Sparrow's Reviews > Property Law: Rules, Policies, and Practices

Property Law by Joseph William Singer
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May 12, 10

bookshelves: law, reviewed
Recommended to Sparrow by: Mary Wood
Recommended for: suckers
Read from January 17 to April 10, 2010

Property is crazy. I have such mixed feelings about the entire topic. On the one hand, this was absolutely (and to my great surprise) my favorite class that I took all year. On the other hand, I don’t think I really believe in property ownership the way we define it in the West. It seems like there is something basically suspicious about paying for the right to exclude other people from a certain place. Not, like, that it’s greedy, necessarily. It just seems weird and contrived. I mean, it only works because we let it work, and when it doesn’t work there’s very little we can do to about it. Sorry, being a total pessimist over here.

Regardless, my newfound passion for the topic has absolutely nothing to do with this book, which is basically the driest, most boring thing with words on pages. Actually, the topic is really dry, so you’re not in for a treat with this review. My professor for this class, Mary Wood was absolutely wonderful, though. She is just one of those special people who loves teaching and loves a topic and is just perfect. For me, at least. If you are a sadfaced law student who does not have the luck I had in professors, I highly recommend the Barbri video on Property. The professor who teaches that one is fantabulous as well. Plus, she sings and is from Brooklyn. She also has a bit about Frank Sinatra that’s pretty good. The acronym is Frank Sinatra Doesn’t Prefer Orville Redinbacher. Unfortunately, I don’t remember what it stands for. I’m like that with acronyms.

Now for your unreliable review of the law of Property* as I learned it:

SOVEREIGN PROPERTY RIGHTS

Owning property only exists because the government says so. So, it exists in any form that the government says it exists in, with whatever rules the government decides. That probably doesn’t blow our mind like it blows my mind, but I think it’s worth thinking about for a minute. I mean, that’s true of the way we do most things. We do them because if we did them another way someone would use force to stop us. I mean, whoa, people, it’s a Brave New World here.

Anyway, I really like Justice John Marshall, from what I know of him. There is this one case, Johnson v. M’Intosh, where I think his opinion is really neat, even though it’s kind of horrifying. This was in 1823, and the issue was whether a tribe could convey property to a U.S. citizen (because two unfortunate people ended up “owning” the same property due to what I imagine was some kind of practical joke). Marshall basically says that, as far as the U.S. government is concerned, property rights were invented in North America when European nations discovered it. Before that, valid property rights didn’t exist, so a tribe can’t convey property. The thing I like about the opinion is that he goes on for a while about all the weird reasons that justify kicking the tribes off of the land (the “But we gave them Christianity!” justification is probably the sweetest), and then he’s basically like, “But here’s the thing. I can’t just say that the tribes have power to convey land and the U.S. government doesn’t because that would mean that the U.S. government doesn’t exist.” I’m really paraphrasing there, but the essence of what he says is that what the invading nations did in driving tribes off of the land was really crappy, but it’s also a fact on which the government is based. The tribes are their own sovereign nations, and they can convey land under their own sovereign laws, but those are not recognized by the U.S. government.

The later cases we read on this topic are vomit inducing. Particularly, Tee-Hit-Ton Indians v. U.S., where the judge says that we’re doing the tribes a favor by not recognizing their property rights, since they don’t understand what property is anyway. Nice. I’m not going to go all noble savage on you, but I think there’s a safe middle-ground somewhere that’s not so patronizing as either of those.

The point of this is that the federal and state governments say what property is, and then we all own it or can’t own it according to those definitions.

PUBLIC TRUST DOCTRINE

This is the duty that the government has to protect public lands (and in some cases all land) for public use. This topic was probably a bigger deal in my class than in most because Professor Wood is writing a book about it, but I think it’s interesting, so I’m not complaining. Traditionally, the protection of the government relates only to water and protects the interests of fishing, navigation, and commerce (all related to water. This is why, unfortunately, the Bluths’ idea for the ocean-top town of Bluthtown in Arrested Development is illegal). More recently, it has extended to recreation on dry sand beaches and unique ecology near water. The idea is that we have a duty to protect land for future generations, and the government is the trustee of the duty.

