Express easements and language in plats

March 12, 2007 | Roger McEowen

 

It is not possible to grant an easement just by word of mouth - it must be in writing. That’s because an easement is an interest in real estate and must be in writing to be enforceable. The only exceptions to this rule are when an easement is implied law (known as an easement by necessity) to allow access to a landlocked parcel, or is created by one landowner acquiescing to another party using their property for at least 10 years without stopping them (known as a prescriptive easement). But, for a plat to create an express easement, the language must clearly evidence an intent to create an easement. Two recent cases illustrate this. In the first case, an access easement was created by deed with reference to the language on the recorded plats. The court held that language on the plats was unambiguous that an access easement existed. Newport v. Dulin, No. 6-669/05-1233, 2006 Iowa App. LEXIS 1806 (Iowa Ct. App. Nov. 30, 2006).   

In the second case, the parties owned adjoining lots. The lots were platted in 1996 and 2000. For the lot that was platted in 1996, a 50-foot easement was sketched across the northern part of the lot. Other than the sketch, the only reference on the plat to the easement were the words “ingress and egress.”  There was no other writing concerning the easement, no evidence of an easement by prescription and no claim of a presumptive easement. There was also no evidence of any attempt to use the easement until 2003 (seven years after platting) when the defendant constructed a driveway on the 50-foot strip. Before that time, the defendants accessed their lot via a gravel lane that didn’t interfere with the other lots. The plaintiff sued for trespass, and the defendants claimed the existence of an easement. The trial court ruled for the defendants, but the appellate court reversed. The language in the plat was not specific enough to create an express easement. As such, the case was sent back to the trial court to address the plaintiff’s trespass action. Gray v. Osborn, No. 6-436/05-1850, 2007 Iowa App. LEXIS 10 (Iowa Ct. App. Jan. 18, 2007).