ABANDOMENT OF EASEMENTS PRESENTED AT IRWA INTERNATIOAL CONFERENCE 2009.
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Transcript of ABANDOMENT OF EASEMENTS PRESENTED AT IRWA INTERNATIOAL CONFERENCE 2009.
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ABANDOMENT OF ABANDOMENT OF EASEMENTSEASEMENTS
PRESENTED AT IRWA PRESENTED AT IRWA INTERNATIOAL CONFERENCE INTERNATIOAL CONFERENCE
20092009
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IMPORTANANCE OF IMPORTANANCE OF EASEMENTSEASEMENTS
EASEMENTS ARE A EASEMENTS ARE A PROPERTYPROPERTY RIGHT RIGHT
JUST LIKE A FEE JUST LIKE A FEE SIMPLESIMPLE
IF YOU SEE ONE IT IF YOU SEE ONE IT SHOULD WAKE SHOULD WAKE YOU UPYOU UP
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INGORING AN EASEMENT CAN INGORING AN EASEMENT CAN BE COSTLYBE COSTLY
IT COST ONE CLIENT 1.9 MILLION IT COST ONE CLIENT 1.9 MILLION DOLLARSDOLLARS
JUST BECAUSE YOU ARE NOT GOING JUST BECAUSE YOU ARE NOT GOING TO BUILD A BUILDING ON IT, DOES TO BUILD A BUILDING ON IT, DOES NOT MEAN THAT EASEMENTS ARE NOT MEAN THAT EASEMENTS ARE NOT IMPORTANTNOT IMPORTANT
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CREATION OF EASEMENTSCREATION OF EASEMENTS
EXPRESS GRANTEXPRESS GRANT
PRESCRIPTIONPRESCRIPTION
CONDEMNATIONCONDEMNATION
IMPLICATIONIMPLICATION
ESSTOPPELESSTOPPEL
NECESSITYNECESSITY
PLATTING PLATTING
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TYPES OF TERMINATIONTYPES OF TERMINATION
MERGERMERGER
CONDEMNATIONCONDEMNATION
ABANDONMENT
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WHAT IS AN EASEMENT?WHAT IS AN EASEMENT?
NON-POSSESSORY RIGHT TO USE THE NON-POSSESSORY RIGHT TO USE THE
LAND OF ANOTHER FOR A SPECIFIC LAND OF ANOTHER FOR A SPECIFIC
PURPOSEPURPOSE
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WHERE TO LOOK FIRST FOR WHERE TO LOOK FIRST FOR ABANDONMENTABANDONMENT
LOCAL LAWLOCAL LAW
METHOD OF CREATIONMETHOD OF CREATION EXPRESS GRANT-CREATING DOCUMENTEXPRESS GRANT-CREATING DOCUMENT ESSTOPEL-LOCAL LAWESSTOPEL-LOCAL LAW PRESCRIPTION-LOCAL LAWPRESCRIPTION-LOCAL LAW
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CREATING DOUCMENTCREATING DOUCMENT
TEMORARY CONSTRUCTION TEMORARY CONSTRUCTION EASEMENTEASEMENT
PURPOSEPURPOSE
NEW CLAUSENEW CLAUSE ““NON-USE FOR STATED PURPOSE FOR A NON-USE FOR STATED PURPOSE FOR A
PERIOD OF TIME CONSTITUES PERIOD OF TIME CONSTITUES ABANDONMENTABANDONMENT
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AN EXAMPLEAN EXAMPLE
“ “ IT IS HEREBY AGREED BETWEEN IT IS HEREBY AGREED BETWEEN THE PARTIES THAT IF THE EASEMENT THE PARTIES THAT IF THE EASEMENT CREATED HEREIN IS NOT USED FOR CREATED HEREIN IS NOT USED FOR ANY OF THE STATED PURPOSES FOR ANY OF THE STATED PURPOSES FOR 5 YEARS THAT THE EASEMENT HAS 5 YEARS THAT THE EASEMENT HAS BEEN ABANDONED AND GRANTOR BEEN ABANDONED AND GRANTOR OWNS THE PROPERTY FREE AND OWNS THE PROPERTY FREE AND CLEAR OF THE EASEMENT”CLEAR OF THE EASEMENT”
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THE LAW OF ABANDONMENT IS THE LAW OF ABANDONMENT IS A MYSTERYA MYSTERY
