Easement Situation with the Forest Service

[Jack Tanner]

I have property in Nevada. It's an "inholding" located inside national forest lands. There exists a road that begins on public land, continues onto my land, and then exits my land further down. The Forest Service grants me a non-exclusive easement for the use of the portions of the road they own in order to access my property, in exchange for me granting them a reciprocal right of way (spelled out under a separate easement agreement). The forest service reserved the right, in their easement to me, "the exclusive right to extend rights and privileges for the use of their road (and my right of way on their road) to other agencies, as well as the general public."

In the separate easement agreement, which is clearly spelled out as an EXCLUSIVE easement for right of way, I am the Grantor, and the Forest Service is the Grantee. There is no language that suggests I am giving the Forest Service the right to assign their rights to the general public.

Here's the problem ... the Forest Service is claiming the non-exclusive easement they grant me across their lands allows them to give access to my property to the general public, by nature of the "extension language" contained in it. I read their "extension language" to mean that they reserve the right to give other parties access to their lands, not mine!

I do not dispute that the Forest Service has access to my property under my easement to them, in order to conduct their mission of forest management behind, around, and beyond my property. What I dispute is their position that they can deem the entire road "public" by nature of their reserved right in the easement they grant to me!

I have nothing in principle against hikers and bikers, but by opening this can of worms, we get motor vehicles, litter-bugs, graffiti artists, and sign-shooters, onto our land. Accordingly, I want to take a strong position against the Forest Service. I plan on retaining an attorney, but I'd like to first know where I stand with respect to the above analysis.

 

[154NH773]

While you may be technically correct in your interpretation of the two easement grants, you never know what a court might decide.

It is possible that since you have no language in your grant specifically prohibiting the Forest Service from using your property for expanded purposes, a court might consider that you mutually exchanged easements, and you thereby accepted the conditions in the Forest Service's grant to you, even though that language is not included in your grant to them. Courts often look at the lack of specific prohibitions as implying acquesence or allowance of certain rights.

The other thing not in your favor is that you gave the Forest Service an EXCLUSIVE easement, which may mean that YOU have no rights on that property, and any expansion allowed by the Forest Service does not increase the burden on you or your property. Since the Forest Service is a public entity, it probably has the ability to extend its' rights to the general public.

I think you may lose any litigation on this; Sorry.

 

[Jack Tanner]

Interesting comments, and thank you for the time. Two follow on questions:

1) I read online that an exclusive easement specifies parties who have benefit of that easement, and the grantor (me in this case) retains all other private property rights. It restricts me from giving the easement that I gave to the National Forest, to another person. But I retain private property rights, correct?

2) The language in each easement, as well as the rights conveyed, are very different. In other words, the documents are not meant to convey the same things (for example, one is exclusive, one is non-exclusive). One has certain conditions, the other does not. I maintain by law, all liability on the road in question, all maintenance costs, etc.

Thoughts? I am keeping this simple, but it was not me, but a previous property owner, that entered into this arrangement. But that doesn't matter. I know it "goes with the land."

 

[154NH773]

1) I read online that an exclusive easement specifies parties who have benefit of that easement, and the grantor (me in this case) retains all other private property rights. It restricts me from giving the easement that I gave to the National Forest, to another person. But I retain private property rights, correct?

That may not be true. You would have to research specific State decisions on exclusive easements, but here is a sample of one State's ruling on the issue that doesn't seem to support your interpretation. It also may depend on the EXACT and TOTAL wording of your grant.

http://blog.aklandlaw.com/2008/12/articles/easements-1/keep-your-hooves-off-my-easement-exclusive-easement-prevents-servient-landowner-from-using-driveway/


"The appellate court effectively reversed the trial ruling, holding that any use of the surface easement area by McCormick was inconsistent with the exclusive use granted to the Grays. McCormick, albeit record owner of the property, cannot now walk, ride, or access the side of the property that holds the easement. While they pay mortgage, taxes, and insurance on the property, they have no right of use whatsoever. McCormick may not have been aware that they were buying such an impaired property, but the court did not consider any hardship to McCormick its resolution of the case would create. This case underlies the importance of determining the existence and effects of all encroachments and restrictions that exist on real property before deciding to purchase, or at least attempting to predict their effects."

