It is very common to see easements disregarded due to their status as a “lesser interest” in land. However, they have boundaries—just as do tracts conveyed in fee simple. On one side of the line, a right may be exercised; while on the other, the same activity would be considered a trespass. Lack of knowledge on the part of landowners—or land use professionals—is no excuse in the eyes of the courts. Land surveyors should be prepared to measure and document the limits of property rights, including those that are considered incorporeal.
Methods for determining the location of a servitude may differ, depending on the type of easement and the mechanism by which it was created. Furthermore, the historically poor quality of easement descriptions present unique challenges. Additional common law principles—such as practical location—were developed to compensate for this general lack of clarity. Servitudes should be surveyed and marked with the same care as any other boundary, as illustrated by the following examples.
Easement Platted Incorrectly
The North Carolina decision Duke Energy v. Bruton Cable: 233 N.C. App. 468 (2014) highlights the dangers of insufficient easement research. In this instance, a surveyor recorded a plat in 2003 showing a new subdivision crossed by an existing power line easement. The recorded deed clearly described an easement 200 feet wide, but it was represented on the plat as being 150 feet wide.
Linework associated with the easement was not tied mathematically to property corners or to the remainder of the subdivision, leaving developers little option but to scale off the plat to determine the buildable area of the affected parcels. The 50-foot discrepancy between the deeded and mapped easement locations made any attempts to use the plat to determine the easement location unreliable. This situation resulted in the removal of two houses, both in the latter stages of construction. Charges of negligence against the surveyor were complicated by applicable statutes of limitations, but the court condemns the substandard work as the direct cause of the litigation.
Easement Location vs. Limits of Private Ownership
In Core v. S.W. Bell Tel. Co., 673 F. Supp. 974 (1987), the U.S. District Court (Arkansas) considers a claim that Southwestern Bell Telephone Company illegally maintained underground cables across the Core property. This decision is of particular interest for two related issues.
(1) Southwestern Bell Telephone (SWB) claimed a prescriptive easement, relying (in part) on the open and notorious location of the cable, without a clear understanding of whose underlying fee title was affected.
(2) The court highlighted standards of due diligence—imposed on property owners—as a central issue to the dispute.
Core purchased the 40-acre tract in 1966, but made no attempt to determine the location of the boundaries of his tract for 16 years. Though the corners of the Core parcel were not marked, the general location of the telephone cable crossing the area was apparent, as demonstrated by the cleared trees along the corridor and standing line markers. In 1982, Core contacted SWB and was told that there was no easement across his 40-acre parcel. 4 years later, the question of the cable location was raised again, and SWB conceded that the cable might be on the disputed tract.
The court concludes that Core had adequate notice of the easement to validate the running of the statute of limitations. Core viewed the land when he purchased it and observed the cleared area for the cable. However, he never determined the limits of his own purchase, negating his claim of due diligence.
Judge Waters observes: “It has long been the law in Arkansas that a property owner has a duty to know the boundaries of his own land.” This statement is equally valid for both the location of the boundaries of the 40-acre tract, and for the boundaries of an easement.
Citing previous court decisions, the judge emphasizes that landowners who plead ignorance of the location of their property can expect little sympathy from the courts: “It was the defendant’s duty to know the boundaries of his own land and keep within them, and ignorance thereof would not justify a trespass upon his neighbor’s land.”
Regarding the relationship between a visible and apparent servitude and the subject parcel, the court concludes: “The court believes that the law imposes a duty upon a purchaser of property to diligently determine the boundaries of his property so as to detect any possible encroachment by entities such as the telephone company.” In this case, the encroachment referred to is the telephone cable and associated prescriptive right.
Due Diligence and Public Highway
In its consideration of a dispute over crops grown within a highway easement, Manufacturer’s National Bank v. Erie County Road Commission: 63 Ohio St. 3d 318 (1992) provides another lesson on the importance of recognizing easement boundaries.
This Ohio dispute was initiated when a cornfield encroached within the highway easement, restricting the field of view of passing motorists at an intersection. As is common in many states, Ohio statutes include a provision requiring public highways be kept open as a safe means of travel. In this case, the extent of that duty was questioned. Was the scope of this law restricted to the driving surface, or did it extend to include the entire servitude?
The decision includes state-specific definitions of the term “right-of-way” as per Ohio statute. While those definitions are not binding on other state courts, the general concept—that legitimate easements for public ways include more than the driving surface—is valid nationwide. In other words, the true extent of an easement generally includes more than the travelled area. At a minimum, easements will include an area above the surface, as well as shoulders or berms.
Judge Brown rejects the argument that landowners have no responsibility to know the limits of public ways through or adjoining their lands: “Respondent Boos argues that requiring a land user to determine exactly where the right-of-way lines are located places too great a burden on the land user. However, a landowner or occupier is under an obligation to know the boundaries of the property. The border of the right-of-way is a boundary line like any other.” The conclusion is clear: landowners are required to know the limits of highway easements adjoining their lands.
Who Locates Servitudes?
Few landowners have the necessary expertise to determine the limits of easements, so this burden inevitably falls to land use professionals. As with other aspects of property law, the surveyor’s responsibility to the public health, safety and welfare mandates diligent analysis to provide the client with dependable information. This duty extends both to the location of property boundaries, and to the limits of relevant servitudes.
These decisions—along with numerous other cases—illustrate that the old truism “ignorance is bliss” is not applicable to easements.
