“The 2Point Way” – Old Easements Don’t Just Disappear
Updated: Apr 1, 2021
At first glance, these two cases seem too dissimilar to be included in the same article. One was 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, one case was heard in the Ohio courts, while the other is found in Massachusetts records.
The Ohio Case
The dispute described in Huber v. Gazley 18 Ohio 18 (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 the area was 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 parcels had routinely cut firewood on the tract designated as the town square.
William Lytle laid out the town of Williamsburgh; a plat of the proposed town was prepared showing proposed lots, streets, and alleys. 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 based on the added value generated 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 stable 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 resembles a 'reversion clause' for the square—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 a deed from William Lytle to the United States Bank, which in turn was 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 failed to convince the court because the square was used for governmental purpose for over 20 years and then was held open for common use by the town residents. It was reasonable to conclude that lands dedicated and held in trust for public use could not be conveyed casually to a private individual.
Gazley also attempted to prove title to the square based on prescription. At this time, Ohio common law was in its formative stages. Two contemporary Ohio rulings—City of Cincinnati v. First Presbyterian Church: 8 Ohio 298 (1838) and City of Cincinnati v. Evans: 5 Ohio St. 594 (1855)— 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. Neither of these rulings allowed legitimate public rights to be compromised. Later Ohio decisions support protections against prescriptive claims of lands dedicated to and accepted by the public.
The attempted application of adverse possession doctrine was no help to Gazley. While his counsel argued that the county had taken the property from the public by adverse possession, the argument was rejected because 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 concluded that there could not have been any 'original intent' for the public square to be the county seat. The court also saw 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: 73 Mass. App. Ct. 07-P-1420 (2008) is a recent Massachusetts decision. 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 the dispute. Although the lands involved were undeveloped at the time the easement was created, extensive development had occurred since, and at the time of the trial the surrounding lands were heavily developed. It was agreed that the easement was created either by grant, or under the “Common Scheme Doctrine.” The resulting way (Eli Rogers Road) was intended for use by a specific group of individuals—all landowners within the original partition of the parent tract.
The parent deed that conveyed the lands in question to the several proprietors was recorded on July 20, 1711; the court refers to this document as the “Sipson Deed.” 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. Rejecting this argument, the lower court decision observed 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 unfounded 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 argument was doomed to failure. There is no credible precedent in any U.S. jurisdiction that would justify extinguishing a public way (intended to be perpetual) because it had “worn out” after a few centuries. The Massachusetts court recognizes the legitimacy of the method by which the easement was created.
It was equally irrelevant that the plaintiff was unaware of the original vote creating the easement, since the parties had both constructive and actual notice of the existence of Eli Rogers Road.
Campbell v. Nickerson highlights the legitimacy of the easement: “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 was 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 is an obvious attempt to play on the fears of possible future litigation between other property owners in the area. The pointed rejection of this theory by the court noted that there was no apparent problem, and that current owners were not being subjected to inappropriate risk. The right to use Eli Rogers road by the defendants was upheld.
One similarity between these cases is that both involve attempts after the fact to eliminate a legitimate servitude. Judges nationwide have criticized lower-court rulings (or acts of legislature) that strip property owners of legitimate rights that had already vested under previously-existing common law or statutory systems.
Considering land titles and the possible adverse effect of more recent statutes that act retroactively on existing rights, 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…” As Proprietors of the Kennebec Purchase v. Laboree: 2 Me. 275 (1823) makes clear, any similar attempt may be considered a violation of the Taking Clause.
Another common thread in both decisions is that passage of time alone is insufficient to cause most easements or servitudes to expire or otherwise mysteriously vanish. In situations analogous to those described above, land use professionals should remember the old maxim “Once a road, always a road.” While several legitimate legal mechanisms exist whereby easements may be extinguished, the mere lapse of time (unsupported by other significant acts by relevant parties) generally is insufficient to extinguish an easement.
Surveyors and land use professionals sometimes argue that the duration specified in their Marketable Title Act (if any) defines the limits of research required for possible easements. However, the long list of exceptions associated with these acts often provide additional protections for easements of record. This may be true even where the current deed makes no mention of the servitude, provided that actual, constructive, or inquiry notice of the easement is proved. Protections based on the dedication to public use also may serve as a shield against the casual destruction of a servitude.
The most important conclusion to be drawn from these two illustrations is that neither the surveyor, the attorney, 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.”