DOCSLIB.ORG

Maine Roads and Easements

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Maine Roads and Easements Maine Law Review Volume 48 Number 2 Article 3 April 2018 Maine Roads and Easements Knud E. Hermansen Donald R. Richards Follow this and additional works at: https://digitalcommons.mainelaw.maine.edu/mlr Part of the Land Use Law Commons, and the Property Law and Real Estate Commons Recommended Citation Knud E. Hermansen & Donald R. Richards, Maine Roads and Easements, 48 Me. L. Rev. 197 (2018). Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol48/iss2/3 This Article is brought to you for free and open access by the Journals at University of Maine School of Law Digital Commons. It has been accepted for inclusion in Maine Law Review by an authorized editor of University of Maine School of Law Digital Commons. For more information, please contact [email protected]. MAINE ROADS AND EASEMENTS Knud E. Hermansen & Donald R. Richards I. INTRODUCTION ........................................ 200 II. EASEMENT TERMS AND CLASSIFICATIONS ............. 202 A. Appurtenant Easements and Easements in Gross .. 203 B. Public Easements and Private Easements .......... 204 III. EASEMENT STATUS AND USES ........................ 205 A. Easement or Fee Simple Title ...................... 205 1. Operative Records ............................. 206 2. Common Law ................................. 206 3. Range-Ways and Range-Roads ................. 207 B. Title Within the Easement ......................... 209 C. Multiple Uses/Easements .......................... 210 D. CorrelativeRights and Appurtenances ............. 211 1. Express or Clearly Intended ................... 211 2. Implied Rights and Limitations ................ 212 a. Utilities in Private Road Easements ........ 217 b. Utilities in Public Roads .................. 217 c. Obstructions .............................. 218 d. PrescriptiveEasements .................... 218 e. Exclude the Obvious ...................... 220 f Increased Traffic Not Speed ............... 220 g. Subdivision of the Appurtenant Parcel..... 220 h. Accessing Non-Appurtenant Parcels ....... 220 IV. CREATION ............................................ 222 A . G rant ............................................. 223 B. Reservation ....................................... 223 1. Exception Used ................................ 223 2. Subject To/Together With ...................... 224 C. Implication ........................................ 225 1. Strict Necessity ................................ 226 2. Quasi Easements .............................. 231 3. Subdivision and Sale .......................... 233 4. Boundary in a Description..................... 235 5. Application and Comparison .................. 237 D . Estoppel .......................................... 241 E. Prescription ....................................... 242 F. D edication ........................................ 248 G. Covenants ........................................ 250 H . Statutes ........................................... 25 1 1. Private Way (Public Easement) ................ 251 2. Easements Upon Discontinuance............... 251 3. Burial Grounds................................ 252 198 MAINE LAW REVIEW [Vol. 48:197 4. Condemnation or Conveyance ................. 252 5. Intertidal Lands and Navigable Bodies of Water ....................................... 253 6. Blanket Utility Easements ...................... 254 7. Conservation Easements ....................... 254 & Scenic Easements .............................. 255 9. Constructive Easements ........................ 255 10. Solar Easements .............................. 255 11. Access to Great Ponds ........................ 256 12. Navigable Water .............................. 256 13. D rainage ..................................... 257 I. Problems Creating or Conveying Easements ........ 257 1. Grants by the Dominant Estate ................ 257 2. Rule Against Perpetuities ...................... 257 3. No Title Interests .............................. 258 4. Inadequate Description ........................ 259 5. Stranger to the Deed ........................... 259 V. EXTINGUISHMENT ..................................... 261 A . Release ........................................... 261 B. Condition or Event ................................ 261 1. Paper Streets .................................. 262 2. Vacation ....................................... 262 C. N onuse ........................................... 262 D. Abandonment ..................................... 265 E. Merger of Title (Unity of Title) .................... 268 F. Termination of Necessity ........................... 268 G. Foreclosure ....................................... 269 H . Destruction ....................................... 269 I. Death of the Party ................................. 269 J. Statutes ............................................ 