ABANDOMENT OF EASEMENTS PRESENTED AT IRWA INTERNATIOAL CONFERENCE 2009

IMPORTANANCE OF EASEMENTS EASEMENTS ARE A PROPERTY RIGHT EASEMENTS ARE A PROPERTY RIGHT JUST LIKE A FEE SIMPLE JUST LIKE A FEE SIMPLE IF YOU SEE ONE IT SHOULD WAKE YOU UP IF YOU SEE ONE IT SHOULD WAKE YOU UP

INGORING AN EASEMENT CAN BE COSTLY IT COST ONE CLIENT 1.9 MILLION DOLLARS IT COST ONE CLIENT 1.9 MILLION DOLLARS JUST BECAUSE YOU ARE NOT GOING TO BUILD A BUILDING ON IT, DOES NOT MEAN THAT EASEMENTS ARE NOT IMPORTANT JUST BECAUSE YOU ARE NOT GOING TO BUILD A BUILDING ON IT, DOES NOT MEAN THAT EASEMENTS ARE NOT IMPORTANT

CREATION OF EASEMENTS EXPRESS GRANT EXPRESS GRANT PRESCRIPTION PRESCRIPTION CONDEMNATION CONDEMNATION IMPLICATION IMPLICATION ESSTOPPEL NECESSITY PLATTING

TYPES OF TERMINATION MERGER CONDEMNATION ABANDONMENT

WHAT IS AN EASEMENT? NON-POSSESSORY RIGHT TO USE THE LAND OF ANOTHER FOR A SPECIFIC PURPOSE

WHERE TO LOOK FIRST FOR ABANDONMENT LOCAL LAW METHOD OF CREATION EXPRESS GRANT-CREATING DOCUMENT ESSTOPEL-LOCAL LAW PRESCRIPTION-LOCAL LAW

CREATING DOUCMENT TEMORARY CONSTRUCTION EASEMENT TEMORARY CONSTRUCTION EASEMENT PURPOSE PURPOSE NEW CLAUSE NEW CLAUSE “NON-USE FOR STATED PURPOSE FOR A PERIOD OF TIME CONSTITUES ABANDONMENT “NON-USE FOR STATED PURPOSE FOR A PERIOD OF TIME CONSTITUES ABANDONMENT

AN EXAMPLE “ IT IS HEREBY AGREED BETWEEN THE PARTIES THAT IF THE EASEMENT CREATED HEREIN IS NOT USED FOR ANY OF THE STATED PURPOSES FOR 5 YEARS THAT THE EASEMENT HAS BEEN ABANDONED AND GRANTOR OWNS THE PROPERTY FREE AND CLEAR OF THE EASEMENT” “ IT IS HEREBY AGREED BETWEEN THE PARTIES THAT IF THE EASEMENT CREATED HEREIN IS NOT USED FOR ANY OF THE STATED PURPOSES FOR 5 YEARS THAT THE EASEMENT HAS BEEN ABANDONED AND GRANTOR OWNS THE PROPERTY FREE AND CLEAR OF THE EASEMENT”

THE LAW OF ABANDONMENT IS A MYSTERY IN MOST STATES AT COMMON LAW

IMPORTANT PROPERTY RIGHTS CHANGE BECOMES OBSOLETE-OILFIELD GOES DRY MATERIAL USED IN THE EASEMENT CAN BE SALVAGED BECOMES A LIABALITY-TAXABLE, BUT NO PROFIT NO LONGER NEEDED-ROADWAY NO LONGER USED

ABANDONMENT DEFINED NON-USE WITH THE INTENT TO ABANDON

NON-USE EASY TO PROVE EASY TO PROVE CAN BE USED TO SHOW THE INTENT TO ABANDON CAN BE USED TO SHOW THE INTENT TO ABANDON NON-USE ALONE IS NOT ABANDONMENT NON-USE ALONE IS NOT ABANDONMENT