 

[Jack Tanner]

The forest service changed their tune, but the situation is not improved. Recognizing they had the wrong easement, they focused on the right easement, and found their right to extend access to the public through another door. Here is the exact relevant language of the easement:

Grantors (us) for and in consideration of a reciprocal right of way received by Grantors, do hereby grant to Grantee and its assigns an exclusive easement for a road over and across the following described lands ...

The Grantors hereby coenant that their heirs, executors, administrators and assigns shall warrant and forever defend unto the Grantee (the Forest Service) THE QUIET AND PEACEABLE USE AND ENJOYMENT OF THE HEREIN GRANTED EASEMENT.​

They claim that "quiet and peaceable use and enjoyment" includes the right to give access to the public. I asked the representative if she was saying they can give 280 million people (whatever the population of the US is) the right to access their easement? She said, in a word, "yes." The woman was not an attorney, and I would really love to know where I stand before I start spending more money on attorneys. Thoughts?

 

[154NH773]

I gave you my two cents. I think you are in worse shape than you think, and would be wasting your money trying to fight them.

Why?;
1. They have an exclusive easement for a road. The Forest Service is the government, representing the citizens of this country, so I believe she is right in saying that the Forest Service can allow the public to use the road.
2. "Quiet peace and enjoyment" of the use granted means that you can't try and restrict their rights.

If a layperson told you this, what do you think a bunch of high paid lawyers would say?

Read my post above...

You received a "reciprocal right of way" in their grant to you, which backs up my contention that there was a mutual exchange of exchange of rights, so the court could read their terms as being accepted by you (your predecessor) even though it isn't included in your grant to them.

You should have done a title search before you bought the property, now you are stuck.

 

[NC Aggie]

1. They have an exclusive easement for a road. The Forest Service is the government, representing the citizens of this country, so I believe she is right in saying that the Forest Service can allow the public to use the road.

Jack, I think this is the key point that you must consider. By granting an easement to a government/public entity, you're essentially giving accesss to the general public unless the easement explicitly says otherwise. Your situation wouldn't be much different than easements granted or public right of ways that municipalities maintain along roadways where property lines extend to centerline of the roadway. The general public has the right to access that roadway by virtue of the municipality being a public entity.

 

[OK-LL]

Jack, I think this is the key point that you must consider. By granting an easement to a government/public entity, you're essentially giving accesss to the general public unless the easement explicitly says otherwise. Your situation wouldn't be much different than easements granted or public right of ways that municipalities maintain along roadways where property lines extend to centerline of the roadway. The general public has the right to access that roadway by virtue of the municipality being a public entity.

I have to disagree with this statement. I have seen many easements & grants of rights-of-way to public entities, such as cities, counties, states and feds, which are not subject to expansion to the general public's use. For instance, an access road to approach a city water tower which is on private land; that access road isn't subject to public use unless the easement specifically allows for public use; it would be restricted to use by the city (city employees, contractors, etc.). I don't see where OP's grant of easement to the Forestry Service allows the FS to turn it into a public access, certainly not because they granted a so-called reciprocal accessway to him but retained their right to make it public, unless each document refers to the other specifically as reciprocal easements and contains similar language. In this type of a grant, one would be looking for language that specified "for public use" or "public roadway" or some other reference to the public. And the exclusivity of the grant curtails the landowner from granting overlapping easement rights to anyone else; the FS has exclusive use of the specific area granted and the owner cannot grant a utility company or anyone else an easement on that same area.

 

[NC Aggie]

I have to disagree with this statement. I have seen many easements & grants of rights-of-way to public entities, such as cities, counties, states and feds, which are not subject to expansion to the general public's use. For instance, an access road to approach a city water tower which is on private land; that access road isn't subject to public use unless the easement specifically allows for public use; it would be restricted to use by the city (city employees, contractors, etc.). I don't see where OP's grant of easement to the Forestry Service allows the FS to turn it into a public access, certainly not because they granted a so-called reciprocal accessway to him but retained their right to make it public, unless each document refers to the other specifically as reciprocal easements and contains similar language. In this type of a grant, one would be looking for language that specified "for public use" or "public roadway" or some other reference to the public. And the exclusivity of the grant curtails the landowner from granting overlapping easement rights to anyone else; the FS has exclusive use of the specific area granted and the owner cannot grant a utility company or anyone else an easement on that same area.

