Surveying Easements

Andy Zoutewelle
June 5, 2008

An EASEMENT is a right of use over the property of another as defined in Black’s Law Dictionary. Easements can be for many specific purposes and can be created in a variety of ways, both written and unwritten. Some easements may benefit an adjoining property owner exclusively, and other easements may benefit a larger number of parties.
An easement is considered to be an interest in property ownership. One can think of property ownership as a bundle of sticks, where each stick represents a separate right enjoyed by the owner by virtue of owning the property. As a whole the bundle of sticks represents the general property held by the owner in fee. Each stick, however, represents a separate right for a specific purpose. Like a stick each right can be removed from the bundle of rights and sold or gifted or willed or mortgaged or disposed of in virtually any way that the general property can be. These individual rights can include the right of access through the property by another party for a driveway or for erecting and maintaining utilities, for example. Therefore, many of the individual sticks can be thought of as easements. Easements tend not to be personal in nature and are not as transitory as licenses. Therefore, easements are considered to be an interest in property ownership.
Being interests in real property, then, easements should be carefully defined, both in terms of the rights involved and in terms of the location of these rights. General easements are blanket in nature and affect the entire property. Specific easements are easements which can be located in a specific place within the property. Describing the location of specific easements should be done with care and should normally include a survey of the easement.
Is there a difference between an easement and a right-of-way? The definition of ‘right-of-way’ in Black’s Law Dictionary is a right belonging to a party to pass over land of another. Therefore, the term ‘right-of-way’ appears to be synonymous with ‘easement’. However, ‘right-of-way’ connotes the presence of a roadway or railroad. In addition, if the fee title to a public roadway becomes vested in the Department of Transportation or if the fee title to a railroad bed becomes vested in the railroad company, then that road or railroad is still called a ‘right-of-way’. These rights-of-way would not be considered to be an easement, because the DOT or railroad company would not be using the property of another.

Easement descriptions
Like all property descriptions easements can be described in one of four ways:

Description by metes and bounds: This description provides a detailed narrative of the location of the easement. Literally, metes and bounds refers to measurements and boundary constraints. Its description begins at a well-known ‘Point of Beginning’ and proceeds along the perimeter of the easement by giving directional and distance measurements as well as references to objects or survey markers or property lines or other constraints as appropriate. This perimeter description concludes by arriving back at the Point of Beginning. Concluding clauses frequently include an area calculation and the surveyor’s name and date of survey. Describing directional and distance measurements is a topic for another seminar, but please stop for questions at this point if you would like brief explanation of directions of the compass (e.g., North 32 degrees 45 minutes 12 seconds East) and units of distance (e.g., 300 feet or 32 poles or 14 chains). Please note that a modification of this type of description is to describe the centerline of the easement using the same narrative form of description along with a specification of the width of the easement (e.g., a 15-foot wide easement being 7.5-feet either side of the centerline, said centerline being described as follows…). Unfortunately, this type of description may lead to ambiguities of exactly where the edges of the easement are located on acute angles or at the terminus of the easement. Therefore, a perimeter metes and bounds description is preferable.
Description by route and offset: This description describes the limits of the easement area in terms of location based on a surveyed route centerline. For example, the North Carolina Department of Transportation or local municipality designs and surveys the proposed centerline of a new or relocated highway. This centerline is numbered with stations, which begin at the starting point of the DOT project (the origin) and proceed in an increasing sequence based on the distance from the origin. Typically stations are numbered at each 100-feet or 100-meters, depending on the original survey. For example, if Station 0 is the point of origin, then Station 5 would be located 500 feet from the origin as measured along the centerline of the route. In addition, any point along the centerline can be described based on distances between the even stations. For example, Station 5+32.03 would represent that point on the centerline of the route which is 532.03-feet from the origin in the above example (again, as measured along the centerline). As you can see, any point along the route has a unique coordinate based on distance from the origin. Moreover, any point not located on the centerline itself can also be described by providing an offset distance from the nearest point on the centerline as determined normal to the centerline (that is, perpendicular to the centerline). This offset distance needs to be designated as either LEFT or RIGHT of the centerline, as appropriate, based on direction of travel from the origin of the project. For example, one can describe a point as “located 30 feet Left of and normal to Station 52+83.69, Survey Line –L-“.
Description by reference: This description cites a separate recorded document which must be consulted in order to determine the location of the easement. This separate document could be either a deed or survey plat or other recorded document. This separate document should contain a detailed description of the easement, whether in graphic form (such as a survey drawing) or in the text of the document (such as a metes and bounds description). In addition, the description might specify a more restricted location within the property. For example, a description might call for “a utility easement along the rear 10-feet of Lot 10 Block 2 of the Stonehaven Subdivision.” In order to interpret this description the surveyor must obtain a copy of the subdivision plat in order to see where the rear line of Lot 10 is located, and thus where the 10-foot wide easement is located.
Description by recorded survey: The locations of easements are sometimes defined simply by recording a plat showing a graphic depiction of the easement area in the form of a survey map or a graphic sketch prepared by a non-surveyor. This type of description is distinguished from description by reference discussed above by reason of there being no overt reference to the survey or sketch in a written easement deed. This survey or sketch might simply be attached to the easement deed, or the survey might be recorded in the plat books of the Register of Deeds. Presumably if the declarant files a recorded survey plat, then the declarant would also record a corresponding easement deed in the Register of Deeds in order to define the terms and parties to the easement. However, many subdivision plats show easements required by the local planning authority as a condition of plat approval. These easements typically are not accompanied by a written easement agreement. One assumes that these platted easements are enforceable by the local municipality or county according to the current development standards for that jurisdiction. Therefore, the local authority should be contacted for information regarding the terms of these easements.