INTENT TO ABANDON HARD TO PROVE INTENT HARD TO PROVE INTENT CIRCUMSTANCES SURROUNDING IS USED TO PROVE INTENT CIRCUMSTANCES SURROUNDING IS USED TO PROVE INTENT NON-USE NON-USE LACK OF MAINTENACE LACK OF MAINTENACE REASON FOR EASEMENT NO LONGER EXISTS REASON FOR EASEMENT NO LONGER EXISTS IMPOSSIBLITY OF PURPOSE OF EASEMENT IMPOSSIBLITY OF PURPOSE OF EASEMENT

MENTAL STATE MENTAL STATE ACCIDENT ACCIDENT NEGLIGENCE NEGLIGENCE RECKLESSNESS RECKLESSNESS INTENTIONAL INTENTIONAL

MENTAL STATE IN A DEATH ACCIDENT-NO ONE PAYS ACCIDENT-NO ONE PAYS NEGLIGENT- REASONABLE MAN TEST NEGLIGENT- REASONABLE MAN TEST RECKLESS-HIGHER DEGREE OF CULPLABITY RECKLESS-HIGHER DEGREE OF CULPLABITY INTENTIONAL-HIGHEST DEGREE OF CUPLABITY INTENTIONAL-HIGHEST DEGREE OF CUPLABITY

PROVING INTENT COURT LOOKS AT THE ACTS OF THE OWNER OF THE EASEMENT COURT LOOKS AT THE ACTS OF THE OWNER OF THE EASEMENT COURTS HAVE HELD THAT STANDARD OF PROOF IS: COURTS HAVE HELD THAT STANDARD OF PROOF IS: PREPONDERNCE OF EVIDENCE PREPONDERNCE OF EVIDENCE CLEAR AND SATISFACTORY EVIDENCE CLEAR AND SATISFACTORY EVIDENCE CLEAR AND DEFINTE PROOF CLEAR AND DEFINTE PROOF

CONCEPT OF ABANDONMENT THE RESULT OF CONFLICTING INTEREST DOES A PROPERTY OWNER HAVE A DUTY TO USE HIS/HER PROPERTY? DOES A PROPERTY OWNER HAVE A DUTY TO USE HIS/HER PROPERTY? SHOULD THE PROPERTY REMAIN ENCUMBERED WITH AN EASEMENT THAT IS NO LONGER BEING USED? SHOULD THE PROPERTY REMAIN ENCUMBERED WITH AN EASEMENT THAT IS NO LONGER BEING USED?

CONCEPT OF ABANDONMENT A RESULT OF CONFLICTING INTEREST

WHY DO YOU WANT EASEMENT ABANDONED? CENTER OF REFINIES IN UNITED STATES CENTER OF REFINIES IN UNITED STATES MOST WERE BUILT IN LATE 30S AND EARLY 40S MOST WERE BUILT IN LATE 30S AND EARLY 40S SOME HAVE NOT BEEN USED FOR 40 YEARS SOME HAVE NOT BEEN USED FOR 40 YEARS

FEW COURTS HAVE FACED THIS PROBLEM MOST THAT HAVE FACED IT AGREE THAT THIS IS A FACT QUESTION NOT A QUESTION OF LAW MOST THAT HAVE FACED IT AGREE THAT THIS IS A FACT QUESTION NOT A QUESTION OF LAW JURY MUST ANSWER THE QUESTION OF INTENT THIS MEANS EVERY ABANDONMENT QUESTION HAS TO BE DECIDED IN A SEPARATE TRIAL

ADVERSE POSSESSION V. ABANDONMENT IN SOME JURISDICTION YOU MUST COMPLY WITH ADVERSE POSSESSION RULES TO PROVE ABANDONMENT IN SOME JURISDICTION YOU MUST COMPLY WITH ADVERSE POSSESSION RULES TO PROVE ABANDONMENT CANNOT ADVERSELY POSSESS AGAINST THE GOVERNMENT CANNOT ADVERSELY POSSESS AGAINST THE GOVERNMENT SAME RULES OF POSSESSION AS ADVERSE POSSESSION SAME RULES OF POSSESSION AS ADVERSE POSSESSION

