Daily Development for Tuesday, February 15, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

There are two reports of the same case dealing with different aspects of easement termination

EASEMENTS; EXTINGUISHMENT; EROSION: Easement in beach area is not extinguished when beach area falls below mean high water line and thus falls into public ownership, but remains inchoate and can reattach if and when private rights are permitted in the beach area.

Bubis v. Kassin, 733 A.2d 1232 ( N.J. App. 1999)

At one time, an entire municipality was owned by a developer who prepared a map subdividing the tract into lots, blocks, and streets. The most easterly street was unnamed but was described on the map as "Bluff." It immediately adjoined an area of the map described as "Beach." Subsequent deeds conveyed not only the designated lot but also an easement over "a Part of Beach and Bluff," which was described as follows: "a right of way, to be used in common with all other owners and occupants of lots as shown on [the map], for the [lot owners] ... to pass and repass on foot, on, over and across a certain strip of land, being part of Beach and Bluff as shown on [the map] ... ."

A party acquired some ocean front lots and asserted that the other property owners no longer had any right to use the streets leading to the Beach and Bluff because the easement in those areas was extinguished.

The lower court conducted a two day trial at which the proofs were primarily addressed to the question of whether any part of the area described on the map as Beach and Bluff was still above the mean high water line. It concluded that all of Beach and Bluff was now below that line. Consequently, it determined that any private easements that the property owners may have enjoyed over the named streets "ceased to exist with the submerging of" Beach and Bluff.

On appeal, the inland owners argued that even if the court's finding was correct, and the Beach and Bluff were now below the mean high water line, the easement to the beach and ocean over the public streets remained in place. The Appellate Division agreed with appellants. It concluded that erosion of the Beach and Bluff did not extinguish the private rights of access to the beach and ocean. The court initially noted that the word "beach" is commonly understood to refer to the area between the low and high water lines. Consequently, it was reasonable to assume that the parties to the original conveyances contemplated that the portion of the land that was subject to the expressed easement (the Beach) was below the mean water line.

Although an upland owner does not own the public land that is below the mean water line, in the nineteenth century an upland owner could obtain ownership of the land between the mean high tide and low tide lines by artificially filling the area. It was also recognized that the upland owner could place encroachments, such as bath houses, below the mean water line. Further, early cases had held that if the seaside areas revert to private ownership by accretion as the shoreline recedes, any easements in the beach area reattach. Consequently, the complaining property owner's private right of access to the beach and ocean was not contingent upon some portion of the Beach and Bluff remaining above the high water line.

Comment: The editor, who believes that property rights are true right to be bought and sold, and not eliminated by utilitarian reasoning, loves this case. Easements cannot be drowned or swallowed by a public trust.

EASEMENTS; TERMINATION; ABANDONMENT: Easements implied from depiction in a plat map are not extinguished either by the failure of a city to accept dedication of the easements or by the formal abandonment of such easements by a city following dedication.

Bubis v. Kassin, 733 A.2d 1232 ( N.J. App. 1999) , discussed further under the heading: "Easements; Extinguishment; Erosion."

Nineteenth century developers laid out a subdivsion showing roads running perpendicular to the beach and to a "beach easement" also created on the plat.

New owners of beachfront lots blocked the access from the mouth of the streets to the beach area. They claimed that the beach easement itself had been extinguished by the movement of the mean high tide line, and that part of a particular named street was also terminated because the municipality had vacated that portion of the street years earlier.

The court concluded (in a discussion analyzed in a separate entry in this report) that the beach easement was not extinguished. It noted the law in New Jersey that implied easements arose from the delineation of streets in a plat map. The scope of the easement is "one of intention. . . The determination of that intention is guided by the principle that a private right of way in a street is confined to such a use of the road or street as is necessary or useful for the beneficial enjoyment of the lot conveyed.'"

In New Jersey, a public easement can also arise by implied dedication, and the court noted that such dedication may have occurred here. But the subsequent abandonment of the public rights by the local public agency did nothing to disturb the parallel private rights in the inland lot owners.

Here, the court concluded that the original subdividers certainly intended that roads running perpendicular to the beach would be used by inland lot owners to access the beach and the easement in it. Consequently, there clearly was a private easement arising in these streets benefitting those owners, notwithstanding any dedication to the public.

Comment: There is great uncertainty in the common law as to the extent of the implication of easements in roads set forth on subdivision maps. Some jurisdictions recognize easements in all the roads, others only those areas of the roads necessary to reach a public right of way, and others look at the overall use and enjoyment of the benefitted lots as intended by the subdivider.

At one point, the court here states that "[i]n most circumstances, the only use of the streets shown on a map that is "necessary or useful for the beneficial enjoyment of the lot conveyed" [and therefore implicitly created by the plat] is "a right of way or access from or to some public highway."

But the court appears to acknowledge that in the appropriate case the rights implied can be considerably broader than simple access. Thus, the court appears to take the third approach described above, the "reasonable use approach."

But note also that the court describes the existence of an easement in all the roads, to be used in accordance with the subdivder's and original grantee's intent, so it would be difficult for a title analyzer ever to conclude that any of the roads was ever free of the implied easement.

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