IN MOST STATESIN MOST STATES
AT COMMON LAWAT COMMON LAW
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IMPORTANT PROPERTY RIGHTS IMPORTANT PROPERTY RIGHTS CHANGECHANGE
BECOMES OBSOLETE-OILFIELD GOES DRYBECOMES OBSOLETE-OILFIELD GOES DRY
MATERIAL USED IN THE EASEMENT CAN BE MATERIAL USED IN THE EASEMENT CAN BE SALVAGEDSALVAGED
BECOMES A LIABALITY-TAXABLE, BUT NO BECOMES A LIABALITY-TAXABLE, BUT NO PROFITPROFIT
NO LONGER NEEDED-ROADWAY NO LONGER NO LONGER NEEDED-ROADWAY NO LONGER USEDUSED
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ABANDONMENT DEFINEDABANDONMENT DEFINED
NON-USENON-USE
WITH THE INTENT TO ABANDONWITH THE INTENT TO ABANDON
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NON-USENON-USE
EASY TO PROVEEASY TO PROVE
CAN BE USED TO SHOW THE INTENT CAN BE USED TO SHOW THE INTENT TO ABANDONTO ABANDON
NON-USE ALONE IS NOT NON-USE ALONE IS NOT ABANDONMENTABANDONMENT
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INTENT TO ABANDONINTENT TO ABANDON
HARD TO PROVE INTENTHARD TO PROVE INTENT
CIRCUMSTANCES SURROUNDING IS CIRCUMSTANCES SURROUNDING IS USED TO PROVE INTENTUSED TO PROVE INTENT NON-USENON-USE LACK OF MAINTENACELACK OF MAINTENACE REASON FOR EASEMENT NO LONGER REASON FOR EASEMENT NO LONGER
EXISTSEXISTS IMPOSSIBLITY OF PURPOSE OF EASEMENTIMPOSSIBLITY OF PURPOSE OF EASEMENT
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MENTAL STATEMENTAL STATE
ACCIDENTACCIDENT
NEGLIGENCENEGLIGENCE
RECKLESSNESSRECKLESSNESS
INTENTIONALINTENTIONAL
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MENTAL STATE IN A DEATHMENTAL STATE IN A DEATH
ACCIDENT-NO ONE PAYSACCIDENT-NO ONE PAYS NEGLIGENT- REASONABLE MAN TESTNEGLIGENT- REASONABLE MAN TEST RECKLESS-HIGHER DEGREE OF RECKLESS-HIGHER DEGREE OF
CULPLABITYCULPLABITY INTENTIONAL-HIGHEST DEGREE OF INTENTIONAL-HIGHEST DEGREE OF
CUPLABITYCUPLABITY
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PROVING INTENTPROVING INTENT
COURT LOOKS AT THE ACTS OF THE COURT LOOKS AT THE ACTS OF THE OWNER OF THE EASEMENTOWNER OF THE EASEMENT
COURTS HAVE HELD THAT COURTS HAVE HELD THAT STANDARD OF PROOF IS:STANDARD OF PROOF IS: PREPONDERNCE OF EVIDENCEPREPONDERNCE OF EVIDENCE
CLEAR AND SATISFACTORY EVIDENCECLEAR AND SATISFACTORY EVIDENCE
CLEAR AND DEFINTE PROOFCLEAR AND DEFINTE PROOF
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CONCEPT OF ABANDONMENT CONCEPT OF ABANDONMENT THE RESULT OF CONFLICTING THE RESULT OF CONFLICTING
INTERESTINTEREST DOES A PROPERTY OWNER HAVE A DOES A PROPERTY OWNER HAVE A
DUTY TO USE HIS/HER PROPERTY?DUTY TO USE HIS/HER PROPERTY?
SHOULD THE PROPERTY REMAIN SHOULD THE PROPERTY REMAIN ENCUMBERED WITH AN EASEMENT ENCUMBERED WITH AN EASEMENT THAT IS NO LONGER BEING USED?THAT IS NO LONGER BEING USED?
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CONCEPT OF ABANDONMENT A CONCEPT OF ABANDONMENT A RESULT OF CONFLICTING RESULT OF CONFLICTING
INTERESTINTEREST
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WHY DO YOU WANT EASEMENT WHY DO YOU WANT EASEMENT ABANDONED?ABANDONED?
