Alan Brickley, Attorney at Law EASEMENT ISSUES Alan Brickley, Attorney at Law

4. No right of access to and from the Land. (the “Company”) insures, as of Date of Policy and, to the extent stated in Covered Risks 9 and 10, after Date of Policy, against loss or damage, not exceeding the Amount of Insurance, sustained or incurred by the Insured by reason of: 4. No right of access to and from the Land.

Issues a. chain of title - 1) once created they often are not carried forward as part of the legal description 2) right to an easement is one of the “appurtenances” that are transferred as a matter of law b. inadequate legal description 1) practical location is as established on the ground 2) legally transferred either specifically or by operation of law c. elimination as encumbrance 1) express release 2) review of specific facts with underwriter (general description)

1. Make Sure the Burdened Property has notice Resolution A. 1. Make Sure the Burdened Property has notice 2. Include in the legal and insure

1. Include in Legal Description 2. Exception for location Resolution B. 1. Include in Legal Description 2. Exception for location

Surcharge An issue can arise when the easement owner attempts to subdivide the appurtenant property that is served by an easement or when attempting to add property to benefit from the easement. When the court finds a surcharge, the remedy is to reduce the intended use or property to that which was originally contemplated by the parties, as opposed to ending the easement altogether.It is clear that the addition of property to be served by the easement will be deemed a surcharge and will be enjoined by the court. The more problematic question is whether a dominant estate can be subdivided without creating a surcharge or overburdening. See, e.g. Patterson v. Chambers Power Co., 81 Or. 328, 159 P. 568 (1916); Ruhnke v. Aubert 58 Or. 6, 113 P. 38 (1911).