270 1. Discontinuance ................................ 270 2. Abandonment ................................. 272 3. Statute of Limitation or Conditional Period .... 273 4. Vacation by Petition ........................... 274 5. Vacation upon Condition ...................... 274 6. Revocation of Dedication ...................... 274 7. Adverse Use ............................. 275 K. Rights and Title upon Conveyancing or Termination ....................................... 275 VI. LOCATING EASEMENTS ................................ 276 A. Easement Information ............................. 276 B. Easement Position ................................. 279 1. Monuments .................................... 280 2. Directions and Distances....................... 280 3. Use and Occupancy ........................... 283 4. Servient Estate-FirstChoice .................. 284 1996] ROADS AND EASEMENTS C. Boundaries of the Easement ....................... 284 1. Grant or Intent ................................ 285 2. Occupation and Possession Barriers............ 286 3. Adequate and Reasonable Width ............... 287 4. Prescriptive Easements Width .................. 289 5. Official Action ................................ 289 VII. PARCEL BOUNDARIES IN OR ALONG ROAD EASEMENTS ........................................... 290 A. Public Road Easements ........................... 293 B. Private Easements ................................. 299 C. Paper Streets ...................................... 299 D. Former Public Streets ............................. 300 E. Railroads ......................................... 301 VIII. UNRESOLVED ISSUES .................................. 302 A. Vacation, Abandonment, Discontinuance, etc...... 302 B. Lines of Occupation Versus Three-Rod Width ..... 302 C. New Road on Original Road ...................... 304 D. Center or Far Side ................................ 304 E. Sidelines .......................................... 305 F. Marginal Street Doctrine........................... 309 G. Government Subdivider ........................... 309 IX. CONCLUSION-COUNSELING THE CLIENT ............. 310 MAINE LAW REVIEW [Vol. 48:197 MAINE ROADS AND EASEMENTS Knud E. Hermansen* Donald R. Richards** I. INTRODUCTION Black's Law Dictionary1 defines an easement as a right of use over the property of another. An easement is a right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not inconsistent with a general prop- erty right in the owner.2 It is an interest that one person has in the land of another.' A primary characteristic of an easement, that its burden falls upon the possessor of the land from which it issued, is expressed in the statement that the land constitutes a servient estate or tenement and the easement a dominant tenement.4 The servient estate may utilize the easement area for its own purposes or in con- junction with the dominant estate as long as such use does not inter- fere with the dominant estate.5 An easement is distinguishable from a "license," which merely confers personal privilege to do some act on the land. Easements do not allow exclusive possession of the area. They are categorized as incorporeal hereditaments. Ease- * Knud E. Hermansen is an associate professor in the College of Engineering, University of Maine. He is also a land surveyor, civil engineer, and attorney offering consulting services in Old Town, Maine. ** Donald R. Richards is a partner in the surveying firm of Richards & Cranston located in Rockland, Maine. The authors would like to thank Mr. Joseph J. Wathen, Esq., Staff Attorney with the Maine Municipal Association; Mr. Bruce VanNote, P.L.S., Esq., Staff Attorney with the Maine Department of Highways, and Mr. John T. Mann, P.L.S. and Mr. Reubon Wheeler of Mann Associates for their help, review, and comments in preparing this Article. 1. BLACK'S LAW DICrIONARY (6th ed. 1990). 2. In Hill v. Lord, 48 Me. 83 (1861), the court held: The distinction between an interest in the soil, or a right to a profit in it, and an easement, is not always palpable. The line of separation is some- times obscure, in some points unsettled, with no established principles by which to determine it. All rights of way are easements. So is the right to enter the close of another and erect booths upon public days; or to dance, or to play at any lawful games and sports. Id. at 99 (citations omitted). 3. Bonney v. Greenwood, 96 Me. 335, 341, 52 A. 786, 789 (1902) ("An easement may be concisely defined as 'a privilege without profit which one has for the benefit of his land in the land of another.' "). 4. Id ("It is among the essential qualities of every easement that there are two distinct
Load more

Recommended publications
  • Leases and the Rule Against Perpetuities