CENTER OF CENTER OF REFINIES IN REFINIES IN UNITED STATESUNITED STATES
MOST WERE BUILT MOST WERE BUILT IN LATE 30S AND IN LATE 30S AND EARLY 40SEARLY 40S
SOME HAVE NOT SOME HAVE NOT BEEN USED FOR 40 BEEN USED FOR 40 YEARSYEARS
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FEW COURTS HAVE FACED FEW COURTS HAVE FACED THIS PROBLEMTHIS PROBLEM
MOST THAT HAVE FACED IT AGREE MOST THAT HAVE FACED IT AGREE THAT THIS IS A FACT QUESTION NOT THAT THIS IS A FACT QUESTION NOT A QUESTION OF LAWA QUESTION OF LAW
JURY MUST ANSWER THE QUESTION OF JURY MUST ANSWER THE QUESTION OF INTENTINTENT
THIS MEANS EVERY ABANDONMENT THIS MEANS EVERY ABANDONMENT QUESTION HAS TO BE DECIDED IN A QUESTION HAS TO BE DECIDED IN A SEPARATE TRIALSEPARATE TRIAL
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ADVERSE POSSESSION V. ADVERSE POSSESSION V. ABANDONMENTABANDONMENT
IN SOME JURISDICTION YOU MUST IN SOME JURISDICTION YOU MUST COMPLY WITH ADVERSE POSSESSION COMPLY WITH ADVERSE POSSESSION RULES TO PROVE ABANDONMENTRULES TO PROVE ABANDONMENT
CANNOT ADVERSELY POSSESS CANNOT ADVERSELY POSSESS AGAINST THE GOVERNMENTAGAINST THE GOVERNMENT
SAME RULES OF POSSESSION AS SAME RULES OF POSSESSION AS ADVERSE POSSESSIONADVERSE POSSESSION
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SURFACE EASEMENTSSURFACE EASEMENTS
IT IS EASIER TO PROVE POSSESSION OF AN IT IS EASIER TO PROVE POSSESSION OF AN EASEMENT THAT USES THE SUFACE ONLYEASEMENT THAT USES THE SUFACE ONLY
HOW DO YOU POSSESS A PIPELINE, HOW DO YOU POSSESS A PIPELINE, WATERLINE OR AN UNDERGOUND WATERLINE OR AN UNDERGOUND COMMUICATIONS WIRECOMMUICATIONS WIRE
REMEMBER IT HAS TO BE EXCLUSIVE REMEMBER IT HAS TO BE EXCLUSIVE POSSESSIONPOSSESSION
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GRAND LAKE GATHERING GRAND LAKE GATHERING COMPANY V. GRAYCOMPANY V. GRAY
ABANDONMENT OF ROAD EASEMENTABANDONMENT OF ROAD EASEMENT NON USE-FARMERS HAD FENCED THE NON USE-FARMERS HAD FENCED THE
ROADROAD PLAINTIFFS PORTION HAD BEEN FENCED PLAINTIFFS PORTION HAD BEEN FENCED
FOR 20 YEARSFOR 20 YEARS PLAINTIFF’S PORTION HAD BEEN PLAINTIFF’S PORTION HAD BEEN
ABANDONED BY THE COUNTYABANDONED BY THE COUNTY PIPELINE COMPANY ATTEMEPTED TO USE PIPELINE COMPANY ATTEMEPTED TO USE
THE ROADWAY EASEMENT THE ROADWAY EASEMENT BRIDGE OVER MAJOR RIVER HAD WASHED BRIDGE OVER MAJOR RIVER HAD WASHED
OUT AND NEVER REPAIREDOUT AND NEVER REPAIRED NEW ROAD TOOK THE TRAFFICNEW ROAD TOOK THE TRAFFIC
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ACCESS EASEMENTACCESS EASEMENT
OWNERS CLAIM EASEMENT FOR ALL OWNERS CLAIM EASEMENT FOR ALL PURPOSESPURPOSES
COURT HELD THAT EASEMENT WAS ONLY COURT HELD THAT EASEMENT WAS ONLY TO ENTER PROPERTY TO LOAD AND TO ENTER PROPERTY TO LOAD AND UNLOAD RAILROAD CARSUNLOAD RAILROAD CARS
RAILROAD TOOK UP TRACK THEREFORE IT RAILROAD TOOK UP TRACK THEREFORE IT BECAME IMPOSSIBLE TO GET TO EASEMENTBECAME IMPOSSIBLE TO GET TO EASEMENT
COURT HELD EASEMENT WAS ABANDONED COURT HELD EASEMENT WAS ABANDONED BECAUSE OF IMPOSSIBLITY OF INTENDED BECAUSE OF IMPOSSIBLITY OF INTENDED USEUSE
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HENDERSON V. LE DUKEHENDERSON V. LE DUKE
A CHANGE IN USE MAY CONSITUTE A CHANGE IN USE MAY CONSITUTE ABANDONMENTABANDONMENT
USING A WATERLINE EASEMENT TO PUT USING A WATERLINE EASEMENT TO PUT IN UNDERGROUND COMMUICATION IN UNDERGROUND COMMUICATION LINESLINES
CHANGING THE USE OF A ROADWAY CHANGING THE USE OF A ROADWAY EASEMENT TO A PARKEASEMENT TO A PARK
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SHAW V. WILLIAMSSHAW V. WILLIAMS
