About Amerisurv| Contact    
Magazine | Newsletter    
Flickr Photos | Advertise    
HomeNewsNewsletterAmerisurv DirectoryJobsStoreAuthorsHistoryArchivesBlogVideosEvents

Sponsored By

Software Reviews
Continuing Series
An RTN expert provides everything you need to know about network-corrected real-time GNSS observations.
Click Here to begin the series,
or view the Article PDF's Here
76-PageFlip Compilation
of the entire series
Test Yourself

Got Answers?
Test your knowledge with NCEES-level questions.
  Start HERE
Meet the Authors
Check out our fine lineup of writers. Each an expert in his or her field.
Wow Factor
Sponsored By

Product Reviews
Partner Sites







Spatial Media LLC properties




Home arrow Archives   The American Surveyor     

Surveyors & Law: What Is An Easement and How Can One Be Created? Print E-mail
Written by James J. Demma, PS, Esquire   
Sunday, 29 June 2014

A 146Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

By taking some liberties with the exact verbiage, the following portion of the Minimum Standard Detail Requirements for an ALTA/ ACSM Land Title Survey (2011) require that the map or plat shall show:

The width and recording information of all plottable rights of way, easements and servitudes burdening and benefitting the property surveyed, as evidenced by Record Documents which have been provided to the surveyor; and that the field work shall include the location and character of all vehicular, pedestrian or other forms of access by others than the apparent occupants of the surveyed property to or across the surveyed property, including, but not limited to driveways, private roads and foot paths observed in the process of conducting the survey.

I will assume for the purpose of this article that most state minimum standard requirements for land surveys contain somewhat similar language. In the last article I wrote for The American Surveyor (April, 2014) I discussed how surveyors should be cautious in determining who owns and has title to a parcel of real property. I now want to turn my attention to what a surveyor may need to know in order to determine what easement rights a person may have in a parcel of real property, in order to satisfy the various minimum standards of practice which are applicable in the jurisdiction of the property.

We first must understand the definition of an easement, sometimes referred to in normal parlance as a right-of-way. The well-recognized treatises on the law of easements are in agreement that an easement is an interest in land--it is the right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose; and that an easement is a restriction upon the property rights of the owner of the servient estate. In using the words "servient estate," it must be recognized that for an easement to exist, there usually must be two tracts of land, with each one owned by different persons, one of the tracts generally referred to as the "dominant estate," which has the benefit of the easement, and the other tract, generally referred to as the "servient estate," over which the easement runs and burdens.

Saying all of that, it also must be recognized that there are many ways in which an easement can be created. The most common ways of creation are by an express grant or by reservation. That is, an easement can be created in the same manner and mode as a conveyance of land by a deed, and which would then be duly recorded in the local land record system. It must be emphasized, however, that in addition to the land record system, the establishment of an easement could also be found to have been so ordered in an adjudicated equity or law proceeding, and not be found in the land record system at all!

What should be most important to the land surveyor is that easements can be created by other modes which are commonly referred to as "easements by implication." This term means that an easement could be created without the necessity of a recorded document, but by the common law doctrine of prescription, the filing of plats, or by necessity.

As I said in my last article, a good and dependable title examination should, and probably will, reveal all of the recorded easements which a land surveyor needs to show on the survey, including those previously delineated on prior plats, which may show easements by implication. But one of the surveyor's main responsibilities and duties is to locate "on the ground" good evidence of apparent prescriptive easements and easements by necessity. However, my stern warning is that just because the surveyor has located an existing roadway, the surveyor cannot make an assumption that by the mere existence of the roadway it has somehow evolved into a legal easement by prescription or necessity. That determination is one for the courts to conclude, not for the land surveyor.

Generally (a word that should be used often), the law commentators have written that in order to establish an easement by prescription, it is necessary for the person claiming such a right to show adverse, exclusive, continuous and uninterrupted use of the way for a certain statutory period of years. And generally (again, that word), those commentators have written that easements by necessity are founded on a public policy which favors access from land to some public street. In order to establish such an easement, it must also be demonstrated that at some point in the past (maybe in the far distant past), the land for the benefit of the way was as claimed, and the land which it is claimed to be over belonged to the same person at the same time.