    LEASES AND THE RULE AGAINST PERPETUITIES EDWIN H. ABBOT, JUNIOR of the Boston Bar INTRODUCTION The purpose of this article is to consider the application of the rule against perpetuities to leases. A leasehold estate has certain peculiari- ties which distinguish it, as a practical matter, from other estates in land. At common law it required no livery of seisin, and so could be created to begin in futuro. Although it is not an estate of freehold the duration of the estate may be practically unlimited-it may be for 999 years or even in perpetuity. The reversion after an estate for years is necessarily vested, no matter how long the term of the lease may be, yet the leasehold estate is generally terminable at an earlier time upon numerous conditions subsequent, defined in the lease. In other words the leasehold estate determines without condition by the effluxion of the term defined in the lease but such termination may be hastened by the happening of one or more conditions. The application of the rule against perpetuities to such an estate presents special problems. The purpose of this article is to consider the application of the rule to the creation, termination and renewal of leases; and also its effect upon options inserted in leases. II CREATION A leasehold estate may be created to begin in futuro, since livery of seisin was not at common law required for its creation. Unless limited by the rule a contingent lease might be granted to begin a thousand years hence. But the creation of a contingent estate for years to begin a thousand years hence is for practical reasons just as objectionable as the limitation of a contingent fee to begin at such a remote period by means of springing or shifting uses, or by the device of an execu- tory devise.
    [Show full text]
  • Covenants in a Lease Which Run with the Land
    COVENANTS IN A LEASE WHICH RUN WITH THE LAND EDwiN H. ADBoT, JR. Assistant Attorney-General, Massachusetts I PRELIMINARY The purpose of this article is to consider anew the tests which deter- mine whether a covenant in a lease will run with the land. The subject is by no means novel. The leading case was decided in 1583,1 if the resolutions promulgated in Spencer's Case can be considered a decision. But in view of the seeming conflict between the first and second reso- 'Spencer's Case (1583, K. B.) 51Co. Rep. 16a. The first two resolutions read as follows: i. When the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is quodammodo annexed and appurtenant to the thing demised, and shall go with the land, and shall bind the assignee although he be not bound by express words: but when the covenant extends to a thing which is not in being at the time of the demise made, it cannot be appurtenant or annexed to the thing which hath no being: as if the lessee covenants to repair the houses demised to him during the term, that is parcel of the contract, and extends to the support of the thing demised, and therefore is quodammodo annexed appurtenant to houses, and shall bind the assignee although he be not bound expressly by the covenant: but in the case at bar, the covenant concerns a thing which was not in esse at the time of the demise made, but to be newly built after, and therefore shall bind the covenantor, his executors or administrators, and not the assignee, for the law will not annex the covenant to a thing which hath no being.
    [Show full text]
  • Guidance Note
    Guidance note The Crown Estate – Escheat All general enquiries regarding escheat should be Burges Salmon LLP represents The Crown Estate in relation addressed in the first instance to property which may be subject to escheat to the Crown by email to escheat.queries@ under common law. This note is a brief explanation of this burges-salmon.com or by complex and arcane aspect of our legal system intended post to Escheats, Burges for the guidance of persons who may be affected by or Salmon LLP, One Glass Wharf, interested in such property. It is not a complete exposition Bristol BS2 0ZX. of the law nor a substitute for legal advice. Basic principles English land law has, since feudal times, vested in the joint tenants upon a trust determine the bankrupt’s interest and been based on a system of tenure. A of land. the trustee’s obligations and liabilities freeholder is not an absolute owner but • Freehold property held subject to a trust. with effect from the date of disclaimer. a“tenant in fee simple” holding, in most The property may then become subject Properties which may be subject to escheat cases, directly from the Sovereign, as lord to escheat. within England, Wales and Northern Ireland paramount of all the land in the realm. fall to be dealt with by Burges Salmon LLP • Disclaimer by liquidator Whenever a “tenancy in fee simple”comes on behalf of The Crown Estate, except for In the case of a company which is being to an end, for whatever reason, the land in properties within the County of Cornwall wound up in England and Wales, the liquidator may, by giving the prescribed question may become subject to escheat or the County Palatine of Lancaster.