ADVERSE POSSESSION AND EASEMENTS

Adverse Possession . This means that because you use land, after a really long time, even if it originally belonged to someone else, it becomes yours. The requirements are that the use be open/notorious, hostile, actual, exclusive, continuous, and for a statutory period of time (usually 10-20 years). So, if the fence dividing your property from your neighbor’s is in the wrong place, or if you mow your lawn into your neighbor’s lawn for the statutory period of time, the land becomes yours. The “hostile” requirement just means that if your neighbor says, “Hey, that’s fine that you want to mow the edge of my lawn, go ahead and keep doing it,” you aren’t adversely possessing. If someone gives you permission to go onto their land, you’re just visiting their land, not possessing.

Easements . Easements are the right to use a certain part of land or use land in a certain way. It’s a partial right to a piece of property. There are negative and positive easements. Negative easements are when one Landowner 1 wants to prevent Landowner 2 from doing something on the Landowner 2’s land. Positive easements are when Landowner 1 wants to do something on Landowner 2’s land.

Negative easements are rare in the U.S. You would usually use them to prevent people from building tall buildings around you and encroaching on light and air. But we don’t really have a right to light and air in the U.S., so it’s not a great claim. It worked as a claim for someone who had solar panels, though, so keep it in your back pocket.

Positive easements come either express or implied. Express would be listed in something like a deed and have to be in writing. Implied come in four kinds:

Easement by Estoppel. This happens where you let someone cross your land for important stuff for a while, and then you can’t just make them not cross your land anymore.

Prescriptive Easement. This has the same requirements as Adverse Possession. If you just use and maintain property for long enough without their permission, the owner can’t keep you from doing it in the future. This is an important topic because of this string of “yo momma goes to law school” jokes that got started on my friend’s facebook page. My favorite one, from my friend Sean Salisbury was, “Yo momma so fat, she’s got a prescriptive easement on yo daddy’s side of the bed.”

Easement by Prior Use. This usually happens when a landowner sells part of a property and keeps part of the property. But what he didn’t tell you is that he actually has always used part of he sold to you as a driveway or something. So, suck for you, but you should have checked it out before you bought it.

Easement by Necessity. This only happens with land that is completely landlocked. Because you have to be able to get to property you bought, right? So, easement.

Appurtenant or In-Gross . Easements are all either appurtenant or in-gross.

Appurtenant easements are ones that are attached to two pieces of property (like the ones described above). The property that has the easement is called the “dominant” estate and the property that gives the easement is called the “servient” estate. Different than an “Impertinent Easement,” which is when an LOLcat shows up on one of your reviews. No, sorry, that’s not really a thing.

An Easement In-Gross is associated with a person (because people are gross) and a piece of property. Like, if you give your friend the right to cross your property to swim in your lake, that’s an easement in-gross. The power lines that go across people’s properties are commercial easements in-gross.

RIGHTS

To Exclude . The basic property ownership right is the right to exclude other people. Someone who comes on property uninvited is a trespasser. This works for other people’s stuff, too. Like, if people’s garbage is going on your property, that’s trespass.

To Enjoy . If someone substantially disturbs your right to enjoy property, that’s nuisance.

FUTURE INTERESTS

I really like future interests. I’m not going to impose them on you, though. This whole topic is about how you can deed property away, and then put it in the deed that you want it back at some point. You can say, “This property goes to Eh!, but if she reads another romance novel, then it goes to Moira, unless Moira discovers time travel.” So, if Eh! reads a romance novel and Moira discovers time travel, the property goes back to you. This is actually a kind of complicated topic, and it’s one of those law-sudoku areas. I think it’s fun, though. I know, neeeerrrrrd.

OWNING PROPERTY

You can own property with another person so that when you die it goes to your heirs or so that when you die it goes to the other owner. Wow, it’s really hitting me how boring this topic seems. Torts is so much more colorful, but you’ll just have to trust me that property is the good brother.

