The Law of Easements and Rights of Way in Vermont May 31, 2007 Presented By: Liam L. Murphy, Esq. MSK Attorneys 275 College Street P.O. Box 4485 Burlington, VT 05406-4485 (802) 861-7000 www.mskvt.com [email protected] Presenter: Liam Murphy graduated from Drew University in 1976 and the Georgetown University Law Center in 1981. He was an associate with the Washington office of the Houston, Texas firm of Butler, Binion, Rice, Cook and Knapp from 1981 to 1983. In 1983, he returned to Vermont and became an associate with the Burlington office of Langrock, Sperry and Wool. He became a partner in that firm in 1987 and remained until 2004 when, together with Brian Sullivan and Catherine Kronk, he became a founding member of Murphy Sullivan Kronk, now MSK Attorneys. Since 1983, Liam's practice has focused on real estate transactions and litigation, land use and zoning law, environmental law and related business, commercial and financial transactions. From 1997 to 2000, Liam served as the Chair of the Real Property Committee of the Vermont Bar Association, and in 2001 was awarded the "Service Award" by the Vermont Bar Association. Since 1988, Liam has almost annually taught a course on "Title to Real Estate in Vermont" for lawyers and paralegals, and has published a companion publication. He is a frequent lecturer on land use and development law and related regulatory issues, appearing regularly at events sponsored by the Vermont Bar Association, the Vermont League of Cities and Towns, and the Municipal Clerks and Treasurers Association. In addition to his practice, Liam is actively involved in community activities, helping to establish the Champlain Valley Greenbelt Alliance, a conservation group dedicated to the preservation of the scenic and working landscape along Vermont's major roadways with an initial focus on Route 7 from Shelburne to Middlebury. In addition, he was a Director of the Lake Champlain Land Trust from 1995 to 2001, and also provides volunteer legal services to a variety of Vermont land trusts and conservation organizations. LAW OF EASEMENTS IN VERMONT Index 1.0 EASEMENTS DEFINED…………………………………………………………………………...2 1.1 Easements Distinguished From Possessory Estates…………………………………….3 1.2 Easements Distinguished From Licenses……………………………………………….5 1.3 Easements Distinguished From Covenants………………………………………….....9 1.4 Easements Distinguished From Natural Rights……………………………………….11 1.5 Easements Distinguished From Profits………………………………………………..13 2.0 TYPES OF EASEMENTS…………………………………………………………………………15 2.1 Appurtenant v. Gross…………………………………………………………………..15 2.1.1 Transferability …………………………………………………………………..20 2.2 Affirmative v. Negative………………………………………………………………...21 3.0 CREATION OF EASEMENTS…………………………………………………………………...22 3.1 Express Easements……………………………………………………………………...22 3.1.1 Reserved Easements Versus Easement By Exception;……………………….22 3.1.1.a Excepted Easements not granted………………………………...26 3.2 Implied Easements……………………………………………………………………...27 3.2.1 Easements By Necessity……………………………………………………….27 3.2.2 Easements Implied By Prior Use (Quasi Easements)………………………..37 3.2.3 Easements By Prescription…………………………………………………….39 3.2.3.a Not Applicable To Certain Public Uses…………………………47 3.2.3.b Not Applicable To Utilities………………………………………61 3.2.4 Easements By Estoppel………………………………………………………...64 3.2.5 Easements By Reference To Plats……………………………………………..67 3.2.6 Easement By Dedication………………………………………………………74 3.2.7 Implied Easements for Lateral Support/Party Walls/ Light and Air 4.0 INTERPRETATION OF EASEMENTS…………………………………………………………..78 4.1 Intent Of The Parties……………………………………………………………………78 4.2 Scope Of Use By Owners Of Dominant Estate And Servient Estates………………82 4.3 Duty Of Care And Maintenance………………………………………………………89 5.0 LOCATION AND RELOCATION OF EASEMENTS…………………………………………..91 6.0 EXTINGUISHMENT AND ABANDONMENT OF EASEMENTS……………………………..96 6.1 Merger…………………………………………………………………………………..96 i 6.2 Extinguishment And Abandonment…………………………………………………...97 7.0 SPECIFIC EASEMENT TYPES………………………………………………………………….110 7.1 Scenic And View Easements and Light……………………………………………...110 7.2 Water…………………………………………………………………………………..112 7.4.1 Flowing………………………………………………………………………..112 7.4.2 Subsurface…………………………………………………………………….115 7.4.3 Public Trust…………………………………………………………………...118 7.4.4 Railroads………………………………………………………………………123 ii Toddler Property Law 1. If I like it, it's mine. 2. If it's in my hand, it's mine. 3. If I can take it from you, it's mine. 4. If I had it a little while ago, it's mine. 5. If it's mine, it must never appear to be yours in any way. 6. If I'm doing or building something, all the pieces are mine. 7. If it looks just like mine, it's mine. 8. If I saw it first, it's mine. 9. If I can see it, it's mine. 10. If I think it's mine, it's mine. 11. If I want it, it's mine. 12. If I "need" it, it's mine (yes, I know the difference between "want" and "need"!). 