    [Show full text]
  • Chapter 6 Summary Ownership of Real Property
    Chapter 6 Summary Ownership of Real Property California Real Estate Principles Estate in land - degree of ownership one holds in the land. Feudal system - all land was once owned by the king/government; Allodial System (USA) - although the government detains some rights, individuals own property without proprietary control of government. Freehold estate - the estate lasts at least a lifetime; leasehold estate - renting or leasing. Types of freehold: • Fee Simple (Fee Simple Absolute) - Owns the bundle of rights – unlimited duration; inheritable. • Fee Simple Defeasible is based on an occurrence of a specified event – conditions. • Fee Tail - Property inherited by a monarch is illegal in the United States. • Life Estate: Voluntary Life Estates or "Conventional Life Estates." o Estate in Reversion • A life estate that is deeded to a life tenant - incomplete bundle of rights during lifetime. • A reversion estate that is retained by the grantor. After death of life tenant, grantor has complete bundle of rights. o Estate in remainder: differs from the above because the remainder estate is given to a third party who is known as the remainderman. After death of life tenant, the remainderman has complete bundle of rights. o Pur Autre Vie (estate in reversion/estate in remainder) - life tenant has the incomplete bundle of rights until a third party dies. o Involuntary Life Estates are legal life estates or marital right. It is not possible to sell the property without the consent of the partner, or to own property in one name only. o Dower - a wife's interest in the husband's property; Curtesy - a husband's interest in a wife's property; Homestead - protection against unsecured debts for the party who did not sign for the loan.
    [Show full text]
  • Present Legal Estates in Fee Simple
    CHAPTER 3 Present Legal Estates in Fee Simple A. THE ENGLISH LAW T THE beginning of the thirteenth century, when the royal courts of justice were acquiring effective A control of the development of private law, the possible forms of action and their limits were uncertain. It seemed then that a new form of action could be de­ vised to fit any need which might arise. In the course of that century the courts set themselves to limiting the possible forms of action to a definite list, defining with certainty the scope of permitted actions, and so refusing relief upon states of fact which did not fall within the fixed limits of permitted forms of action. This process, of course, operated to fix and limit the classes of private rights protected by law.101 A parallel process went on with respect to interests in land. At the beginning of the thirteenth century, when alienation of land was becoming possible, it seemed that any sort of interest which ingenuity could devise might be created by apt terms in the transfer creating the interest. Perhaps the form of the gift could create interests of any specified duration, with peculiar rules for descent, with special rights not ordinarily in­ cident to ownership, or deprived of some of the ordinary incidents of ownership. As in the case of the forms of action, the courts set themselves to limiting the possible interests in land to a definite list, defining with certainty 1o1 Maitland, FoRMS OF ACTION AT CoMMON LAW 51-52 (reprint 1941). 37 38 PERPETUITIES AND OTHER RESTRAINTS the incidents of permitted interests, and refusing to en­ force provisions of a gift which would add to or subtract from the fixed incidents of the type of interest conveyed.
