CHAPTER 2 ACQUIRING EXPRESS RIGHTS-OF-WAY: DRAFTING CONSIDERATIONS
| Jurisdiction | United States |
(May 1998)
ACQUIRING EXPRESS RIGHTS-OF-WAY: DRAFTING CONSIDERATIONS
Williams, Turner & Holmes, P.C.
200 N. 6th Street
P.O. Box 338
Grand Junction, Colorado 81502-0338
SYLLABUS
I. INTRODUCTION
II. CONSTRUCTING A FOUNDATION
A. The Essence of an "Easement"
B. Rights-of-Way as Easements
III. ANALYZING THE NATURE OF THE INTEREST
A. Comparing Easements In Gross and Appurtenant
B. Comparing Exclusive and Non-exclusive Easements
IV. THE ELEMENTS OF THE GRANT
A. Formal Requirements
B. Recordation
C. Additional Requisites
1. The Granting Clause
2. The Habendum Clause
3. Location
4. Purpose and Use
5. Consideration
6. Restrictions
7. Termination
V. EASEMENTS EXPRESSED IN OIL AND GAS OR MINING LEASES
VI. CHECKLIST
VII. CONCLUSION
———————
[Page 2-1]
I. INTRODUCTION:
"We ignore at our peril intimations that there are ways which are not our ways, and thoughts more comprehensive than our thoughts."2
Much of our commerce depends upon the use by one person of land owned by another. Heavy transportation, including air and rail transport, uses or imposes limitations upon the lands of others, and our utility services, including the exchange of electronic information, require the limited use of another's land. The extractive industries in particular require access to lands owned by other parties either to prospect for and exploit the mineral estate or to move the products of their labor and capital from place to place.
Generally speaking, all of the commercial uses mentioned, together with a myriad of other, unnamed uses, manifest themselves in the form of easements. Easements, in turn, compose an almost unlimited category of uses, ranging from those providing for the uninterrupted passage of air through, over, and across one building or parcel into an adjacent structure to easements for the emplacement and construction of transcontinental railroads and natural gas pipelines.
[Page 2-2]
As a widely accepted general rule one may obtain or create these various easements through prescriptive use, by implication, or by express grant.3 This paper, however, limits its purview to one particular set of easements: rights-of-way across private land created by express grants. It will not consider, except perhaps in passing or by contrast, licenses or rights-of-way created either by prescription or by implication. Likewise, this paper will not cover rights-of-way of any kind or nature which cross lands owned by the United States or by one of the several States. Other speakers will fully cover easements of that ilk.
As becomes apparent, the potential number of forms for grants of rights-of-way approaches infinity. Consequently, this paper does not purport to address all or even a small fraction of the possible variations on the drafting themes set forth herein, and the reader should consider the information contained in this paper only as a starting point in preparing or reviewing a written grant of a right-of-way.
On the other hand, this paper does intend to provide a brief review of certain rules regarding easements. It will define select words and terms, outline the nature and characteristics of easements for rights-of-way, and identify the several elements essential to express grants of such easements. Additionally, this paper will suggest several clauses and forms which may assist in preparing an express grant of a right-of-way.
II. CONSTRUCTING A FOUNDATION —
One could label this section: "Everything We Already Know About Easements" and not be far from the mark. The possibility exists, however, that, given the vagaries of human memory, the drafters of easements for rights-of-way, while knowing and understanding on one level the essence of easements, may often fail to bring that knowledge to the fore during their analysis and drafting process. The following should serve as a tickler, while hoping to avoid too much emphasis on the basics.
[Page 2-3]
A. The Essence of an "Easement"—
At the heart of both easements and licenses lies a right to go onto land owned by some other person and perform an act, which in the absence of the right, would constitute a trespass or other unlawful use of the land. Although presenting similar faces, these two rights do contain certain essential characteristics which allow us to distinguish between them.