Locatable and unlocatable easements
One sees varying descriptions and varying documentation for easements on the public record. Most easements that include a copy of a survey or that reference a surveyed description can be easily located on the ground. However, many easement descriptions may not be so easy to locate.
Here’s an example: a utility easement that specifies a location “10-feet in width along the utility line as built in 1938.” Is this a specific or general easement? The location is defined within the property as being 5 feet each side of that particular utility line. Therefore, this is a specific easement, not general. Nevertheless, this description may not be sufficient to locate this easement on the ground. The surveyor would have to find that same utility line placed in 1938 in order to locate the easement.
Here’s another example: “A utility easement is reserved along rear and side lot lines of each lot in the subdivision.” Again, is this specific or general? The location is defined within the property as being in the vicinity of and along the rear and side lot lines. Therefore, this easement is specific. However, the precise limits of the easement are not locatable.
One more example is: “right-of-way for roadway purposes 30-feet each side of the road centerline as staked in the field.” This type of description is very common for N.C. Department of Transportation right-of-way descriptions. The problem today is that the original survey stakes that marked the alignment of the true easement were destroyed during construction of the road many years ago. Therefore, no surveyor can locate these stakes. However, N.C. Department of Transportation policy is that the road pavement, as built, is sufficient evidence of the location of these original stakes in order to enforce the easement. One should be alert to notice any apparent changes to the road pavement or road alignment which might have occurred after the original project was built. That is to say, the true easement is located based on the project built pursuant to the easement document. The road pavement may have been modified since the original project, but these changes would not trigger a change in the true easement location unless accompanied by a new easement.
Another example is road right-of-way width where no easement deed has been recorded. Many old public roads have no written easement. Therefore, the prescriptive right-of-way location is based upon use by the public and public maintenance activities over a long period of time. Apparently the practice of N.C. Department of Transportation and many municipalities is to claim right-of-way to the center of the ditch running along the shoulder of the road. This policy is apparently supported by court decisions. Obviously the center of the ditch forms an irregular line not necessarily parallel to the road centerline and not necessarily at a fixed even offset distance from the road centerline. Nevertheless, this type of right-of-way or easement is a specific easement and can be surveyed.