Easements - Practical Boundary Surveying - page 258

the intermediate rule jurisdictions an argument of an abutter could be that because
the street is not usable as a street—it was never built—others in the subdivision
should not be able to claim their lot value would be diminished by being excluded
from its use. Others in the subdivision might claim that the street's availability for
use adds to the value of their land. The outcome in this case would appear to be
far from certain. In the narrow rule states it is unlikely that other lot owners in the
subdivision would have a valid claim to the street unless they could show it was
their only access to a public street.
Of course, if the abutters to the street were successful in occupying the street
area in compliance with adverse possession requirements, they would extinguish
the rights of others in the private street.
18.9 Termination of Easements
An easement may be terminated or extinguished. Any easement may be termi-
nated by a written release recorded in the recorder's office. An easement created
by necessity will normally be extinguished when the necessity ceases. Let us
reconsider the example which applies to Fig. 18.3 . In that example A conveyed
the northerly portion of the property to B. Under the circumstances an easement
implied by necessity was created. If B then conveys the property to Mr. Butter,
the easement by necessity will terminate because there is no longer a necessity.
Because Mr. Butter's land has access to Perseverance Way and lot 2 is being
annexed to the property having access, the necessity ceases.
Easements may be extinguished by adverse acts of the owner of the servi-
ent estate. Consider the example shown in Fig. 18.4 . Suppose the owner of lot 2
acquires land from Mr. Butter and constructs a driveway over the former Butter
land to Perseverance Way. Unlike an easement implied by necessity, the easement
by implication would not be extinguished by the alternative access. Suppose fur-
ther that the owner of lot 1 decides to block off the easement running over lot 1
by building a high concrete wall across the way. If the wall remained in place for
the statute of limitations, the easement would be terminated. This theory is really
nothing more than the application of adverse possession to extinguish an ease-
ment. It should be noted, however, that the blockage of the way must be substan-
tial. Merely erecting a gate or partially blocking the way may not be enough. The
blockage must be such that passage is virtually impossible.
It is possible to abandon an easement thereby causing its extinguishment.
However, mere nonuse is usually not enough to work an abandonment. There must
be some affirmative act on the part of the owner of the dominant estate as evidence
of the intent to abandon the easement. For example, in Fig. 18.4 , if the owner of
lot 2 closed off the wall between lots 1 and 2 so that the way would no longer be
passable, the wall would be considered evidence that the owner of lot 2 intended
to abandon the easement.