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  1. #11
    Join Date
    Nov 2013
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    Default Re: Utility Easement

    Quote Quoting Samh1978
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    Everyone involved seems to think the opposite of the old plat survey. People are seeming to say that once the new surveys done, that's the law and the end of the story. I'm just not really understanding how they didn't find the plat survey when they did the new Ulta survey so that the utility easement would be recorded on the Alta survey. You would assume that would be important in that wouldn't be left out.

    The right of way is separate from the easement, I'm not sure if I made that totally clear in my original post. The easement enters the property we are looking to buy on the southwest corner and runs along the entire Southern property. The right of way enters the property that we are looking to purchase in the northeast corner. The right of way was noted as abandoned because it hasn't been used in decades and even though there is essentially a dirt road there, there are trees growing in the middle of it and such and it has been illegally fenced off at the main county road that it used to intersect. If we end up with this property, we would really like to use the right-of-way as an entrance to the property as it's a direct shot off of the main road. The easement is it the end of a longer private Road that's off of the main road. I'm not sure the definitions of dominant or servient in this circumstance, But the right of way is on someone else's property as an access road to the property that we were looking to buy.
    In easement law the servient estate is the estate on which the easement is (the land upon which the easement is). The easement creates a servitude upon the land. The dominant estate is the estate which is served by the easement and has a non-possessory right to use the land of another.

    The right of way was noted as abandoned because it hasn't been used in decades and even though there is essentially a dirt road there, there are trees growing in the middle of it and such and it has been illegally fenced off at the main county road that it used to intersect.
    Easements that are appurtenant to the land (they run with the land not the owner) do not get abandoned by non use. The dominant estate would have to take some action to signal abandonment such as put a building up to block the easement. And then it is up to a court to determine if the intent was to abandon the easement. Simply putting a fence at it entrance is not sufficient to say the easement was abandoned. Who determined that the ROW was abandoned? Only a court could determine that or an agreement between the servient and dominant estates and in most states that agreement would have to have been recorded.

    Everyone involved seems to think the opposite of the old plat survey. People are seeming to say that once the new surveys done, that's the law and the end of the story. I'm just not really understanding how they didn't find the plat survey when they did the new Ulta survey so that the utility easement would be recorded on the Alta survey. You would assume that would be important in that wouldn't be left out.
    I don't know who everyone is in the quote but they are incorrect. A new survey does not supersede what has already been established in the past (even hundreds of years ago). A sloppy surveyor may not have searched recorded plats and instead worked off of recorded deeds that didn't mention the easement. Happens more than you know.

    I will again suggest that you find an attorney that practices easement law and have them review whatever documentation you have. You can also do some research on Google Scholar and read many cases where the courts have ruled that a recorded subdivision plat establishes easements. Go to Google Scholar and select NM courts and search for easement by plat. Then look for cases that address easement abandonment.



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