Title Tips - May 2014
STEWART TITLE TIPS - MAY 2014
IMPLIED EASEMENTS - Most easements are said to be "express" easements in that they are created by an express grant or reservation in a deed, in a separate grant of easement, or depicted on a recorded plat. The parcel served by the easement is called the "dominant" estate, while the parcel over which the easement runs is known as the "servient" estate. The easement is aid to be appurtenant to the dominant estate and passed by deeds of the dominant estate even though not expressly mentioned therein. Kenyon v. Nichols , 1 R.I. 411 (R.I.G.L. 34-11-28). An implied easement may be imposed by the courts where a common landowner subdivides a common parcel and fails to provide necessary easements in the conveyance. This is true whether they are needed for access or for utilities. An implied easement is based upon the theory that when a grantor conveys away a portion of his or her property, he or she intents to reserve in the conveyance whatever easements are necessary for the use and enjoyment of his or her remaining land. Bovi v.Murray , 601 A.2d 960, 962 (1992). The Rhode Island Supreme Court has also ruled that when land is divided, the law will imply a grant of "all those continuous and apparent easements which have in fact been used by the owner during the time when all the resulting parcels were unified under one owner, though they had no legal existence as easements." Catalano v. Woodward, 617 A.2d 1363, 1367 (1992). In other words, if utilities run through the unified parcel before its subdivision, the courts will probably imply a reservation of utility easements in any conveyances from the common landowner.
As usual, a title attorney should never insure such an easement without a final court adjudication as to its existence. Also, any parcel is dependent upon any easement for either access or utilities across a servient estate, a full title examination of the servient parcel is necessary. Although all the Rhode Island Supreme Court cases concern utilities, the more usual situation encountered by title companies is when a common landowner subdivides rural land without making provision for a right of way to a family burial ground. Often, the only clue to the existence of the burial ground is a depiction on an Assessor's Map. Whenever there is a family burial ground either on or adjacent to an insured parcel, a Special Exception should be taken in Schedule B of the policy for any possible right of way to and from the site.
As to utilities or right of access, the imposition of an easement by the courts is based upon the principal that a person conveying property intends to include in the conveyance a reservation of whatever is necessary for the use and enjoyment of the land retained. Hilley v. Lawrence, 972 A.2d 643, 650 (2009). The test of necessity is whether the easement is reasonably necessary for the convenient and comfortable enjoyment of the property as it existed when the severance was made. Unlike other states, Rhode Island has no requirement to show that there is a current necessity, but only as the time of severance.
Two nearly identical cases, spaced eighty-one years apart, resulted in existing sewer pipes being adopted by the court as the location of easement which the court imposed n conveyances of common landowners, even though there was no indication of their existence in the land evidence records. In Wisel V. Smira , 49 R.I. 246 (1928), the common owner of four Providence apartment houses failed to provide an easement incorporating an existing sewer line through the back yards when he sold them separately. One of the lots was ruled the servient estate when its purchaser attempted to cut the sewer pipe crossing his property. This resulted even though all the apartment houses could have connected to city sewers in the street they fronted on. In Vaillancourt v. Motta , 986 A.2d 985 (2009), a group of Newport condo owners, in a renovated mansion, prevailed when an adjoining land owner attempted to cut their existing sewer line which ran from the back of the condo property across his parcel, and had been formally joined to the mansion as a carriage shed. The condo could have been connected to the city sewer line in the street in front of the building. The court found, however, that the old sewer line was necessary at the time the original common parcel was subdivided. Consequently, an easement was imposed on the common landowner's conveyance.
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