ABANDONMENT MAY OCCUR WHEN ABANDONMENT MAY OCCUR WHEN THE PURPOSE BECOMES IMPOSSIBLE THE PURPOSE BECOMES IMPOSSIBLE OR HIGHLY IMPROBABLEOR HIGHLY IMPROBABLE
EASEMENT TO STORE WATER TO USE EASEMENT TO STORE WATER TO USE IN RAILROAD STEAM ENGINESIN RAILROAD STEAM ENGINES
WHEN RAILROADS WENT TO DESIEL, WHEN RAILROADS WENT TO DESIEL, EASEMENT ABANDONEDEASEMENT ABANDONED
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BREWER AND TAYLORBREWER AND TAYLOR
OWNER OF RAILROAD EASEMENT OWNER OF RAILROAD EASEMENT CONVEYED THE EASEMENT TO A CONVEYED THE EASEMENT TO A PRIVATE ENTITYPRIVATE ENTITY
COURT HELD ABANDONMENT COURT HELD ABANDONMENT BECAUSE THEY HAD PREVIOUSLY BECAUSE THEY HAD PREVIOUSLY HELD THAT THE CONVEYANCE OF A HELD THAT THE CONVEYANCE OF A PUBLIC EASEMENT TO A PRIVATE PUBLIC EASEMENT TO A PRIVATE ENTITY CONSTITUED ABANDONMENTENTITY CONSTITUED ABANDONMENT
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HOW TO PROTECT YOURSELF HOW TO PROTECT YOURSELF FROM LOSING A PIPELINE FROM LOSING A PIPELINE
EASEMENT TO ABANDONMENEASEMENT TO ABANDONMEN IS THE LINE MERELY IDLE OR COMPLETELY IS THE LINE MERELY IDLE OR COMPLETELY
ABANDONEDABANDONED HOW LONG HAS IT BE IDLE OR HOW LONG HAS IT BE IDLE OR
ABANDONEDABANDONED DOES THE COMPANY MAINTAIN, TEST DOES THE COMPANY MAINTAIN, TEST
AND/OR PATROL THE LINEAND/OR PATROL THE LINE DOES THE COMPANY SHOW THE LINE OR DOES THE COMPANY SHOW THE LINE OR
EASEMENT AS AN ASSET AND/OR PAY EASEMENT AS AN ASSET AND/OR PAY TAXESTAXES
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TESTS FOR PIPELINE TESTS FOR PIPELINE EASEMENT ABANDONMENT EASEMENT ABANDONMENT
(CONT.)(CONT.) ARE THERE OTHER ACTIVE LINES IN ARE THERE OTHER ACTIVE LINES IN
THE EASEMENTTHE EASEMENT HAS THE COMPANY CONSTRUCTED HAS THE COMPANY CONSTRUCTED
NEW LINES IN ANOTHER EASEMENT NEW LINES IN ANOTHER EASEMENT TO REPLACE ITTO REPLACE IT
HAS THE COMPANY IDLED OR HAS THE COMPANY IDLED OR ABANDONED THE FACILITIES AT ABANDONED THE FACILITIES AT EITHER END OF THE LINEEITHER END OF THE LINE
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TESTS FOR PIPELINE TESTS FOR PIPELINE EASEMENT ABANDONMENTEASEMENT ABANDONMENT
DOES THE CONDITION OF THE LINE DOES THE CONDITION OF THE LINE MAKE IT COST PROHIBITIVE TO USE MAKE IT COST PROHIBITIVE TO USE THE LINETHE LINE
HAS THE COMPANY REALEASED OR HAS THE COMPANY REALEASED OR ABANDONED OTHER SEGMENTS OF ABANDONED OTHER SEGMENTS OF THE EASEMENTTHE EASEMENT
DOES THE COMPANY HAVE PLANS TO DOES THE COMPANY HAVE PLANS TO USE THE LINE OR PLACE OTHER USE THE LINE OR PLACE OTHER LINES IN THE EASEMENT IN THE LINES IN THE EASEMENT IN THE FUTUREFUTURE
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REPLACEMENT OF EASEMENTS REPLACEMENT OF EASEMENTS
EASEMENT REPLACED BECAUSE EASEMENT REPLACED BECAUSE FREEWAY EXPANSION COVERED UP FREEWAY EXPANSION COVERED UP THE OLD EASEMENTTHE OLD EASEMENT
NEWLY ACQUIRED EASEMENT IN THE NEWLY ACQUIRED EASEMENT IN THE WRONG PLACE TO FIT WITH AN WRONG PLACE TO FIT WITH AN OVERPASSOVERPASS
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FIRST RIGHT OF WAY EASEMENT
PROPOSED UNDERPASS
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WHAT IS ABANDONMENT?WHAT IS ABANDONMENT?
DETERMINED ON A CASE BY CASE BASISDETERMINED ON A CASE BY CASE BASIS
COURTS HAVE NOT GIVEN US A CLEAR COURTS HAVE NOT GIVEN US A CLEAR PICTUREPICTURE
ABANDONMENT IS TRULY A QUESTION ABANDONMENT IS TRULY A QUESTION OF FACTOF FACT
THE ONLY CERTIANITY IS UNCERTAINTYTHE ONLY CERTIANITY IS UNCERTAINTY