ABANDOMENT OF EASEMENTS

1. ABANDOMENT OF EASEMENTS PRESENTED AT IRWA INTERNATIOAL CONFERENCE 2009

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

3. INGORING AN EASEMENT CAN BE COSTLY • 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

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

5. TYPES OF TERMINATION • MERGER • CONDEMNATION • ABANDONMENT

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

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

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

9. 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”

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

11. 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

12. ABANDONMENT DEFINED NON-USE WITH THE INTENT TO ABANDON

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

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

16. MENTAL STATE • ACCIDENT • NEGLIGENCE • RECKLESSNESS • INTENTIONAL

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

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

19. CONCEPT OF ABANDONMENT THE RESULT OF CONFLICTING INTEREST • 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?

20. CONCEPT OF ABANDONMENT A RESULT OF CONFLICTING INTEREST

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

24. FEW COURTS HAVE FACED THIS PROBLEM • 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

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

26. SURFACE EASEMENTS • 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 • REMEMBER IT HAS TO BE EXCLUSIVE POSSESSION

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

28. ACCESS EASEMENT • OWNERS CLAIM EASEMENT FOR ALL PURPOSES • 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 • COURT HELD EASEMENT WAS ABANDONED BECAUSE OF IMPOSSIBLITY OF INTENDED USE

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

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

31. BREWER AND TAYLOR • 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

32. HOW TO PROTECT YOURSELF FROM LOSING A PIPELINE EASEMENT TO ABANDONMEN • IS THE LINE MERELY IDLE OR COMPLETELY ABANDONED • HOW LONG HAS IT BE IDLE OR ABANDONED • 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

33. TESTS FOR PIPELINE EASEMENT ABANDONMENT (CONT.) • ARE THERE OTHER ACTIVE LINES IN THE EASEMENT • 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

34. TESTS FOR PIPELINE EASEMENT ABANDONMENT • 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 • DOES THE COMPANY HAVE PLANS TO USE THE LINE OR PLACE OTHER LINES IN THE EASEMENT IN THE FUTURE

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

38. PROPOSED UNDERPASS FIRST RIGHT OF WAY EASEMENT

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