CHAPTER 8 OBTAINING RIGHTS OF WAY BY MEANS OTHER THAN AN EXPRESS GRANT

• Jurisdiction: United States

Rights-of-Way How Right is Your Right-of-Way?
(May 1998)
CHAPTER 8
OBTAINING RIGHTS OF WAY BY MEANS OTHER THAN AN EXPRESS GRANT
Sheryl L. Howe
Clanahan, Tanner, Downing & Knowlton, P.C.
1600 Broadway, Suite 2400
Denver, Colorado 80202
(303) 830-9111

TABLE OF CONTENTS

SYNOPSIS

I. INTRODUCTION

II. PRESCRIPTIVE EASEMENTS

A. Elements for a Prescriptive Easement

B. Period of Prescription

C. No Prescriptive Easements Against the Government

III. IMPLIED EASEMENTS

A. Easements Implied from

B. Ways of Necessity

C. Statutory Ways of Necessity

D. Description of a Granted Parcel as Bounded by a Road

E. Easements Implied from Reference to a Plat

IV. EASEMENTS CREATED BY DEDICATION

A. Common Law Express Dedication

B. Statutory Express Dedication

C. Common Law Implied Dedication

V. IMPLIED EASEMENT TO USE THE SURFACE FOR THE BENEFIT OF THE MINERAL ESTATE

A. The Traditional Rule

B. The Reasonable Use Limit on the Traditional Rule

C. Requirement that the Surface Use be for Benefit of the Minerals Under that Tract

D. Surface Damages Acts and OGCC Rules

VI. RIGHTS ACROSS LANDS PATENTED UNDER THE STOCK RAISING HOMESTEAD ACT

VII. OBTAINING PERMITS FROM STATES, COUNTIES AND MUNICIPALITIES

A. Section Line Roads

B. Procedures to Obtain Permits

C. Limitations in Permits

VIII. CONCLUSION

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I. INTRODUCTION

Easements may be obtained without a formal grant of an easement or right-of-way. The law will imply an easement under certain circumstances. This paper will address the real property rules regarding prescriptive easements, implied easements and dedications. It will cover the general rules of law on these points. The paper will look at the oil and gas owner's rights to reasonable surface use, which is an implied easement that has generated quite a few litigated cases. The paper will then address the procedures to obtain permits from counties and states.

The oil and gas lessee needs access to drillsites and it needs pipelines to transport production. This paper covers the general law of implied and prescriptive easements, with an emphasis of these specific needs of the oil and gas lessee.

Several other papers being given at this Special Institute cover topics that include rights of way obtained other than by express grant. The paper on R.S. 2477 will detail the rights under that statute, so R.S. 2477 is only briefly mentioned in this paper. Condemnation proceedings are covered in a separate paper. Also, since there are papers on obtaining rights of way across federal and Indian lands, this paper will not address easements on those types of lands. Thus, this paper will focus on easements across lands where the surface estate is owned privately.

"Easements and rights of way" are often covered together as one topic in title opinions. Black's Law Dictionary defines Easement as "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 property in the owner."¹ Black's Law Dictionary defines Right of Way as "the right of passage or of way is a servitude imposed by law or by convention, and by virtue of which one has a right to pass on foot, or horseback, or in a vehicle, to drive beasts of burden or carts, through the estate of another."²

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This paper will mainly use the term easement rather than right of way: easement is used because it is a broader term than right of way. Also, traditionally the areas covered by this paper use the easement terminology rather than right of way. Thus, implied easements and prescriptive easements are the terms used in the case law and the common law, rather than "implied right of way."

II. PRESCRIPTIVE EASEMENTS

Prescriptive easements are essentially easements obtained by adverse possession. They originally arose in England based on the common law theory of a "lost grant." Once the period of time required for prescription had passed, and the elements of a prescriptive easement had been satisfied, the law presumed a lost grant. The lost grant theory is a presumption or legal fiction that there had in fact been a conveyance but that it had been lost.³

If a company is seeking to obtain access to a drillsite or to obtain a right-of-way for a pipeline, a prescriptive easement will usually only be a practical solution if the prescriptive easement already exists. This is because the prescriptive easement requires a period of time, ranging from five to twenty years, before the company has rights under the prescriptive easement. The prescriptive easement would be a risky route to take when planning operations, since the company could be evicted before the required time period runs, and thus the company may never acquire the right to a prescriptive easement. However, a prescriptive easement which already exists may offer a solution to problems of obtaining access and the right to lay a pipeline.