LEASES

It used to be, in feudal days, that people rented land for the land, not for the building, and everyone knew how to fix the building if there was a problem. So, traditionally, landlords didn’t have to come over and fix stuff if it broke at your house (I’m talking now in the past century, not feudal anymore). Also, if the building burned down, you still had to pay rent because the assumption was that you wanted the actual land, not the house. But, post-industrial revolution, that doesn’t really make sense because renters don’t use the actual land, they use the building. So, now in ever lease the landlord implies that the building will be habitable and that you’ll be able to quietly enjoy it.

COVENANTS AND EQUITABLE SERVITUDES

Those are the same thing. The difference between them is only technical. These exist for homogeneous subdivisions. This woman saw Professor Wood speak once and decided to start drying her clothes on a clothesline because of the environmental effects of dryers. It was a violation of an covenant/servitude of her subdivision. The Colbert Report did a piece about it. Shows the basic idea. (Also . . . Really? Phillip Seymour Hoffman again?)

TAKINGS

The Fifth Amendment says that the federal government can’t take property without compensation, and the Fourteenth applies that to states. The government can always take property away if it is for a “public purpose,” it just has to pay for it. Sometimes takings happen literally, like the government wants to build a highway.

Sometimes they happen through regulations, where a law makes property valueless. When that happens, the government has to pay also, but it’s supposed to only have to pay if the property is TOTALLY VALUELESS. Like, if you can pitch a tent on it and roast some marshmallows, it’s not valueless. Also, you can’t say property is valueless if you’re just prevented from doing something that’s illegal anyway, obviously. For example, if you wanted to make a cannibal colony and you’re mad that there’s a law preventing cannibalism on your property, that’s not a taking. The Public Trust Doctrine comes in here, too. The Public Trust is underneath all property ownership, so theoretically if you are destroying property for future generations, the government can prevent you as Trustee of the Public Trust without having to pay for preventing you from doing it. That’s not how it actually happens, though, because it’s not always the government running things around here. There are other, um, interests.

Anyway, that’s your lesson in property law. If you have a future interest problem, bring it on, otherwise I’ll let you slide without that learnin’. Happy excluding!

___________________________________________________________

*This only relates to real property, not personal property. Real property is land; personal property is stuff. The attorney I used to work for would yell that at me all the time, so it is eternally burned into my brain: “You can’t just SAY PROPERTY! You have to say what KIND of property! Was it PERSONAL property? Or REAL property?!” He talked in all caps a lot.)
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message 1: by Whitaker (new)

Whitaker Property law. Ugh. *shudders* Not my best subject in school.


Sparrow I know. Without my amazing professor I think I would loathe this topic. My brain fell asleep, though, halfway through writing the GR outline. It's not flashy.


message 3: by Moira (new)

Moira Russell This series is awesome! Now I feel smarter!

AHAHA LEGAL YO MAMMA JOKES.


Sparrow Jason half-heartedly started a blog for it: http://yomommagoestolawcshool.wordpre...

This is the original thread, but I don't know if you can see it: http://www.facebook.com/jtashea?v=fee...

The original UCC one is one of the absolute best. I'll put it in the contracts review if I ever do one. I laughed for like a week straight about them.


message 5: by Manny (new)

Manny I agree with Moira - already hooked on Meredith's Easy Guide to the Law!

Were other people hearing Dennis the Constitutional Peasant in the background telling us that now we see the violence inherent in the system?


Sparrow Exactly! I <3 Dennis! He's so right!


message 7: by Trice (last edited May 13, 2010 03:05AM) (new)

Trice okay, so I'm way off in another direction from the other comments, but my attention was grabbed by the bit about John Marshall and Native American land claims, and this whole issue of sovereignty and recognition of such in property dealings and the whole nightmare of what happens with the interaction/collision of 2 cultures (well, more than 2, but anyway) with such completely different concepts of 'ownership' or property rights

In central NY state the Onondaga nation of the Iroquois Confederacy/Haudenosaunee is in the midst of a land claim based on unauthorized individuals both selling and purchasing their land in some rather wacky land deals that basically started the settling of NY state (west of the Hudson).
I've been impressed by what they're asking for in the land claim, though, because they're not actually wanting the land back (which, at this point, despite past injustices, would be rather impractical), but rather want it admitted that the land deals were not legal and want to have authority to enforce the clean up of a very badly polluted lake among other things. Some of what they have to say also reminds me of the idea of Public Interest - they want things cleaned up to be passed on in better shape to future generations. I've always thought their land claim was an example of grace in the face of a history of abuses.
http://www.onondaganation.org/land/fa...


