My client is selling his property which shares a boundary with his mother. His mother accesses her property by an existing dirt road that is on his land. Before moving, he wants to leave his mother a means of ingress/egress via easment. This is the first easment survey I've performed so my question is: Do you set monumentation at the corners of the easment when they do not fall on the property boundary monuments?
Set enough monuments along the margins of the easement so the easement can be clearly identified to be used properly and to give notice that one exists.
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Easements do not have to be monumented, and in fact, I would guess based upon my experience that the vast majority of easements are not. The only time I set monuments for easements is when a client or statute/ordinance requires me to.
Technically speaking, fee simple ownership does not have to monumented, at least not at every single angle point, if the description is sufficient for qualified persons, i.e. licensed surveyors, to place/mark the lines on the ground. That is the critical requirement.
Your client's mother may already have an easement by prescription.
But if he wants to ensure the easement is clearly defined and endures, have him hire an attorney to draft an grant of easement document, then produce a description and exhibit to attach to it. Execute the document and file for record.
The problem with prescription or adverse possession would be the permission that might be assumed because of the family relationship.
The claimant must prove use of the servient [i.e. burdened estate of] land that is: (1) open and notorious; (2) over a uniform route; (3) continuous and uninterrupted for 10 years; (4) adverse to the owner of the land sought to be subjected; and (5) with the knowledge of such owner at a time when he was able in law to assert and enforce his rights. …
Under the doctrines of both prescriptive easements and adverse possession, a use is not adverse if it is permissive. Permission can be express or implied. A permissive use may be implied in ” ‘any situation where it is reasonable to infer that the use was permitted by neighborly sufferance or acquiescence[.]’ Kunkel v. Fisher, 196 Wn.App 599 (Div. I 2001)
I would assume that the child gave the mother permission. A written easement is necessary.
Out of curiosity, what state(s) would not recognize an express grant of easement in deed form?
If you're going to monument it maybe just have her kid quit claim her the strip of land instead.
Typically, I would not monument the easement.
