Seasons Greetings – Easements and Partial Takings

by: Joseph Grather
15 Dec 2022

Property has often been described as a bundle of rights, and narratively depicted as a bundle of sticks.  I was recently preparing to try a case involving an easement taking, which was resolved at the 11th hour as many cases do.  Thinking about how best to present the case to a jury, a recurring thought was how to define “easement.”  Professor Powell’s definition left me confused:  “The resulting congeries of privileges had by an easement holder takes its basic framework from the kind of easement in question” 3 Powell, The Law of Real Property s 414, p. 457 (1952).  Congeries are a “disorderly collection” or a “jumble”.  Hmm. That’s not going to help me – or a jury – understand.

Let’s say the easement in question was a roadway easement.  Historically public rights-of-way encumbered the adjacent property estates ‘equidistance.  In other words, the adjacent owner’s fee simple estate ended at the centerline of the public right-of-way.  Most lawyers know the basic easement principles of the “dominant estate” and the “subservient estate.”  In a roadway easement, the public at large has the right to cross over the property within the boundaries of the roadbed.  The owner has a naked fee interest in the easement as its subservient rights are all but destroyed by the public’s superior right to use and enjoy the owner’s property.  In this example, the “owner” has lost the right to exclude, the right to develop, the right to enjoy, and the right to quiet enjoyment; etc.  Yet, the anticipated refrain from the government attorney is that ‘we’re only taking an “easement.”‘  While public rights-of-way were historically created by easements (perhaps “by necessity” or “prescriptively”), in more recent times most State highway departments recognize that the taking of a public right-of-way over private property eviscerates all the sticks in the bundle.  Therefore, the State takes the “fee simple absolute” interest in the property.

To add to the complexity of the issues, when the government takes an easement, they only take a “part” of the property (such as one stick from the bundle), so there is a “remainder” (the rest of the bundle), and the question of damages to the remainder enters the fray.  “Obviously, flexibility is the hallmark of such an inquiry because just compensation in a given case will depend on the character and use of the property involved.” City of Ocean City v. Maffucci, 326 N.J. Super. 1 (App. Div. 1998).  And, “[b]ecause there is property remaining subsequent to the taking that must be valued, an examination of all of the characteristics of such remaining property after the time of the taking, as opposed solely to facts in existence at or immediately before condemnation, is inescapable.   Therefore, in the case of a partial taking, the market value of the property remaining after a taking should be ascertained by a wide factual inquiry into all material facts and circumstances‑‑both past and prospective‑‑ that would influence a buyer or seller interested in consummating a sale of the property.” State v. Silver, 92 N.J. 507, 514 (1983).  With this in mind, if one of the sticks from the bundle is taken by eminent domain, does the taking of that stick impact the other sticks in any way?  Or does taking that stick potentially have an impact on a different property, with a different bundle of sticks, if that other property is owned and used with the first property as a “functional unit”?  One thing is clear – partial takings can be very complicated.  Like real estate itself, no two partial takings are exactly the same and it’s critical that every partial taking be carefully analyzed and understood because its impacts can be very significant or even disastrous.

Questions abound for the jury and the condemnation practitioner.  Having confronted these issues in hundreds if not thousands of cases, we can certainly assist property owners challenged with an easement taking.

Now back to Holiday Cheer and “visions of sugar plums dancing through my head….'”