    [Show full text]
  • Easements by Way of Necessity Across Federal Lands
    Washington Law Review Volume 35 Number 1 3-1-1960 Easements by Way of Necessity Across Federal Lands Marjorie D. Rombauer Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr Part of the Property Law and Real Estate Commons Recommended Citation Marjorie D. Rombauer, Comment, Easements by Way of Necessity Across Federal Lands, 35 Wash. L. Rev. & St. B.J. 105 (1960). Available at: https://digitalcommons.law.uw.edu/wlr/vol35/iss1/5 This Comment is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact [email protected]. COMMENTS EASEMENTS BY WAY OF NECESSITY ACROSS FEDERAL LANDS Is an easement across federal lands implied when the United States has granted a tract of land to which the grantee would otherwise have no practical means of access? In the recent case of Bydlon v. United States,' the Court of Claims implied an affirmative answer in holding that the ancient doctrine of ways of necessity applied to Government grants to create access easements by air. The purpose of this Comment is to determine the validity of that conclusion and the extent to which it may be utilized to give life to dormant easements. Particular attention will be given to the possible existence of such easements across national forest lands. THE BYDLON CASE The seed of the Bydlon decision was planted in 1949 when the Presi- dent issued an executive order prohibiting flights of planes at altitudes under 4,000 feet over "roadless areas" of the Superior National Forest in northern Minnesota.2 The order effectively deprived owners of prosperous resorts on the Canadian border of the only practical access to their properties, since they were surrounded by international waters to the north and "roadless areas" on all other sides and customarily flew their customers in by seaplane.
    [Show full text]
  • The Law of Property
    THE LAW OF PROPERTY SUPPLEMENTAL READINGS Class 14 Professor Robert T. Farley, JD/LLM PROPERTY KEYED TO DUKEMINIER/KRIER/ALEXANDER/SCHILL SIXTH EDITION Calvin Massey Professor of Law, University of California, Hastings College of the Law The Emanuel Lo,w Outlines Series /\SPEN PUBLISHERS 76 Ninth Avenue, New York, NY 10011 http://lawschool.aspenpublishers.com 29 CHAPTER 2 FREEHOLD ESTATES ChapterScope -------------------­ This chapter examines the freehold estates - the various ways in which people can own land. Here are the most important points in this chapter. ■ The various freehold estates are contemporary adaptations of medieval ideas about land owner­ ship. Past notions, even when no longer relevant, persist but ought not do so. ■ Estates are rights to present possession of land. An estate in land is a legal construct, something apart fromthe land itself. Estates are abstract, figments of our legal imagination; land is real and tangible. An estate can, and does, travel from person to person, or change its nature or duration, while the landjust sits there, spinning calmly through space. ■ The fee simple absolute is the most important estate. The feesimple absolute is what we normally think of when we think of ownership. A fee simple absolute is capable of enduringforever though, obviously, no single owner of it will last so long. ■ Other estates endure for a lesser time than forever; they are either capable of expiring sooner or will definitely do so. ■ The life estate is a right to possession forthe life of some living person, usually (but not always) the owner of the life estate. It is sure to expire because none of us lives forever.
    [Show full text]
  • Uniform Environmental Covenants Act
    UNIFORM ENVIRONMENTAL COVENANTS ACT drafted by the NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS and by it APPROVED AND RECOMMENDED FOR ENACTMENT IN ALL THE STATES at its MEETING IN ITS ONE-HUNDRED-AND-TWELFTH YEAR WASHINGTON, DC AUGUST 1-7, 2003 WITH PREFATORY NOTE AND COMMENTS Copyright ©2003 By NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS September 27, 2018 DRAFTING COMMITTEE ON UNIFORM ENVIRONMENTAL COVENANTS ACT WILLIAM R. BREETZ, JR., University of Connecticut School of Law, Connecticut Urban Legal Initiative, 35 Elizabeth Street, Room K-202, Hartford, CT 06105, Chair MARION W. BENFIELD, JR., 10 Overlook Circle, New Braunfels, TX 78132 DAVID D. BIKLEN, 153 N. Beacon St., Hartford, CT 06105 STEPHEN C. CAWOOD, 108 ½ Kentucky Ave., P.O. Drawer 128, Pineville, KY 40977-0128 BRUCE A. COGGESHALL, One Monument Sq., Portland, ME 04101 FRANK W. DAYKIN, 2180 Thomas Jefferson Dr., Reno, NV 89509, Committee on Style Liaison THEODORE C. KRAMER, 45 Walnut St., Brattleboro, VT 05301 DONALD E. MIELKE, Ken Caryl Starr Centre, 7472 S. Shaffer Ln., Suite 100, Littleton, CO 80127 LARRY L. RUTH, 530 S. 13th St., Suite 110, Lincoln, NE 68508-2820, Enactment Plan Coordinator HIROSHI SAKAI, 3773 Diamond Head Circle, Honolulu, HI 96815 YVONNE L. THARPES, Legislature of the Virgin Islands, Capitol Building, P.O. Box 1690, St. Thomas, VI 00804 MICHELE L. TIMMONS, Office of the Revisor of Statutes, 700 State Office Bldg., 100 Rev. Dr. Martin Luther King Jr. Blvd., St. Paul, MN 55155 KURT A. STRASSER, University of Connecticut School of Law, 65 Elizabeth St., Hartford, CT 06105-2290, Reporter EX OFFICIO K.
