>
>From: "Bill Hart" <BHart@tatitle.com>
>-
>It would probably be advisable to distinguish "implied easements"
>disclosed on platted subdivisions from those set forth on PUD's or PRD's
>
>William C. Hart
>Chief Underwriter, Emeritus
>T.A. Title Insurance Company
>2 Veterans Square
>Media, Pa. 19063
>Phone: 800.220.3901 ext 132
>Facsimile: 610.892.7588
>E-mail: whart@tatitle.com
>www.titlelawannotated.com
>Principal: Title Law Associates
>Editor: Title Management Today
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>-----Original Message-----
>From: DIRT - Real Estate Lawyers Listserv
>[mailto:DIRT@LISTSERV.UMKC.EDU] On Behalf Of Patrick Randolph
>Sent: Friday, February 10, 2006 2:55 PM
>To: DIRT@LISTSERV.UMKC.EDU
>Subject: [DIRT] DD 2/13/06 Implied from Plat Park Easements and
>"Analysis of True Intent"
>
>
>Daily Development for Monday, February 13, 2006
>by: Patrick A. Randolph, Jr.
>Elmer F. Pierson Professor of Law
>UMKC School of Law
>Of Counsel: Blackwell Sanders Peper Martin
>Kansas City, Missouri
>
>
>EASEMENTS; CREATION; IMPLICATION:    An implied easement must be
>affirmatively proven by evidence and the intent to create an easement
>may be interpreted from circumstances existing at the time deed was
>created or conveyed. 
>
>Reagan v. Brissey, 832 N.E.2d 659 (Mass. App. Ct. 2005). 
>
>Plaintiffs brought suit seeking determination that they held an implied
>easement to use four parcels of land as parks.  The parcels appeared as
>parks on an 1872 recorded subdivision map, and there was some evidence
>that local residents had used them as open space and recreational areas.
>They were undeveloped.   Subsequent deeds of lots on the plat did not
>reference them.  The Town of Oak Bluffs held tax title to the parcels,
>subject to the individual defendant's unforeclosed right of redemption
>
>The Land Court judge refused to recognize the easement.  In looking to
>the circumstances surrounding the sale of the parcels in the
>subdivision, the judge found nothing to show that to original subdivider
>had promoted the existence of parks as an amenity to the subdivision,
>that no person had ever assumed control over the parcels to provide for
>their maintenance and use as parks, and that there had been no
>substantial use of the parcels for recreational or park purposes. For
>these reasons, the judge concluded the plaintiffs had failed to carry
>their burden of showing that the disputed parcels were impressed with an
>easement.
>
>The Appeals Court noted that the Land Court judge had correctly
>determined that easement rights arose from the parties intention to
>create them, as evidenced by the language of the deed and surrounding
>circumstances.
>
>On appeal, plaintiffs contended that the judge erred in concluding that
>the plan showing the disputed parcels as parks was not used to promote
>the sale of the lots and that the conduct of the owners and residents
>failed to convey an understanding that the disputed parcels were subject
>to an implied easement. 
>
>Second, plaintiffs argued that the judge failed to recognize the
>developers general development scheme for the subdivision as a seaside
>recreational community. 
>
>The court responded that it was settled law in Massachusetts that when
>land is conveyed with reference to a plan an easement is created only if
>clearly intended by the parties.  When construing the language of a
>deed, a court may look to the circumstances surrounding the conveyance
>to determine the parties intent.  Additionally, it said,  when a park or
>open space designation is involved, evidence of intent may also be found
>in conditions existing when the deed was made. 
>
>Parties alleging an implied easement have the burden of proving one's
>existence.  The nature and design of a development can give rise to the
>inference of a reservation of open space, however, such an inference may
>be outweighed by the failure of the grantor to acknowledge through word
>or deed the existence of the easement.  Importantly, the court noted
>that subsequent use of the land sometimes may also be considered:
>
>
>"Where the intent is doubtful, the construction of the parties shown by
>the subsequent use of the land may be resorted to, if such use tends to
>explain or characterize the deed, or to show its practical construction
>by the parties, providing the acts relied upon are not so remote in time
>or so disconnected with the deed 'as to forbid the inference that they
>had relation to it as parts of the same transaction or were made in
>explanation or characterization of it.'
>
>The Appeals Court determined that the advertisement provided minimal
>weight to support the plaintiffs.  Furthermore, there was no evidence in
>the record to establish open and continuous use consistent with the
>implied easement claim.  The Court refused to infer specific easement
>rights from broadly written instruments purporting to transfer all
>property interests or from uncertainties in the chain of title.  Factors
>which signal intent can not be examined in isolation, but rather a
>consideration of all relevant evidence in light of the circumstances is
>required.  The absence of evidence in this case outweighed the evidence
>presented to show intent.  The plaintiffs failed to prove the existence
>of implied easements to use the land as parks.  Accordingly, the Land
>Court's ruling was affirmed.
>
>Comment: According to the succinct and wonderful treatise: The Law of
>Easements, by Bruce and Ely, an implied easement can arise from the
>setting forth of the easement on a subdivision plat even if the plat is
>never recorded.   There appears to be some disagreement as to the exact
>basis for this recognition.  Some view the setting forth of the easement
>on the plat as, in fact, the description of the easement in such a way
>as to constitute an outright grant.  Others treat it as an express
>grant, or base their finding of the easement on an estoppel theory. 
>
>But Bruce and Ely don't really talk much about easements by implication
>from plat other than easements for roads.  We've seen these broader
>implied easements - for lake access or recreation areas, before though.
>
>What's really unusual about the case is the focus on the post platting
>behavior of the parties.  Although there is some authority to the effect
>that if the developer later sells off the road before granting any of
>the lots, the road is not bound by the easement, the editor has seen
>very little authority basing a refusal to infer a dedication from the
>plat due to post platting conduct. 
>
>As the court notes, however, the plat is only evidence of intent, and if
>other evidence belies intent, even post platting evidence, its relevant.
>
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