wmartin@brl-tgr.ARPA (Will Martin ) (11/05/85)
I recall reading references to "easements" in the past -- as far as I recall, they involve rights of people to continue doing things as they have been done in the past, despite the contrary wishes of new property owners, specifically with regard to rights-of-way. Does the general public have easement rights, or do they only apply to specific individuals? I'd appreciate seeing comments from net people about easements in general, and also if the concept applies in this case: There is an office building across the street from the building in which I work. This other building has a parking area built-into the ground floor, which provided a covered pathway for pedestrians to get into an adjoining parking garage building and also to cut through to the next street, thereby saving steps and allowing one to get out of inclement weather for a block. This area was also used by automobiles going into or leaving the parking garage, though that also has two other exits. This building was either bought by a new owner, or is being renovated by the present owner (not sure which); in any case, the area through which pedestrians could walk was blocked at times during the construction work, but this blockage was always removed and the path opened up after the particular construction/demolition need that caused it to be blocked was over with. However, just in the past few days, a permanent-appearing fence has been installed which blocks the pedestrian access and cuts off the walkway. Pedestrians have been using this walkway for as long as I have been working here, and therefore for some time before that. I have been working in this building since 1973, so there has been at least a decade of pedestrians having free access to walk through this area. There has never been any question that this is private property (there were signs up about the parking area being restricted to the tenants of the building), but there also was never any restraint or restriction on the public walking through this route. Does this history of free public access give an easement and restrain the owners from blocking the route? Or does it give grounds for a civil suit or a court injunction to prohibit the owners from restricting public access now and in the future? I would appreciate any discusion or explanatory comments on this general area and this specific instance. (What happens to an easement of right-of-way if the property is changed so that continued access is impossible? Say, instead of just putting up a fence by an area which continues to be used for parking, the whole building was torn down and a new building constructed which closed off the route entirely? Or would the easement prevent the legal construction of the new building at all in that case?) Thanks for comments and advice! Will Martin UUCP/USENET: seismo!brl-bmd!wmartin or ARPA/MILNET: wmartin@almsa-1.ARPA
bl@hplabsb.UUCP (11/07/85)
> ... However, just in the past few days, a permanent-appearing > fence has been installed which blocks the pedestrian access and cuts off > the walkway. Theory: Someone got assaulted while trespassing through the walkway. A greedy lawyer sued the building's owner for not providing adequate security. Now the walkway is blocked off.
franka@mmintl.UUCP (Frank Adams) (11/08/85)
[Not food] I would suggest that before any legal action be taken in a case like this, the owners of the property should be consulted first and asked to restore the access. There is too much of this "sue first and ask questions later" attitude. Frank Adams ihpn4!philabs!pwa-b!mmintl!franka Multimate International 52 Oakland Ave North E. Hartford, CT 06108
doc@cxsea.UUCP (Documentation ) (11/08/85)
> I recall reading references to "easements" in the past -- as far as I > recall, they involve rights of people to continue doing things as they > have been done in the past, despite the contrary wishes of new property > owners, specifically with regard to rights-of-way. Does the general > public have easement rights, or do they only apply to specific > individuals? I'd appreciate seeing comments from net people about easements > in general, and also if the concept applies in this case: > > There is an office building across the street... I don't think you have an easement here. To begin with, an easement exists only where it is specifically granted (where the "burdened" property owner specifically grants an easement across his land to the owner of the "benefitted" property), or implied by prior ownership (where the burdened property was owned by the benefitted property owner, then sold off, with an easement reserved to cross the burdened property). In this case, it does not appear that either situation is the case. If your building's owner used to own the buiding across the street, and tenants of your building were accustomed to crossing the other property (with or without the building on it), to the point that doing so amounted to a genuine benefit to the owner of your building, then you would arguably have an implied easement. A lot of big "ifs" in this. The other possibility is that the owner of the building across the street at one time granted an expressed easement to the owner of your building. This seems