message 8: by [deleted user] (new)

So, now I think I understand my dispute with my neighbor over that one elm tree a lot better, even though the whole thing still pisses me off. (The dispute did get him to stop talking to me though, which is rad because he's super weird and has no brain/mouth filter. So it's not all bad.) Can the side of a garage (not mine, obviously) that's been fenced into my yard for at least 8 years be considered one of those easement things, so I could paint it if I wanted? Is painting over graffiti on someone else's property considered graffiti?


message 9: by Miriam (last edited May 13, 2010 07:46AM) (new)

Miriam it exists in any form that the government says it exists in, with whatever rules the government decides.

Oh, that really helps me understand an issue I'd always had a problem with, which is why the government can take away privately owned real property, not just to build say, a road as you mention (understand that) but also to sell to developers for a strip mall. I still think this is wrong but now I get why it is legal.

I also appreciate the clarification of easements. They come up a lot where I live (Sonoma County) because people build new wineries and then there are always local fights over easements, traffic, road maintenance, etc.

Ceridwen asked Is painting over graffiti on someone else's property considered graffiti?

My former neighbor did that to my garage. It wasn't touching her property, though -- we were separated by an alley, which I assume was the property of the city.


message 10: by [deleted user] (last edited May 13, 2010 07:56AM) (new)

My former neighbor did that to my garage. It wasn't touching her property, though -- we were separated by an alley, which I assume was the property of the city.

I offer to paint it over for him all the time - we tend to get tagged at the same time, and I'm doing mine anyway - and he just says "no, I'll do it," and then he doesn't. Grrr. And then when he gets notices from the city about it, I get the notices from the city about it, because he has his house numbers up all weird so they look like my house numbers. (Possibly on purpose. I told him about the continuing mistake by the city, and he just wanted to argue about how it was their fault for being stupid. This may be, but for crying out loud, just put up clear signage.)




message 11: by Miriam (new)

Miriam Having bad neighbors is awful. Mine made me never want to own a house again.


message 12: by [deleted user] (new)

I should say that the people on the other side are just perfectly awesome, and when we calmly and in a mature manner took down the bad fence between our properties, chose a new one, had it installed & split the cost without fighting, we put a door in the fence between our yards, so we can run back and forth easier. I love them.


message 13: by Miriam (new)

Miriam I had nice ladies on one side, too, but it didn't make up for the foul-mouthed, animal-torturing, child-abusing, steal-everything-not-nailed-down perpetual yard-salers on the other side. It was especially said because when I bought the place there was a really nice couple there who lent me tools and explained stuff that I (having grown up in an apartment) did not know about maintenance. But they got divorced and left. My other neighbors say after I moved the crazy people with the attack dog had their kids taken away by Protective Services.


message 14: by Eh?Eh! (new)

Eh?Eh! You can say, “This property goes to Eh!, but if she reads another romance novel this year, then it goes to Moira, unless Moira discovers time travel within the next five years.” So, if Eh! reads a romance novel and Moira discovers time travel, the property goes back to you.

AHAHAHAHAA!!! That's it! No more romance novels if that means I'll lose my property. I want to play pretend with the government!


That whole section on Adverse Possession and Easements - we deal with this all the time but this is far more detailed and clear. Wonderful. So many transportation projects get bogged down for years because of right-of-way (different from easements) and easements, private property, etc. I'm glad I'm just a technical grunt and don't have to manage or negotiate this stuff.

How does eminent domain fit into this?


Sparrow Trice wrote: "In central NY state the Onondaga nation of the Iroquois Confederacy/Haudenosaunee is in the midst of a land claim based on unauthorized individuals both selling and purchasing their land in some rather wacky land deals that basically started the settling of NY state (west of the Hudson)."

