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Easement over and Easement

Discussion in 'Easements & Right of Way Law' started by Adverse, Dec 4, 2020.

  1. Adverse

    Adverse Law Topic Starter Member

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    Jurisdiction:
    Missouri
    I have a question that can easily be misunderstood, at least for google. ;)

    Can a County place an easement on a public County road, one that exists via right-of-way easement?

    Specifically, the USACE is requiring the County to grant an easement to the owners of a boat dock to access USACE property where the County road abuts that property, and where the entire public already has the right of access.

    This is new to the USACE as access has previously always had to be via private property.
     
    Last edited: Dec 4, 2020
  2. Zigner

    Zigner Well-Known Member

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    The reality is that your question is a complex and very fact-specific one. An internet forum is not going to be able to help. You should seek out the advice of a an attorney who specializes in land rights matters.
     
  3. Adverse

    Adverse Law Topic Starter Member

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    Any other opinions?

    ;)
     
    Last edited: Dec 4, 2020
  4. Zigner

    Zigner Well-Known Member

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    I feel safe in saying that there is no adviser here that would advise you not to see an attorney.
     
  5. Adverse

    Adverse Law Topic Starter Member

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    Adverse
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    Member Since: Aug 14, 2002

    I am familiar with that standard reply, but I still like to hear opinions, understanding their worth, or lack thereof.
     
  6. Tax Counsel

    Tax Counsel Well-Known Member

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    Could the county grant an easement to the boat owners to use the property that it owns so that they have access to another property? Without detailed facts all I can say is that I see no reason why the county could not do that. Obviously since is a public road the county would not grant an exclusive easement and potentially cut off public use of the road. However, while the nonexclusive easement probably could be done, given the facts you've provided I see absolutely no benefit to dock owners for access that they do not already have as they presumably have the right to use the road just like any other member of the public. Given that, and the fact that granting an easement may restrict what the county can do in the future, I see nothing that would be compelling as a reason for why the county should consider doing it.
     
  7. Adverse

    Adverse Law Topic Starter Member

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    That pretty much covers it. The specifics are that the USACE recently change their rules so that a boat dock is allowed to be placed where a public road abuts the GFTL, whereas previously access had to be via easement over private property.

    That change opened up the site directly below where the County road ends at the GFTL

    But, the USACE is asking the County to grant an easement, and parking, on the road, which is where 14 slipowners are already accessing the GFTL.

    The County is wrestling with that request, since the entire public is already doing that.
     
  8. zddoodah

    zddoodah Well-Known Member

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    Your description of what's going on here leaves something to be desired.

    Let's start with the boat dock. Since you referenced Missouri, I assume this dock is located on a lake or a river. You refer to "owners of [the] boat dock," which implies that these persons own the land on which the dock was built. However, maybe you weren't using the word "owners" in a legally precise way and actually meant that you have some sort of lease or other possessory interest. You say that the easement would allow the "owners" to access USACE property, but you didn't explain why the "owners" need or want to access the USACE property. Was it your intent to say that the dock is located on USACE property?

    See where I'm going?

    My best guess is that you meant that the dock is located on USACE property and that the "owners" have a lease with the USACE. In order to get to the dock from "the [c]ounty road" to the dock, one must cross over property owned by the county. Is that about right?

    Now let's look at your question:

    Here, you're saying that the "public [c]ounty road" "exists via right-of-way easement." What does that mean? It seems to imply that the road is located on property not owned by the county but over which the county has an easement for the purposes of maintaining the road. However, if that were the case, then it would seem inconsistent with my guess above.

    For the best shot at good answers, you should (1) clarify the situation, and (2) explain what your interest in the matter is.

    With all that said, in the abstract, a county can grant (not "place") an easement over property that it owns.

    By the way, using acronyms that aren't part of everyone's everyday vocabulary without explaining what those acronyms stand for isn't generally a good idea. I googled USACE and assume you're referring to the United States Army Corps of Engineers, but I didn't google the other acronym used in your post #7 and haven't the slightest idea what it might mean.
     
  9. Adverse

    Adverse Law Topic Starter Member

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    (Expand the quote to see all my reply)

    Our involvement is that we wish to place a boat dock at the one site that is closest to where our County Road abuts the GFTL. We are right across the road from that, less than 200 feet away. The Counselor for the County, and the Commission, are trying to figure out how to accommodate the "Corps", granting something to someone specific that the entire public has the right to do, and is already doing.

    So, the issue is that we may be deprived of something we have the right to because the "Corps" requires something the County may not be able to grant. The Commission is mulling it over.

    It is just one of those things where the "Corps" did not coordinate changes in their policies with other government agencies required to enact those changes.
     
