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REAL ESTATE 13: An easement may be lost through abandonment.

In this case, the trial court ruled that the defendant had abandoned their easement interests.

The owner of a lot abutting a public roadway possesses three distinct interests in the roadway, being

 (1) as a member of the general public,

(2) as an owner of the reversionary interest to the center of the street, and

(3) as an owner of a lot, possessing the right of ingress and egress.

Thus, owners of lots within a subdivision adjoining platted roads, where a county’s road commission has abandoned the public’s right-of-way to the platted roads, retain an easement for ingress and egress independent of the public’s right.

The parties in this case agreed that W Drive should be vacated as a public road, but the question remained whether the defendants retained an easement for use of W Drive after it was vacated as a public road.

The trial court correctly determined that after vacation of the public’s interest in W Drive, the defendants retained an easement right in W Drive for ingress and egress. Having determined that the defendants retained an easement in W Drive, the trial court, concluded that an abandonment analysis applied.

An easement may be lost through abandonment.  An easement is abandoned when the owner of the easement relinquishes it with the intention of releasing his or her right to the easement.  Nonuse of the easement alone does not result in abandonment of the easement.

The trial court considered the evidence admitted at trial and found that W Drive was not used, noting that the defendant’s testimony that they used W Drive each year lacked credibility. But although nonuse alone does not prove abandonment, lengthy nonuse may be considered together with other acts to sufficiently indicate the requisite intent to abandon an easement.  The use of another road as the only means of ingress and egress, thereby establishing a roadway elsewhere, evidences a clear intent to abandon an easement in the property that is not used as the roadway. The trial court found that the defendant’s position historically was that W Drive was a road on paper only and that the entire neighborhood had failed to develop or use it. The witnesses all agreed that in its current condition, W drive would be difficult or impossible to navigate with a vehicle.  On that basis, the defendants had prevented others from using W Drive. The trial court found that these actions by the defendants sufficiently showed their belief and intent that W Drive was not a roadway available for use, and thus demonstrated a clear intent to abandon their easement rights.

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