    [Show full text]
  • The Problem of Hidden Easements and the Subsequent Purchaser Without Notice
    Oklahoma Law Review Volume 40 Number 1 1-1-1987 The Problem of Hidden Easements and the Subsequent Purchaser without Notice Joel Eichengrun Follow this and additional works at: https://digitalcommons.law.ou.edu/olr Part of the Law Commons Recommended Citation Joel Eichengrun, The Problem of Hidden Easements and the Subsequent Purchaser without Notice, 40 OKLA. L. REV. 1 (1987), https://digitalcommons.law.ou.edu/olr/vol40/iss1/2 This Article is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in Oklahoma Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact [email protected]. OXLAHOMA LAW REVIEW VOLUME 40 SPRING 1987 NUMBER 1 THE PROBLEM OF HIDDEN EASEMENTS AND THE SUBSEQUENT PURCHASER WITHOUT NOTICE JOEL EICHENGRUN Contents Introduction 3 Part I. The Problem of Hidden Easements 5 A. Fact Patterns 5 B. Doctrine Inadequacies 7 C. The Choice of Rules 12 Part II. The Court's Response 12 A. Hidden Easements to Maintain Underground Pipelines 13 1. Easements Implied From Prior Use 13 2. Prescriptive Easements 20 3. Oral Easements 23 B. Hidden Easements to Maintain Encroaching Structures 24 C. Neglected and Inchoate Roadway Easements 25 Part III. An Assessment and a Proposal 26 Conclusion 34 Published by University of Oklahoma College of Law Digital Commons, 1987 https://digitalcommons.law.ou.edu/olr/vol40/iss1/2 THE PROBLEM OF HIDDEN EASEMENTS AND THE SUBSEQUENT PURCHASER WITHOUT NOTICE JOEL EICHENGRUN* Introduction The prospective home buyer signs a contract to purchase a new home.
    [Show full text]
  • We Have to Drill This Well Somewhere - a Survey of Surface Issues Across the Nation
    We Have to Drill This Well Somewhere - A Survey of Surface Issues Across the Nation Celia C. Flowers and Melanie S. Reyes Flowers Davis, P.L.L.C. 1021 ESE Loop 323, Suite 200 Tyler, Texas 75701 IRWA Pipeline Committee Meeting September 24-25, 2015 Park City, Utah Celia C. Flowers Flowers Davis, P.L.L.C. 1021 ESE Loop 323, Suite 200 ~Tyler, Texas 75701 903-534-8063, Fax: 903-534-1650, Email: [email protected] BIOGRAPHICAL INFORMATION EDUCATION: • Tyler Junior College and graduated with an Associate in Arts (A.A.) in 1987, summa cum laude. • University of Texas at Tyler, completing that phase of her education with highest honors. • Attended law school at Baylor University and graduated in 1990 with a Juris Doctor (J.D.) degree. BOARD CERTIFICATION: • Board Certified: Oil and Gas Law, Texas Board of Legal Specialization • Board Certified: Residential Real Estate Law, Texas Board of Legal Specialization • Board Certified: Civil Trial Law, Texas Board of Legal Specialization PROFESSIONAL ACTIVITIES: • Ms. Flowers owns twelve title companies, which are licensed in thirteen counties in East Texas • 2010-2013 - Oil and Gas Council of the Oil, Gas and Energy Resources Law Section of the State Bar of Texas • Fellow of the College of the State Bar of Texas, and a member of the Texas Board of Legal Specialization, Smith County Bar Association, Rusk County Bar Association, Gregg County Bar Association, Van Zandt County Bar Association, International Right of Way Association, State Bar of Texas, East Texas Association of Petroleum Landmen, and American Association of Petroleum Landmen. • 2011-2013 - President oflndependent Title Agents of Texas (ITAT) • 2011-present - Texas Title Examination Standards Board • In 2011, Ms.