So, I didn't go into the rules about it, but they definitely apply there. The rules are that there are two rights that create a sovereign property ownership. One is the right of discovery (as in the "cunning use of flags"); the other is the right of occupation, which all tribal nations do have. But without both, you don't have sovereign property rights according to the U.S. BUT a treaty recognizing rights replaces the discovery problem. So, now, all (as far as I know. I guess that's a broad generalization) first nations have some kind of treaty recognizing their specific rights to property and water. That's what the Tee-Hit-Tons case was about - the feds were logging this whole portion of forest that was traditionally used by the Tee-Hit-Tons. But in that case, they said that since the U.S. had never recognized a treaty with the Tribe, the tribe only had occupation rights, and the feds could continue to log as much as they wanted. There are also tribal trusts (which is a little different than the public trust because I think the responsibilities are actually named in the treaties) where the U.S. has to guard tribal lands. I don't know very much about that yet, though.

Anyway, I don't know about the New York case. That sounds more like a water rights issue, which I didn't talk about other than the public trust. Usually, in treaties, the tribes reserved the right to fish and do whatever other traditional stuff they wanted in the waterways. I looked at the website, but the complaints they list sound actually like they are trying to get lands back. It sounds like the land transfers were illegal, but I would be surprised if that meant anything at this point. I mean, now the companies have even adversely possessed the land. But, that doesn't mean the EPA can't enforce water cleanup and involve the tribe. I might just be confused by the layout of the website, though. I wonder what their treaty is like.

Ceridwen wrote: "So, now I think I understand my dispute with my neighbor over that one elm tree a lot better, even though the whole thing still pisses me off."

The rules about trees and trespass are different in every state, so I'm not sure what it would be for you. Sometimes, the trees can't cross over, other times, they can.

Ceridwen wrote: "Can the side of a garage (not mine, obviously) that's been fenced into my yard for at least 8 years be considered one of those easement things, so I could paint it if I wanted? Is painting over graffiti on someone else's property considered graffiti?"

That would be an adverse possession thing, but it would be the neighbor adversely possessing your property, not that you would have rights to the garage. Is your fence-line in the wrong place? Because you could be adversely possessing the land on your side of the fence. I don't think you can adversely possess the side of a house, though, because it's not land so no one cares.

My policy on the graffiti thing is always act and later people will tell you if it was wrong. Don't ask, just act! (this is not to be construed as legal advice) Actually, if he's getting notices about it, it's probably a covenant/equitable servitude deal. There's not really much you can do because it would be trespass for you to paint the garage. But I won't tell if you do. You could also give him really bitter looks all the time. That would at least make you feel better.

Miriam wrote: "Oh, that really helps me understand an issue I'd always had a problem with, which is why th..."

They're TECHNICALLY not supposed to do that, but there was this one case, Kelo, where the Supreme Court said that "public purpose" could be a comprehensive plan to improve a blighted area, and that the court is supposed to defer to the legislature's idea of what a public purpose is. That gets into the interesting issue of judicial activism/deference, which I may talk more about if I ever finish the Constitutional Law review. But, I already had that final, so it might be a little while before I want to get back into the topic. I like Con Law, though, so maybe not so long.

Anyway, Justice Thomas (who I loathe) actually wrote a really interesting dissent in that case, where he said that a broad definition of "public purpose" allows the government to impose its (typically white, middle class) idea of what neighborhoods should look like on poor neighborhoods, which are typically black. I'm torn between being irritated at the Scalia/Thomas judicial activist camp and being totally offended at the middle-class-imposition-of-values thing. Anyway, I thought it was a good point, even if it didn't win the majority of the court.


Sparrow (wow. long post. sorry!)


Sparrow Eh! wrote: "How does eminent domain fit into this?"

Eminent domain is takings. It's the "shotgun" word. Like, whoever calls "eminent domain" first wins.


message 18: by Miriam (new)

Miriam It's the "shotgun" word. Like, whoever calls "eminent domain" first wins.

Some states have that procedure for domestic abuse! Whomever makes the call is the victim and the police are required to arrest the other party.


Sparrow Yeah, don't even get me started on what I know about family law. It freaks me out. I don't really know that much yet, but I'm taking a class this summer, so we'll see if I continue the freakout.


Sparrow Brian wrote: "Is common-law marriage a subsection of "Adverse Possession"?!"

