Archive | easements RSS for this section

Preserving Open Spaces in Colorado

I am privileged to live and work in Colorado, a state with grand and beautiful open space areas and many outdoor recreational opportunities.

Colorado Coalition of Land Trusts (CCLT) * is an organization committed to the establishment of areas for land use in the state and preserving those areas for recreational use and for future generations to enjoy.  Their website (www.cclt.org) offers opportunities to attend various events and tours across the state – for members and non-members.

One of the events noted on the CCLT website currently is a conference held by the Colorado Open Space Conference (COSA)

The conference is open to the public. The dates are September 18-20, 2017 at the beautiful Beaver Run Resort in Breckenridge, Colorado.

For more information go to the COSA website (www.coloradoopenspace.org).

Of Legal Note: A conservation easement is a voluntary legal agreement between the owner(s) of land and a land trust (or a government agency) that permanently limits uses of the land.  The easement is established in order to protect the land’s conservation values.

There are various other easements – notably: preservation; affirmative; negative; and covenants (which differ in form)

* From the website: “CCLT is Colorado’s statewide membership organization for the land conservation community. We work to be a voice for the community and to secure support for increasing open space, and preserving agricultural land and water ways. We provide continuing education for our membership to ensure we have the knowledge and skills to conserve land in a way that is collaborative, cost-effective, and lasting.”

Working To Preserve Your Wealth and Protect Your Future…in a Constantly Changing World

 Please read my full Disclaimer and How I Can Help You

Visit my website:   www.attorneybarbaradalvano.weebly.com for more articles and printable infographics

Advertisements

Easements, Railroads, Property Law and the U.S.Supreme Court

Western ranchers appear to have “won” with respect to the Supreme Court decision: Marvin M. Brandt Revocable Trust et.al. v. United States (which reversed a lower court’s decision) Amazingly, the small business concern of the Brandt family fought a case against the Government and won in the U.S. Supreme Court.

Argued Jan. 14, 2014: decided Mar. 10, 2014

And the written decision reads like something out of the Old West dating back to before 1875 and the heyday of the transcontinental railroads.

From the decision: “Congress passed the General Railroad Right-of-Way Act of 1875 to provide railroad companies “right[s] of way through the public lands of the United States,” 43 U. S. C. §934. One such right of way, obtained by a railroad in 1908, crosses land that the United States conveyed to the Brandt family in a 1976 land patent. (The Brandt family property is in Wyoming.) That patent stated, as relevant here, that the land was granted subject to the railroad’s rights in the 1875 Act right of way, but it did not specify what would occur if the railroad later relinquished those rights.”

Chief Justice Roberts: “This case presents the question of what happens to a railroad’s right of way granted under a particular statute—the General Railroad Right-of-Way Act of 1875—when the railroad abandons it: does it go to the Government, or to the private party who acquired the land underlying the right of way?” (The Government had argued that the land reverted back to the Government.)

A significant point in the decision:  “The essential features of easements—including, most important here, what happens when they cease to be used—are well settled as a matter of property law. An easement is a “non possessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.” (one legal definition of an easement)

Restatement (Third) of Property: Servitudes §1.2(1) (1998). “Unlike most possessory estates, easements . . . may be unilaterally terminated by abandonment, leaving the servient owner with a possessory estate unencumbered by the servitude.”

Id., §1.2, Comment d; id., §7.4,Comments a, f. “In other words, if the beneficiary of the easement abandons it, the easement disappears, and the landowner resumes his full and unencumbered interest in the land. (See Smith v. Townsend, 148 U. S).”

The bottom line: 

written by Chief Justice Roberts – “More than 70 years ago, the Government argued before this Court that a right of way granted under the 1875 Act was a simple easement. The Court was persuaded, and so ruled. Now the Government argues that such a right of way is tantamount to a limited fee with an implied reversionary interest. We decline to endorse such a stark change in position, especially given “the special need for certainty and predictability where land titles are concerned.” Leo Sheep Co., supra, at 687.

The judgment of the United States Court of Appeals for the Tenth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered-

The Martin M. Brandt Revocable Trust retained their land in Wyoming. Essentially, the ruling was that “the government cannot redefine previously property rights out of existence”.

I encourage those with an interest in History, railroads, land easements and property rights to delve into the entire 27 page ruling of the Supreme Court (Chief Justice Roberts)  with regard to Marvin M. Brandt Revocable Trust etal v. United States ( www.supremecourt.gov)  It makes fascinating reading.

See bottom of page for my column – “How I Can Help You”, contact information and Disclaimer