SURFACE EASEMENTS IT IS EASIER TO PROVE POSSESSION OF AN EASEMENT THAT USES THE SUFACE ONLY IT IS EASIER TO PROVE POSSESSION OF AN EASEMENT THAT USES THE SUFACE ONLY HOW DO YOU POSSESS A PIPELINE, WATERLINE OR AN UNDERGOUND COMMUICATIONS WIRE HOW DO YOU POSSESS A PIPELINE, WATERLINE OR AN UNDERGOUND COMMUICATIONS WIRE REMEMBER IT HAS TO BE EXCLUSIVE POSSESSION REMEMBER IT HAS TO BE EXCLUSIVE POSSESSION

GRAND LAKE GATHERING COMPANY V. GRAY ABANDONMENT OF ROAD EASEMENT ABANDONMENT OF ROAD EASEMENT NON USE-FARMERS HAD FENCED THE ROAD NON USE-FARMERS HAD FENCED THE ROAD PLAINTIFFS PORTION HAD BEEN FENCED FOR 20 YEARS PLAINTIFFS PORTION HAD BEEN FENCED FOR 20 YEARS PLAINTIFF’S PORTION HAD BEEN ABANDONED BY THE COUNTY PLAINTIFF’S PORTION HAD BEEN ABANDONED BY THE COUNTY PIPELINE COMPANY ATTEMEPTED TO USE THE ROADWAY EASEMENT PIPELINE COMPANY ATTEMEPTED TO USE THE ROADWAY EASEMENT BRIDGE OVER MAJOR RIVER HAD WASHED OUT AND NEVER REPAIRED BRIDGE OVER MAJOR RIVER HAD WASHED OUT AND NEVER REPAIRED NEW ROAD TOOK THE TRAFFIC NEW ROAD TOOK THE TRAFFIC

ACCESS EASEMENT OWNERS CLAIM EASEMENT FOR ALL PURPOSES OWNERS CLAIM EASEMENT FOR ALL PURPOSES COURT HELD THAT EASEMENT WAS ONLY TO ENTER PROPERTY TO LOAD AND UNLOAD RAILROAD CARS COURT HELD THAT EASEMENT WAS ONLY TO ENTER PROPERTY TO LOAD AND UNLOAD RAILROAD CARS RAILROAD TOOK UP TRACK THEREFORE IT BECAME IMPOSSIBLE TO GET TO EASEMENT RAILROAD TOOK UP TRACK THEREFORE IT BECAME IMPOSSIBLE TO GET TO EASEMENT COURT HELD EASEMENT WAS ABANDONED BECAUSE OF IMPOSSIBLITY OF INTENDED USE COURT HELD EASEMENT WAS ABANDONED BECAUSE OF IMPOSSIBLITY OF INTENDED USE

HENDERSON V. LE DUKE A CHANGE IN USE MAY CONSITUTE ABANDONMENT A CHANGE IN USE MAY CONSITUTE ABANDONMENT USING A WATERLINE EASEMENT TO PUT IN UNDERGROUND COMMUICATION LINES USING A WATERLINE EASEMENT TO PUT IN UNDERGROUND COMMUICATION LINES CHANGING THE USE OF A ROADWAY EASEMENT TO A PARK CHANGING THE USE OF A ROADWAY EASEMENT TO A PARK

SHAW V. WILLIAMS ABANDONMENT MAY OCCUR WHEN THE PURPOSE BECOMES IMPOSSIBLE OR HIGHLY IMPROBABLE ABANDONMENT MAY OCCUR WHEN THE PURPOSE BECOMES IMPOSSIBLE OR HIGHLY IMPROBABLE EASEMENT TO STORE WATER TO USE IN RAILROAD STEAM ENGINES EASEMENT TO STORE WATER TO USE IN RAILROAD STEAM ENGINES WHEN RAILROADS WENT TO DESIEL, EASEMENT ABANDONED WHEN RAILROADS WENT TO DESIEL, EASEMENT ABANDONED