improbable. As a rule of thumb, a property owner has the right to fence his property against trespass at any time, which seems to be the situation here. Put yourself in their shoes: if children regularly cross your backyard on the way to school, to the point where they've cut a trail in your lawn worthy of a national park trail, and used it openly for 20 years when the previous owner lived there, should this prevent you as a new owner from fencing the back yard? Of course not. So it looks like you have to walk in the rain now and then. This is sometimes called a "wrong without a remedy", or, to use the latin, "damnum absque injuria" (to which many people respond "Damn 'em, let's sue 'em anyway!"). The modern rule simply recognizes, as my Torts professor used to say, "Into each life a little rain must fall (;-). Any other slime-balls...er..lawyers out there willing to comment on this one? Joel Gilman @Motorola/Computer X, Inc. Seattle
megjpm@mb2c.UUCP (Jon Macks) (11/11/85)
> I recall reading references to "easements" in the past -- as far as I > recall, they involve rights of people to continue doing things as they > have been done in the past, despite the contrary wishes of new property > owners, specifically with regard to rights-of-way. Does the general > public have easement rights, or do they only apply to specific > individuals? I'd appreciate seeing comments from net people about easements > in general, and also if the concept applies in this case: > > There is an office building across the street from the building in which > I work. This other building has a parking area built-into the ground > floor, which provided a covered pathway for pedestrians to get into an > adjoining parking garage building and also to cut through to the next > street, thereby saving steps and allowing one to get out of inclement > weather for a block. This area was also used by automobiles going into > or leaving the parking garage, though that also has two other exits. > > This building was either bought by a new owner, or is being renovated by > the present owner (not sure which); in any case, the area through which > pedestrians could walk was blocked at times during the construction > work, but this blockage was always removed and the path opened up after > the particular construction/demolition need that caused it to be blocked > was over with. However, just in the past few days, a permanent-appearing > fence has been installed which blocks the pedestrian access and cuts off > the walkway. > > Pedestrians have been using this walkway for as long as I have been > working here, and therefore for some time before that. I have been > working in this building since 1973, so there has been at least a decade > of pedestrians having free access to walk through this area. There has > never been any question that this is private property (there were signs > up about the parking area being restricted to the tenants of the > building), but there also was never any restraint or restriction on the > public walking through this route. > > Does this history of free public access give an easement and restrain > the owners from blocking the route? Or does it give grounds for a civil > suit or a court injunction to prohibit the owners from restricting > public access now and in the future? I would appreciate any discusion > or explanatory comments on this general area and this specific instance. > > (What happens to an easement of right-of-way if the property is changed > so that continued access is impossible? Say, instead of just putting up > a fence by an area which continues to be used for parking, the whole > building was torn down and a new building constructed which closed off > the route entirely? Or would the easement prevent the legal > construction of the new building at all in that case?) > > Thanks for comments and advice! > > Will Martin > > UUCP/USENET: seismo!brl-bmd!wmartin or ARPA/MILNET: wmartin@almsa-1.ARPA In my opinion, the public use of this passage-way did not give rise to any kind of public rights to a permanent easement through the building. Easements can be acquired by continued use, but the character of the use has to meet certain special requirements. An easement acquired in this manner is called a "pre- scriptive easement", and is similar in concept to property acquired by adverse possession. In order to ripen into a prescriptive easement, the property has to be used as a right of way for the statutory period, usually somewhere around 15 years. The use has to be open, notorious, and hostile to the rights of the owner of the property. In the example you describe, it does not sound as if the use of the path through the building was hostile. In fact, it would appear the owner has allowed it for years as a permissive use. I'm sure that many stores with multiple entrys have some pass through traffic, and I have never heard of a case giving the public a permanent right of way through the store. This does raise an interesting issue for cities such as Minneapolis, which has an extensive system of skyways between buildings which are open to the public. Since many businesses are dependent upon the traffic generated by these sky- ways, the result could be different in that