Certainly there are public utility easements and right of ways which are not open to the general public, but that wouldn't prevent the public entity from expanding access to the general public unless its explicitly limited within the verbage of the easement. Also, there's a clear distinction between a "utility easement" and a general easement for right of way. The access road you used as an example would be considered a public utility easement and would be explicitly prescribed as such. Utility easements can only be used to access utility lines or facilities for maintenance or inspection. An easement prescribed as a right of way (legal right to pass over land) does not limit the use of the access road in any way. I believe the verbage the OP posted clearly indicates this would be an easement for right of way.

 

[154NH773]

I believe the verbage the OP posted clearly indicates this would be an easement for right of way.

I agree. There are no explicit prohibitions preventing public use.

unless each document refers to the other specifically as reciprocal easements and contains similar language.

I think the OP stated that the language states that these were reciprocal easements, and therefore a court might find that the language of one infers language in the other, as long as no exclusions exist. That, however, is an issue that must be decided by a court, and there is no way to predict the outcome.

 

[LdiJ]

In my opinion, if his true goal is to prevent a public roadway from going through his land, its a losing battle. We are talking about the federal government here. If they want it, and he fights them, they can take the land through eminent domain. He would get paid something in that case, but he would still end up with a public roadway going through his land.

 

[Jack Tanner]

In gonna make the case that ...

A) The road goes essentially nowhere (the land beyond my land can be accessed from elsewhere).
B) The public leaves trash, illegally camps and shoots, outside the easement on my property.
C) Road was built with private, not public money.
D) The intent or the original grantors to the FS was not for public access (I have statements).
E) To invite the public in, overburdens the easement.

This is just a case of the FS being rudely possessive in a case where they have discretion to close the road.

 

[Jack Tanner]

For me, the legal question is ... Does "quiet and peaceable use and enjoyment" include the right of the forest service to extend right-of-way rights to the general public?

 

[NC Aggie]

For me, the legal question is ... Does "quiet and peaceable use and enjoyment" include the right of the forest service to extend right-of-way rights to the general public?

Jack, the term "quiet and peaceable use and enjoyment" is a legal term that implies the grantee (FS) has the right to use the right of way however they choose (as long as it doesn't violate agreement) without interference/disturbance from the grantor or anyone else for that matter.

Again, if it hasn't been stated, you do have a right to try legal recourse and may even stand a decent chance that a court may rule in your favor. However, my personal opinion is that you're fighting a losing battle. In regards to the 5 points you would use to make your case, none of them really would help you gain a favorable judgment other possibly the "intent" of the original agreement. I have seen cases where the language of a contract said or implied something different than intended by both parties and the court sided with the party based on the original intent. However, this was because BOTH parties acknowledged what the original intent was. So you would likely have to prove that the original intent of the grantor AND Forest Service was for this right of way to serve as a utility or access easement only and to NEVER provide access for the general public.

I honestly think your best recourse would be to attempt to amend original easement agreement or create a new agreement where the Forest Service would be responsible for maintenance (repairs and trash removal) along this access road.

 

[154NH773]

This is just a case of the FS being rudely possessive in a case where they have discretion to close the road.

Since you didn't make the original agreement with the Forest Service, you have no idea what the "intent" was at the time; nor, I'm assuming, what compensation might have passed between the parties. Even if you do have "statements", you didn't say who provided them, or what that person's role in the easement grant was. The court will ask; if the intent was not for public access, why didn't the easement state that?

This is the problem of easements. New owners of the servient estate don't understand that at some point in the past the previous owner gave up rights to their property in perpetuity, and possibly for a lot of money. This is why it is essential that a through title search be done BEFORE you purchase a piece of property.

Could you prevail in your arguments? It is absolutely a crap-shoot. You never know which way a judge will rule. Judges have great discretion to make rulings, and higher courts are averse to overturning them.