BREWER AND TAYLOR OWNER OF RAILROAD EASEMENT CONVEYED THE EASEMENT TO A PRIVATE ENTITY OWNER OF RAILROAD EASEMENT CONVEYED THE EASEMENT TO A PRIVATE ENTITY COURT HELD ABANDONMENT BECAUSE THEY HAD PREVIOUSLY HELD THAT THE CONVEYANCE OF A PUBLIC EASEMENT TO A PRIVATE ENTITY CONSTITUED ABANDONMENT COURT HELD ABANDONMENT BECAUSE THEY HAD PREVIOUSLY HELD THAT THE CONVEYANCE OF A PUBLIC EASEMENT TO A PRIVATE ENTITY CONSTITUED ABANDONMENT

HOW TO PROTECT YOURSELF FROM LOSING A PIPELINE EASEMENT TO ABANDONMEN IS THE LINE MERELY IDLE OR COMPLETELY ABANDONED IS THE LINE MERELY IDLE OR COMPLETELY ABANDONED HOW LONG HAS IT BE IDLE OR ABANDONED HOW LONG HAS IT BE IDLE OR ABANDONED DOES THE COMPANY MAINTAIN, TEST AND/OR PATROL THE LINE DOES THE COMPANY MAINTAIN, TEST AND/OR PATROL THE LINE DOES THE COMPANY SHOW THE LINE OR EASEMENT AS AN ASSET AND/OR PAY TAXES DOES THE COMPANY SHOW THE LINE OR EASEMENT AS AN ASSET AND/OR PAY TAXES

TESTS FOR PIPELINE EASEMENT ABANDONMENT (CONT.) ARE THERE OTHER ACTIVE LINES IN THE EASEMENT ARE THERE OTHER ACTIVE LINES IN THE EASEMENT HAS THE COMPANY CONSTRUCTED NEW LINES IN ANOTHER EASEMENT TO REPLACE IT HAS THE COMPANY CONSTRUCTED NEW LINES IN ANOTHER EASEMENT TO REPLACE IT HAS THE COMPANY IDLED OR ABANDONED THE FACILITIES AT EITHER END OF THE LINE HAS THE COMPANY IDLED OR ABANDONED THE FACILITIES AT EITHER END OF THE LINE

TESTS FOR PIPELINE EASEMENT ABANDONMENT DOES THE CONDITION OF THE LINE MAKE IT COST PROHIBITIVE TO USE THE LINE DOES THE CONDITION OF THE LINE MAKE IT COST PROHIBITIVE TO USE THE LINE HAS THE COMPANY REALEASED OR ABANDONED OTHER SEGMENTS OF THE EASEMENT HAS THE COMPANY REALEASED OR ABANDONED OTHER SEGMENTS OF THE EASEMENT DOES THE COMPANY HAVE PLANS TO USE THE LINE OR PLACE OTHER LINES IN THE EASEMENT IN THE FUTURE DOES THE COMPANY HAVE PLANS TO USE THE LINE OR PLACE OTHER LINES IN THE EASEMENT IN THE FUTURE

REPLACEMENT OF EASEMENTS EASEMENT REPLACED BECAUSE FREEWAY EXPANSION COVERED UP THE OLD EASEMENT EASEMENT REPLACED BECAUSE FREEWAY EXPANSION COVERED UP THE OLD EASEMENT NEWLY ACQUIRED EASEMENT IN THE WRONG PLACE TO FIT WITH AN OVERPASS NEWLY ACQUIRED EASEMENT IN THE WRONG PLACE TO FIT WITH AN OVERPASS

FIRST RIGHT OF WAY EASEMENT PROPOSED UNDERPASS

WHAT IS ABANDONMENT? DETERMINED ON A CASE BY CASE BASIS DETERMINED ON A CASE BY CASE BASIS COURTS HAVE NOT GIVEN US A CLEAR PICTURE COURTS HAVE NOT GIVEN US A CLEAR PICTURE ABANDONMENT IS TRULY A QUESTION OF FACT ABANDONMENT IS TRULY A QUESTION OF FACT THE ONLY CERTIANITY IS UNCERTAINTY THE ONLY CERTIANITY IS UNCERTAINTY