands are sometimes instructive because the lack of existing local precedent mandates extensive research into mainland decisions. In this instance, the judge quotes rulings from Illinois and New York in addition to U.S. Supreme Court precedent.

Changes to Statutory Standards

An additional level of confusion is introduced when the purported abandonment took place prior to subsequent legislation. The Connecticut decision Nicholas v. Town of East Hampton: CV040103439S; Conn. Super. (2005) considers public and private rights in light of significant legislative changes. This ruling recognizes two separate scenarios that could be associated with the abandonment of a public way: The public rights in a highway may be vacated either by being discontinued or abandoned. …Prior to the 1963 enactment of General Statutes 13a-55, whenever a public easement was extinguished, both the public easement and the private easement of access were eliminated, so that the owner of the roadbed was restored to his original dominion over the land. … Since the enactment of General Statutes 13a-55 in 1959, whenever a highway is discontinued or abandoned, the owner of the land over which the highway runs holds that property discharged of the public easement, but subject to the private easements of those living along the road. As is the case with other legislative changes affecting real property interests, statutes of this nature generally do not operate retroactively due to possible deleterious effects on legitimate property rights perfected under the previous system.

More recently, the U.S. District Court provided a rationale for the statutory changes described above. Garlasco v. Town of Bridgewater: 602 F. Supp. 2d 396 (2009) observes: [T]he effect of 13a-55 is to alter the common law consequences of the discontinuance of a public highway. While, before the statute, discontinuance extinguished both the public easement of travel and the private easement of access … after the statute, the public easement ceases but the private easement remains. The abutting owners now continue to have an easement of access over the discontinued highway.

Withdrawal of Dedication

Dedication without acceptance does not create an easement, but some courts hold that a proven dedication is an irrevocable act as a permanent offer to the public. Other states conclude that the dedication can expire after a long span of time—often the duration mandated in the statute of limitations for real property. Unaccepted dedications may pose additional problems for land use professionals.

Statutes allowing the withdrawal of dedication generally are limited to a narrow class of “paper street” where a formal dedication by plat has occurred but acceptance cannot be proved by writings or actions. In Steadman v. Town of Pinetops: 112 S.E.2d 102 (1960) the North Carolina court describes the process to extinguish a dedication: …where streets are dedicated to the public by the registration of a plat showing streets and alleys thereon, and such streets or alleys are not opened or used by the public for a period of fifteen years from and after the registration of such map or plat, the dedication of such streets and alleys become subject to withdrawal under the provisions of G.S. 136-96This statute has the effect of creating a conclusive presumption of public abandonment of the dedication after 15 years but is subject to several exceptions. It also identifies North Carolina with that group of states that allow a dedication to expire.

Additional discussion of other statutes relating to withdrawal of dedication can be found in Vivian v. Roscommon: 433 Mich. 511 (1989) and Priolo v. City of Dallas: 257 S.W.2d 947 (TX) (1953).

The examples above primarily focus on highways and represent a cross section of the possibilities nationwide. Public parks, squares and beaches are frequent sources of disputes over public access. Rail lines represent yet another category of public ways with separate state and federal standards that control their termination. Negative reciprocal servitudes and other subdivision restrictions may be abandoned in certain circumstances.

Land use professionals should determine the source and nature of the existing right and consider appropriate common law and relevant statutes. Given the complexity of the law as it relates to servitudes, the variety of possible claims of abandonment – reasonable or otherwise - would appear to be endless.

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