situation. I think the city of Minneapolis has passed special laws dealing with the establishment of the sky- ways in that city There is an interesting Michigan case where two adjacent buildings used a com- mon stairwell, which was located entirely on the premises of one of the build- ings. When the owner of the building with the stairwell in it wanted to tear it down, the other building's owner brought suit to require that the stairwell be maintained. The court held that the building without the stairwell had acquired a prescriptive easement to maintain the stairwell, even though this meant the easement was difined as a space existing in mid-air (apparently, the stairwell did not extend all the way down to the ground floor). Getting back to your example, I doubt that any court would make the owner of the building keep this path-way open to the public. This opinion comes from my many years of experience as an attorney for a major utility whose specialty just happens to be right of way matters. And let me tell you, this is a pretty narrow area of the law that not many lawyers are familiar with. Just another Slime Ball Lawyer
wmartin@brl-tgr.ARPA (Will Martin ) (11/12/85)
In article <780@mmintl.UUCP> franka@mmintl.UUCP (Frank Adams) writes: >I would suggest that before any legal action be taken in a case like this, >the owners of the property should be consulted first and asked to restore >the access. There is too much of this "sue first and ask questions later" >attitude. >Frank Adams ihpn4!philabs!pwa-b!mmintl!franka Of course. But the net request was to solicit information to find out if there was any grounds for even requesting such restoration. That is, if the history of public access DID create some "rights" or had some effect. Then, the first step would be a letter to the property owner, requesting the access be maintained, and mentioning (in a non-threatening way) that preliminary legal advice leads the writer to believe that there would be a matter of "easements" involved. Since the owner would be referring such a missive to his lawyers, the writer should know just what he is talking about, and use the proper jargon. More info -- things may well be better than it first appeared. What seemed to be a "fence" upon observation from a distance away, with the view partially blocked by cars, turned out to be a gate. This gate has been kept open during working hours since that one day it was seen closed. So the access may only be restrained during off-hours. Since I am not likely to be here then, or going through that way during such times, I probably will not continue to pursue this matter. However, I would still like to know more about "easements" in general and how they would apply in this sort of situation. Will Martin UUCP/USENET: seismo!brl-bmd!wmartin or ARPA/MILNET: wmartin@almsa-1.ARPA
spp@oz.BERKELEY.EDU (Steve Pope) (11/14/85)
Actually it is possible that an easement is created if a specific use has been made of the land for a statutory length of time. I think it's called an "easement by appurtenant" or something like that. As I understand it though, such an easement is never acquired by the general public, only by a specific property owner, and that owner retains it only until he dies or sells the property. steve
spp@oz.BERKELEY.EDU (Steve Pope) (11/15/85)
Oops, my last posting was in error! An "easement appurtenant"
is one which goes along with ownership of a property, as opposed
to one which is not related to any property ownership. Has
nothing to due with whether the easement was granted or obtained
by prescription.
Soory for any confusion.
steveharal@ttidcb.UUCP (Haral Tsitsivas) (11/24/85)
In article <10971@ucbvax.BERKELEY.EDU> spp@oz.UUCP (Steve Pope) writes: > >Actually it is possible that an easement is created if a >specific use has been made of the land for a statutory >length of time. I think it's called an "easement by >appurtenant" or something like that. > >As I understand it though, such an easement is never acquired >by the general public, only by a specific property owner, >and that owner retains it only until he dies or sells the >property. > >steve Actually, an easement is defined as the limited right to make use of the land of another in a specific manner, created by the acts of the parties or by operation of law, and having all the attributes of an estate in the land itself. The rights and duties created by appurtenant easements pertain to the land itself and not the particular individuals who may have created them. Gross easements are personal or specific to the individual who received the right and do not depend upon the ownership of the land and amount to little more than an irrevocable personal right to use. In short, appurtenant easements are transferrable according to ownership of the land where gross easements are not transferrable. In addition, easements may be created by: 1) express grant or reservation, 2) implied grant or reservation, 3) necessity, 4) dedication, and 5) prescription (use of land owned by another that is a: adverse to the rightful owner's use, b: that is open and notorious, and 3: that is continuous and uninterrupted for a specific period of time). --Haral Tsitsivas ...{randvax, philabs, vortex, trwrb}!ttidca!haral