13. If I say it's mine, it's mine. 14. If you don't stop me from playing with it, it's mine. 15. If you tell me I can play with it, it's mine. 16. If it will upset me too much when you take it away from me, it's mine. 17. If I (think I) can play with it better than you can, it's mine. 18. If I play with it long enough, it's mine. 19. If you are playing with something and you put it down, it's mine. 20. If it's broken, it's yours (no wait, all the pieces are mine). The Toddler Property Law humorously reflects two attributes of human nature: we are born with an innate sense of property, and we tend to be very self-serving in our view of the world. RESTATING IMPLIED, PRESCRIPTIVE, AND STATUTORY EASEMENTS Real Property, Probate and Trust Journal, Spring 2005 by Hernandez, Michael V - 1 - 1.0 EASEMENTS DEFINED THE LAW OF EASEMENTS AND LICENSES IN LAND, Bruce and Ely (bold added) ¶1.01 “EASEMENT” DEFINED An easement is commonly defined as a nonpossessory interest in land of another. Several aspects of this definition are noteworthy. First, an easement is an interest in land, not merely a contract right. This distinction is important for various purposes, including resolving questions about the applicability of the Statute of Frauds and the availability of compensation for condemnation. Second, the nonpossessory feature of an easement differentiates it from an estate in land. An easement holder many only use the land burdened by the easement; he may not occupy and possess it as does an estate owner. Third, an easement burdens land possessed by someone other than the easement holder. This characteristic is a corollary of the nonpossessory element of an easement. It emphasizes the distinction between possession and use and highlights the fact that a possessor and an easement holder can simultaneously utilize the same parcel of land. An easement is an acquired interest, not a natural incident of landownership as are water rights and the right to support. Easements are created expressly, implied in certain circumstances, established by prescriptive use, or obtained by estoppel, custom, public trust, or condemnation. Land burdened by an easement is appropriately termed a servient tenement or a servient estate. If the easement benefits a particular parcel of land, that parcel is known as the dominant tenement or the dominant estate, and the easement is said to be appurtenant to it. If the easement only benefits an individual personally, not as owner of a particular parcel of land, the easement is termed in gross. In such cases, no dominant tenement exists. RESTATEMENT OF THE LAW, PROPERTY, SERVITUDES (American Law Institute, 3rd Edition, 2000) (bold added) § 1.1 Servitude Defined; Scope of Restatement (1) A servitude is a legal device that creates a right or an obligation that runs with land or an interest in land. (a) Running with land means that the right or obligation passes automatically to successive owners or occupiers of the land or the interest in land with which the right or obligation runs. (b) A right that runs with land is called a “benefit” and the interest in land with which it runs may be called the “benefited” or “dominant” estate. (c) An obligation that runs with land is called a “burden” and the interest in land with which it runs may be called the “burdened” or “servient” estate. (2) The servitudes covered by this Restatement are easements, profits, and covenants. To the extent that special rules and considerations apply to the following servitudes, they are not within the scope of this Restatement: (a) covenants in leases; (b) covenants in mortgages and other property security devices; (c) profits for the removal of timber, oil, gas, and minerals. - 2 - (3) Zoning and other public land-use regulations, the public-navigation servitude, the public-trust doctrine, and rights determined by riparian, littoral, prior- appropriation, or ground-water doctrines are not servitudes within the meaning of the term as used in this Restatement. § 1.2 Easement and Profit Defined (1) An easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement. (2) A profit à prendre is an easement that confers the right to enter and remove timber, minerals, oil, gas, game, or other substances from land in the possession of another. It is referred to as a “profit” in this Restatement. (3) The burden of an easement or profit is always appurtenant. The benefit may be either appurtenant or in gross. (4) As used in this Restatement, the term “easement” includes an irrevocable license to enter and use land in the possession of another and excludes a negative easement. A negative easement is included in the term “restrictive covenant” defined in § 1.3. § 1.4 Terms “Real Covenant” and “Equitable Servitude” Dropped The terms “real covenant” and “equitable servitude” describe servitudes encompassed within the term “covenant that runs with land” and are not used in this Restatement except to describe the evolution of servitudes law.