A. Elements for a Prescriptive Easement

The elements necessary to establish a prescriptive easement are generally the same as those for adverse possession. The elements vary to some degree from state to state. Generally, in order to obtain a prescriptive easement, a person must show the following: adverse, open and notorious, continuous and uninterrupted use of another's lands for the period of prescription.⁴ One difference between prescriptive easements and implied easements (which are discussed below) is that for a prescriptive easement there is no need to establish that the

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dominant and servient estates were once under common ownership. Also, necessity is not required to prove a prescriptive easement.⁵

The requirement that the claimant must show adverse or hostile use means that the use must be wrongful and without regard to the rights of the owner.⁶ In other words, the use cannot be with the landowner's permission. Thus, if the owner of the servient estate (i.e., the fee owner) gives permission, either verbally or in writing or by implication, for another to cross or use his land, a prescriptive easement will not arise.

The requirement that the use is open and notorious means simply that the landowner either knew of the adverse use or had reasonable notice of the adverse use and thus had the opportunity to stop the adverse use. There is some case law holding that buried pipes and conduits are not sufficiently notorious to permit a prescriptive easement to arise.⁷

The element of continuous and uninterrupted use means recurring and consistent use. Sporadic use would not satisfy the continuous and uninterrupted use requirement. However, since it is an easement which is at issue, the use need not be literally continuous. For example, use of a road to a field only during the growing season could ripen into a prescriptive easement, even though it was not a year-round use. The amount of continuousness and the number of interruptions allowed will depend on the type of prescriptive easement being acquired. A California court has held that a country club owned a prescriptive easement to use adjacent land as a rough, when several "misdirected" golf balls landed on the servient estate each day.⁸

The adverse use must be uninterrupted for the entire prescriptive period. If the landowner discovers the use and puts a stop to it, before the prescriptive period has run, the use would then be interrupted. However, a mere complaint or protest by the owner is not enough to interrupt the adverse use. Rather, the landowner must take actions to stop the use, such as erecting gates or otherwise physically preventing the adverse use from continuing. In some states, there are statutes which allow a landowner to give persons using the owner's land written notice of an intention to

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dispute any claim arising from such use. This notice constitutes an interruption, preventing the acquisition of any prescriptive right.⁹

B. Period of Prescription

The period of time required to obtain a prescriptive easement is called the "period of prescription." It is set by statute in most states. In many states, the period of prescription is the same as the adverse possession statute or statute of limitations for actions to recover possession of land. The prescriptive periods in several of the Rocky Mountain states are as follows:

eighteen (18) years in Colorado¹⁰

fifteen (15) years in Kansas¹¹

five (5) years in Montana¹²

ten (10) years in Nebraska¹³

ten (10) years in New Mexico¹⁴

twenty (20) years in North Dakota¹⁵

twenty (20) years in South Dakota¹⁶

twenty (20) years in Utah¹⁷

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ten (10) years in Wyoming¹⁸

Tacking is permitted. Tacking refers to subsequent adverse use by different people, in other words the adverse use need not be by the same person or company for the entire prescriptive period.¹⁹

C. No Prescriptive Easements Against the Government

Like adverse possession, a prescriptive easement cannot be asserted against the government.

III. IMPLIED EASEMENTS

There are a number of situations in which a court will find that an easement is implied. Many of the decisions focus on the inferred intent of the parties, or in other words that the parties "must have" intended that an easement be given in connection with a transfer of another interest in land.

There were two types of common law implied easements: easements implied from quasi-easements and easements of necessity.²⁰

A. Easements Implied from Quasi-Easements

Easements implied from quasi-easements are based on an historic use by the landowner of part of his property for the benefit of another part of his property. This use is not technically an easement because a person cannot have an easement across his own land.

The historic use of part of one's property to benefit another part of the property is a quasi-easement. The quasi-easement may then become an implied easement if the owner later transfers only part of his property and the grantee would need use...