  10. zddoodah

    zddoodah Well-Known Member

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    You didn't really answer this, which I asked previously:

    "Here, you're saying that the 'public [c]ounty road' 'exists via right-of-way easement.' What does that mean? It seems to imply that the road is located on property not owned by the county but over which the county has an easement for the purposes of maintaining the road. However, if that were the case, then it would seem inconsistent with my guess above."

    Instead of answering the question or confirming the implication, you asked me a question about roads where I am and provided some information about the building of subdivisions in your area, all of which is utterly irrelevant to the question you asked.

    Also, in a rather indignant manner, you claimed to be using "owner" in a precise way but proceeded to provide an explanation that seemed to confirm the existence of a lease or other possessory interest, which is not ownership in any "legally precise" way.

    All that said, only the county can tell you for sure if it will do something, and you'd need a Missouri land use attorney to advise you whether it's legally permissible for the county to do it.
     
  11. Adverse

    Adverse Law Topic Starter Member

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    Then I will quit trying here.

    What I am saying and how I am saying it is totally understandable to anyone in a similar situation, a boat dock or slip owner on a USACE waterway. Maybe someone like that will see this thread via a google search.

    But, yes, our roads are located on property that the County does not (or did not) own, but which they have assumed maintenance, and right-of-ways define the road footprints. The County Road and Bridge Commission has a process whereby they "adopt" roads. I cannot tell you if the County assumes ownership when they "adopt" a road. I was the one who made the presentation to the County on April 1, 2004, and I worked for 17 months to upgrade our "private" road before the County took it over and paved it in June, 2005. We were the last one they adopted with less than 50-foot right-of-ways, and that was only because one Commissioner had not signed that new policy yet.

    There are hundreds of roads around our lake that the County does not maintain, and very few of them "abut" the Government Fee Take Line, so named because of the fee simple process whereby the Government acquired the property establishing the lake boundary.

    All that really matters is that I am working with the USACE and the County to effect a proper outcome.

    I do not believe understanding all of this is necessary to opine whether a County can or should be required to grant an easement or some other form of permission to a specific individual to do something that the entire public already has the right to do.
     
  12. Adverse

    Adverse Law Topic Starter Member

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    I sense that you are close to what I am trying to say, that it seems improper for the USACE to require any sort of permission from the County in order for anyone to do what they already have the right to do, or to deny someone the right to do what they already have the right to do because the County may not grant the permission the USACE requires.

    It seems like a poorly thought out new policy by the USACE, one in which they did not consult with the other government agencies involved. But, residents on USACE lakes are accustomed to that.
     
  13. Zigner

    Zigner Well-Known Member

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    Your situation is relatively unique. It is really beyond all but very general information when using an internet forum. Speak to an attorney (as advised by an attorney here already).
     
  14. Adverse

    Adverse Law Topic Starter Member

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    Yes it is relatively unique, and I tried my best to restrict to what I am trying to find out . . . . if it proper to ask a County to grant an easement for something the public already has the right to do.

    I'll find out before too long.
     
  15. Zigner

    Zigner Well-Known Member

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    There is absolutely no restriction on asking...
     
  16. Tax Counsel

    Tax Counsel Well-Known Member

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    It may be pointless for them to require it, but it is probably not improper.
     
  17. welkin

    welkin Active Member

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    All local and county roads start off being a Right-of-Way (ROW). Most states have statutes that require a jurisdiction to accept a dedication of a road for public use. Missouri however does not. The road can become a publicly owned road by use.

    228.190. Roads legally established, when — deemed abandoned, when — roads deemed public county roads, when. —

    1. All roads in this state that have been established by any order of the county commission, and have been used as public highways for a period of ten years or more, shall be deemed legally established public roads; and all roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads; and nonuse by the public for five years continuously of any public road shall be deemed an abandonment and vacation of the same.

      2. From and after January 1, 1990, any road in any county that has been identified as a county road for which the county receives allocations of county aid road trust funds from or through the department of transportation for a period of at least five years shall be conclusively deemed to be a public county road without further proof of the status of the road as a public road. No such public road shall be abandoned or vacated except through the actions of the county commission declaring such road vacated after public hearing, or through the process set out in section
    228.110.

      3. In any litigation where the subject of a public road is at issue under this section, an exact location of the road is not required to be proven. Once the public road is determined to exist, the judge may order a survey to be conducted to determine the exact location of the public road and charge the costs of the survey to the party who asserted that the public road exists.


    So if the county road has been used by the public for 10 years or more it is owned by the county and is no longer an ROW on someone else's land.

    What regulation is the Army Corp citing that would require an easement?

     

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