Admittedly, making a distinction between easements and licenses causes some difficulties, to the point that one court has stated that "[t]he distinction between an easement and a license is often so metaphysical, subtle and shadowy as to elude analysis."4 By a close examination of certain fundamental principles and characteristics contained in the two separate forms of rights which appear in most cases, reviewing courts may distinguish an easement from a license when construed in the light of the surrounding circumstances.5
First among those fundamentals, a license consists only of a personal right to use another person's land for a specific purpose;6 while easements often may consist of such a personal right of use, an easement is, however, an interest in land.7 Licenses do not create interests in the land and, therefore, generally, may not be assigned or conveyed. Because they arise as personal rights, licenses are subject to revocation at the will of the licensor.8 Primarily, however, a license may be distinguished from an easement because, although it obtains from the authority to perform an act or series of acts on lands owned by another, the licensee receives no interest in the land so affected.
[Page 2-4]
If the instrument in question grants an interest in the land, or gives the right of user of such land, then an easement is created; if only permission is given under such instrument for one to do some act or acts on the land of the one granting the right, then it is a license only.9
The distinguishing characteristics of an easement are distilled in the Restatement of the Law of Property, which defines an "easement" in the following manner:
An easement is an interest in land in the possession of another which
(a) entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists;
(b) entitles him to protection as against third persons from interference in such use or enjoyment;
(c) is not subject to the will of the possessor of the land;
(d) is not a normal incident of the possession of any land possessed of the owner of the interest, and
(e) is capable of creation by conveyance.10
Based upon the case law and the above definition, an express grant of an easement, rests upon the foundation imposed by the word "interest." Because an easement is an interest in land, it "must be created by deed or prescription while a license may be by parol."11 While a verbal grant, although quite express in its terms, creates only a license,12 as a general rule, if you intend to create an express grant of an easement, you must do so in writing.13 The underpinning derives from a basic standard. Since the primary distinction
[Page 2-5]
between an easement and a license is that the easement creates an interest in land and since the usual Statute of Frauds14 requires that interests in land be in writing, it follows that a grant of an easement must be in writing.
While easements do create actual interests in the land affected by the grant an easement does not create an interest which rises to the level of an estate in land.15 Speaking generally, estates in land are possessory or "corporeal" in nature, while easements, being non-possessory in nature, are but "incorporeal interests"16 as it were, in land owned or possessed by another person, entitling the holder of the easement to a specific and limited use of the land affected by the interest.17 As a consequence of its non-possessory nature, the easement owner has no right to participate in any profits from the lands affected by the easement.18
Since an easement for a right-of-way is non-possessory,19 the owner of the servient estate, the land across which the right-of-way exists, retains all of the respective
[Page 2-6]
rights and benefits of fee ownership consistent with the easement,20 and the owner of the servient estate may continue to use the land in any manner, which does not unreasonably interfere with the particular privileges for which the easement was granted.21
B. Rights-of-Way as Easements—
As stated in the "Introduction", above, this paper is concerned with express grants of rights-of-way. Getting to that end requires fitting "rights-of-way" into the general rules regarding "easements" which have been developed so far and which will be further developed but with more attention to rights-of-way. The word "way," when incorporated in the term "right-of-way," refers to a "passage, path, road, or street,"22 or, for our current purposes, the right of passage over land. In its simplest definition then, a right-of-way is nothing more than the right which one person has to pass over the land of another.23
As previously noted, when this right of passage carries no interest in the land, a license results.24 When the holder of the right of passage acquires, however, an interest in the land of the other, sufficient to permit the reasonable and usual enjoyment of the right, it becomes an "easement."25 Simplistically, therefore, a right-of-way may constitute an easement, but all easements are not rights-of-way. Nevertheless, for the purposes of this paper, the terms will be used interchangeably.
III. ANALYZING THE NATURE OF THE INTEREST —
To properly construct the written grant of any right-of-way requires the draftsman to further analyze the nature of the proposed grant. Case law pertaining to easements provides
[Page 2-7]
a well developed scheme for making such an analysis, and the following sections present selected considerations to which the draftsman...
To continue reading
Request your trial