    [Show full text]
  • State of New Hampshire Supreme Court
    State of New Hampshire Supreme Court NO. 2009-0623 2010 TERM FEBRUARY SESSION In the Matter of Milena Matyas and John Toth RULE 7 APPEAL OF FINAL DECISION OF NEWPORT FAMILY DIVISION COURT BRIEF OF RESPONDENT/APPELLANT JOHN TOTH By: Joshua L. Gordon, Esq. NH Bar ID No. 9046 Law Office of Joshua L. Gordon 26 S. Main St., #175 Concord, NH 03301 (603) 226-4225 TABLE OF CONTENTS TABLE OF AUTHORITIES.................................................... ii QUESTIONS PRESENTED.................................................... 1 STATEMENT OF FACTS AND STATEMENT OF THE CASE....................... 2 SUMMARY OF ARGUMENT.................................................. 4 ARGUMENT................................................................ 5 I. Ms. Matyas’s Interest in Hungarian Property Must be Included in Marital Estate.................................................... 5 A. Hungarian Property Law..................................... 5 1. Usufruct............................................ 6 2. Multiple Owners..................................... 6 B. Parties’ Understanding of Hungarian Property Law................ 7 C. Usufruct in American Law.................................... 8 D. New Hampshire’s Broad Definition of Property Includes Usufruct.... 9 E. Hungarian Usufruct Must be Included in Marital Estate............ 10 II. Value of the Hungarian Usufruct to the Marital Estate................... 11 A. Usufruct has Value......................................... 12 B. Method of Valuation....................................... 14 CONCLUSION............................................................
    [Show full text]
  • Covenant Marriage: Legislating Family Values
    COVENANT MARRIAGE: LEGISLATING FAMILY VALUES A MY L. STEWART* INTRODUCTION Hardly a social problem exists that has not been attributed to the breakdown of the American family, and hardly has there been a time in American history when this has not been true. Today, a decline in “family values” is blamed for crime, drug use, low educational achievement, poverty, and probably in some circles, for the weather. The solution to these problems, the theory goes, is to save the family, and the way to save the family is to make it harder to get divorced. In some states, conservative lawmakers are charging to the rescue. They propose a concept called “covenant marriage,” a sort of “marriage deluxe” that would be slightly harder to enter and much harder to exit than a “regular” marriage. Their goal is to reduce the divorce rate by preventing bad marriages before they begin and by restricting divorce once a couple is married. In July 1997, Louisiana became the first state to pass a covenant marriage bill.1 This Note assesses the likely effectiveness of such a measure. It concludes that marriages are better made in the human heart than in the statehouse halls. Part I of this Note reviews the evolution of American divorce law to provide an historical context for the current movement to reform those laws. As one product of this new reform movement, the covenant marriage proposal itself is described in detail. In an effort to evaluate whether new restrictions on divorce will improve social conditions, the current, less restrictive scheme of no-fault divorce is analyzed to determine whether it has been responsible for adverse social consequences.
    [Show full text]