Daily Development for Friday, March 24 , 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

EASEMENTS; TERMINATION; ABANDONMENT: Despite long period of nonuse, County did not implicitly abandon peripheral unimproved portion of the right of way over landowner's property, retaining only traveled portion, where county had not voluntarily relinquished its interest in the unused portion of easement, nor clearly shown an intent to abandon all of easement's purposes.

Allamakee County v. Collins Trust, 599 N.W.2d 448 (Iowa App. 1999).

At the time the road was established, the width of the right of way for county roads was designated by statute to be sixty-six feet. The width of the actual road passing through the landowner's property here was approximately twelve feet. The dirt road had been maintained by the County over the years at a low level with much of the land on the sides of the road being generally overgrown. The County has occasionally removed some downed trees and installed some drainage culverts, but the road was not plowed in the winter.

Landowner claimed the county abandoned the nonroadway portions of the right of way to the county road passing. The landowner constructed a fence and planted trees in a portion of the right of way next to the road. The County removed the fence and subsequently filed a petition in equity asking the district court to declare the width of its easement.

Following a trial, the district court determined the County abandoned all but the traveled portion of its easement, but found the right of way should be twenty-two feet to comply with the minimum width requirements for county roads under the current Iowa Code. In reaching this conclusion, the trial court noted it would be physically impossible for the County to maintain a sixty-six foot roadway over portions of the landowner's property. It also found the County only used the twelve- foot traveled portion of the road, and presented no evidence it planned to increase the maintained portion of the road in the future. Additionally, it found Landowner wanted to seed the area in dispute with high quality timber and the public interest would be served by making the land productive.

The County appealed and argued that the road has been used by the public and maintained by the County for as long as witnesses could recall, and there was no evidence that it intended to abandon any portion of the right of way.

The Court of Appeals acknowledged that there were a number of cases holding that rights of ways and easements could be abandoned; however, it noted that there is a presumption that once a highway is shown to exist, it continues to exist, and any abandonment must be proven by clear and satisfactory evidence that an owner no longer desires to possess the property. The Court of Appeals cited case law establishing that in order to prove abandonment, actual acts of relinquishment accompanied by an intention to abandon must be shown. Nonuse is not enough to establish abandonment, unless coupled with affirmative evidence of a clear determination to abandon. Obstructions, encroachments, or the failure to keep a road in repair do not necessarily result in abandonment.

In this case, in any event, there was no claim the traveled portion of the road was not used. The Court of Appeals noted that a majority of courts have held abandonment will not be implied from the mere nonuse of a portion of the width of the road; moreover, the Court of Appeals itself had previously held that the continued use of a roadway rebuts any suggestion of abandonment, and even though the entire width of the right of way may not have been appropriated for use as a roadway, this merely indicated that all was not immediately necessary to meet the demands of the traveling public.

The Court of Appeals found no affirmative evidence of intent to abandon the easement running along the outside of the traveled portion of the road. The width of the right of way in excess of the road itself permits expansion of the road in the future if the need arises. Until the County has voluntarily relinquished its interest in the unused portion of the easement and clearly shown as intent to abandon all of its purposes, no abandonment can exist.

The Court of Appeals recognized the Landowner desired to make the land productive. However, the court reiterated that abandonment develops because the owner no longer desires to possess the property, and does not depend upon any superior claim or interest in the land. Although the principles of abandonment enable property to be utilized and become productive, the holder of the easement must first voluntarily relinquish all right and interest with an intent to terminate ownership before that purpose can be served. It is the actions and intent of the holder of the easement, not the claimant, that determines whether abandonment has occurred.

Comment 1: This case is consistent with the general line of authority. The servient owner might have argued that since the County had adopted a policy restricting county roads to a width of less than the total width of the right of way here, it had a right to make use of the balance of the servient area until such time as the County had need for it. But it questionable whether even under these circumstances a court would conclude that the servient tenant could actually fence off a portion of the right of way area.

Comment 2: In any event, it does seem that the servient tenant argued for too much. If it were possible for an easement owner who is actively using the easement to lose a portion of the area simply because it has not yet put that area to use, it would be impossible to provide for development, expansion, maintenance needs, or other appropriate concerns. Further, easement owners might be compelled to put easements to broader use just to preserve future rights, which would be economically wasteful. We have seen a similar situation develop with regard to appropriated water rights, where failure to put the water to a beneficial use can result in loss of the future use of the water. This leads permit holder to make inefficient or even wasteful uses of water to insure that they do not lose their claim.

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