Expanding upon my homily on advice which should not be given, a land surveyor should never give an opinion (written or oral) as to whether there is in "existence" a prescriptive easement, or one by necessity, as this would be far beyond the scope of the surveyor's licensing laws. Just because there is a well-travelled roadway leading from a parcel of land to the public highway, that does not necessarily mean that the use has been "adverse," "exclusive," "continuous," and "uninterrupted" (for whatever each of those words really mean) for some definite long period of time, or that there is no other way to the public highway, and that both the servient and dominant parcels of land were owned by the same person at the same time.

Please understand that the complex laws pertaining to easements, both statutory and case law, cannot be fully explained in this short article, but I hope that I have given the readers of The American Surveyor something to ponder.
Jim Demma is a Maryland licensed professional land surveyor and has practiced law in both the State of Maryland and the District of Columbia for more than 30 years. His extensive practice has included land use & development, real estate contracts and titles, condominiums, easements, land patents, boundary disputes, and all matters that touch and concern the land.

A 146Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

< Prev   Next >

 American Surveyor Recent Articles
Thought Leader: Land is Too Important to Be Left to Land Specialists
A while back I was searching the Internet for an old treatise on land titles. A Google query yielded a book published in 1914. The author was Charles Claudius Kagey and the book was titled "Land Survey and Land Titles, a book for boys and girls, a reference volume for property owners, a text ....
Read the Article
Jason E. Foose, PS 
Decided Guidance: Wacker vs. Price - Irony in Sevenfold
This month's case takes us to Phoenix, Arizona in 1950. The Arizona Supreme Court went all guns-a-blazin' in Wacker vs. Price (216 P.2d 707 (Ariz. 1950)). Maybe it's just me, but I'm sensing plenty of irony and have taken license to point it out along the way. I like what the Court did with this case ....
Read the Article
Allen E. Cheves 
Around the Bend - A Visit to Carlson Software
The Ohio River is one of America's greatest, running near 1,000 miles between Pittsburgh and the Mighty Mississippi. Much of the coal and other products that fueled our nation's industrial expansion flowed between the shores of this maritime ....
Read the Article
Lee Lovell, PS 
Surveying & Mapping Economics Part 3 - Customers & Services
This article continues an inquiry into the economic conditions of the Surveying and Mapping industry (NAICS 541370) using data from the U.S. Census Bureau. This time we will look at customers and services. The data comes from the Economic Census conducted every 5 years on American ....
Read the Article
Jerry Penry, PS 
True Elevation: Black Elk Peak
Black Elk Peak, located in the Black Hills region of South Dakota, is the state's highest natural point. It is frequently referred to as the highest summit in the United States east of the Rocky Mountains. Two other peaks, Guadalupe Peak in Texas and ....
Read the Article
Larry Trojak 
Bringing The Goods - Mobile Scanning an Integral Component
When Jim Smith, Jerrad Burns and Charlie Patton left the Memphis division of a major construction company in 2015, they took with them the knowledge of how to get even the most complex jobs done and what equipment could best serve them in making that happen. So when they joined West ....
Read the Article
Lee Lovell, PS 
Test Yourself 41: Integers, Integers, and Integers
ABF is a 5:12:13 triangle, ACF is a 48:55:73 triangle, ADF is a 3:4:5 triangle, and AEF is a 7:24:25 triangle, all with integer sides and inscribed in a semi-circle. What are the lengths of BC, CD, and DE? ....
Read the Article
Wendy Lathrop, PS, CFM 
Vantage Point: Sunset or Sunrise?
While we often think of legislated government programs as static, they do change over time. Such evolution and opportunity for transformation are part of the dialogue in reauthorizing these programs. Every so many years there is a sunset on each government program, and this September is the ....
Read the Article


Amerisurv Exclusive Online-only Article ticker
Featured Amerisurv Events
List Your Event Here
contact Amerisurv


JAVAD Intros
Spoofer Buster

press [at] amerisurv.com
Online Internet Content


News Feeds

Subscribe to Amerisurv news & updates via RSS or get our Feedburn
xml feed

Need Help? See this RSS Tutorial

Historic Maps

post a job
Reach our audience of Professional land surveyors and Geo-Technology professionals with your GeoJobs career ad. Feel free to contact us if you need additional information.


Social Bookmarks

Amerisurv on Facebook 

Amerisurv LinkedIn Group 

Amerisurv Flickr Photos 

Amerisurv videos on YouTube 



The American Surveyor © All rights reserved / Privacy Statement
Spatial Media LLC
905 W 7th St #331
Frederick MD 21701
301-695-1538 - fax