The Easement That Describes Two Different Strips
Jackson County. A 1979 deed grants "a 20-foot easement for ingress and egress across the north 20 feet of the South Half of the Southwest Quarter of Section 8, T39S, R1W." The quarter-section lines are not monumented in the deed and the section subdivision was never surveyed. A 1985 survey located the easement as "20 feet wide, centered on the existing gravel driveway," which runs diagonally and today lies about 180 feet south of the section subdivision line at its west end. A 2004 survey placed the easement on the literal north 20 feet of the S½ SW¼, a strip crossing a plowed field. The servient owner has since planted a Christmas-tree plantation across the literal strip but has never obstructed the gravel drive. The dominant parcel's owners have used the gravel drive continuously since 1979. Your client is buying the dominant parcel and asks what you will show.
1. What are the competing rules of construction, and which is likely to control?
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Four rules are in play, and they pull in different directions.
Plain language. The grant describes a specific strip - the north 20 feet of a named half-quarter. Courts start with the words.
Monuments over courses and distances. A call to a monument or a survey line controls over computed distances. But there is no monument here; the "north 20 feet" is a computed line off an unsurveyed section subdivision, which weakens it as a monument call of any precision.
Practical location. Where the parties, soon after the grant, selected and improved a route and both treated it as the easement for decades, that location can fix an otherwise indefinite easement. The 1985 survey memorializes a location the parties were already using, and the servient owner's tree planting shows where they did not think the easement was.
Extrinsic evidence of intent. Where a description cannot be located with certainty, the conduct of the parties is admissible to show what they meant.
Practical location is the strongest of these on these facts, but the literal description is not extinguished - which is precisely why the title company will want the ambiguity surfaced rather than papered over.
2. What evidence would support practical location or a prescriptive easement?
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Practical location and prescription rest on use, so gather use evidence systematically:
- Continuity and duration: continuous use since 1979, documented by aerial photography across decades, tax records, utility bills, and affidavits from the owners and neighbors.
- Character of use: gravel placement and re-graveling, culvert installation and cleaning, a gate, a driveway apron at the road, snow removal - and who paid for each. Improvements by the dominant owner that the servient owner watched without objecting are strong.
- Knowledge and acquiescence: the servient owner's awareness of the drive, and the absence of any objection, permission letter, or gate across it.
- Exclusivity and adversity: whether the servient owner also used the drive, and whether any use was by permission (permission defeats prescription).
- Respect for the route: the tree plantation stopping at the drive edge, mowing patterns, and fencing all show what the servient owner believed.
- Necessity: whether the drive is the only reasonable access.
A prescriptive easement is a legal conclusion; your job is to assemble and depict the facts, not to certify the right.
3. How do you depict the easement, and what do you advise the client and the title company?
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Show both, clearly distinguished, and let no reader assume you chose one silently.
- The record strip - the north 20 feet of the S½ SW¼ - located from the best available section subdivision evidence, labeled "easement as described of record."
- The drive-centered strip, labeled "20-foot strip centered on existing gravel drive; location depicted per 1985 survey and continued use since 1979."
- A note stating that the two do not coincide, that the record description is ambiguous as to the unsurveyed section subdivision, and that the location of the easement is unresolved.
Advise the client before closing. He is buying a parcel whose only access may be an easement that a court could locate on a plowed field rather than the drive. Recommend he require, as a condition of purchase, a confirmatory easement or quitclaim from the servient owner locating the easement on the drive, reviewed by counsel. Tell the title company explicitly what you found and that you cannot certify the easement's location - title companies insure what is described, and they need to know the description does not close.
If the parties negotiate a resolution, you can prepare the exhibit and legal description for the agreed line once counsel directs it.