Ha! For sure. And I think the "hostile" part even works because it is rights to another person as hostile to outside people. I'll tell you more after my family law class. I think it's weird that marriage is rewarded and defined by the government at all (I'm so Dennis the Constitutional Peasant. No property! No governmental control of marriage! violence inherent in the system!). I think, actually, common-law marriage is less common now than it used to be (as in some states have abolished it, but I'm not sure whether that's the majority of states or the minority). But I think there is something that makes sense about saying that if everyone's agreed to something for a really long time, the government can't come in and say, "No that's not okay because you didn't ask us first."


Sparrow Brian wrote: "I think Adverse Possession came up in the movie Pacific Heights, by the way.

http://tinyurl.com/3xbcxnv"


Ha (again)! I think that's actually an ameliorative waste problem, since they gave him express permission to occupy the land. Ameliorative waste is when you're make what you think is an improvement ("What? My cockroaches are so pretty!"), but the landlord or co-owner doesn't think it's an improvement, so you have to pay for it or pay to undo it.

(Seriously, now, it's actually probably just clear waste - regular destruction of property. The Doctrine of Waste works with co-owners and landlord/tenants and has three categories: clear waste, passive waste (where you let damage happen), and ameliorative waste.) The fun never ends around here! It's what you get for joking around with a law student studying for finals.


Sparrow Brian wrote: "I see what you mean, but my problem with it is that it's like saying "You consented to this situation in the past, but since you've exceeded the arbitrary time limit, now it's perminent and you can't refuse."

Yeah, but 20 years, even 10 years, is so long! I mean, I think with AP it's like you've got the one person on the one side who's been actively using the property and relying on being able to use the property, and you've got the other person on the other side who hasn't touched the property in (usually) 20 years and probably never knew the property was technically theirs. Then suddenly there's a survey, and all the care the adverse possessor has taken of the property means nothing? It seems like a more severe hardship on that person than on the person who didn't know they owned the property to begin with. I think usually, though, it's a really small piece of land, so I can't get too worked up about it anyway.

I'm not sure how that would relate to common-law marriage, though, and its benefits/burdens.


Sparrow Brian wrote: "Meredith wrote: "Ha (again)! I think that's actually an ameliorative waste problem, since th..."

Oh- this is the DEEP end of the pool! I'll be back at the kiddie end if you need me!"


Yeah, didn't include that one in the original review because it's just too much.


message 24: by Miriam (new)

Miriam my problem with it is that it's like saying "You consented to this situation in the past, but since you've exceeded the arbitrary time limit, now it's perminent and you can't refuse."

Haha, that's how my parents ended up with a common-law marriage in Oregon because they lived together for too many years!


message 25: by Sparrow (last edited May 13, 2010 12:19PM) (new) - rated it 3 stars

Sparrow Eh! wrote: "So many transportation projects get bogged down for years because of right-of-way (different from easements) and easements, private property, etc."

Okay, I wasn't going to ask because I wanted to look all cool and like I knew what you were talking about, but I keep wondering how right-of-ways are different from easements. I do not know this. Please to teach.


message 26: by Eh?Eh! (new)

Eh?Eh! Hah! Y'know what's funny? I was trying to look all cool and act like I knew what I was talking about, and throw that out there in hopes you'd expound on it. Someone explained it to me before but I've forgotten. I'm going to ask again. I'll report back.


Sparrow Maybe right-of-ways aren't attached to certain properties/people, but are open to public use?


message 28: by [deleted user] (new)

I looked up common law marriage, and it's only in place in 9 states + DC. I heard from my Canada claw student sister that in one of the provinces - I think common law is more...ahem...common in Canada - a lesbian couple used common law marriage as the basis for a challenge to open marriage to gay couples, which worked. I couldn't say more about it though, as this is legal hearsay.


message 29: by Miriam (new)

Miriam I think an easement can be a type of right-of-way but there are other types. I think a right-of-way is normally private property, right? Like, if your property had the only access to a public beach, you are required to let people cross to get to the beach, but they have no rights to use your property in any other way, such as opening a snack stand or parking cars.


message 30: by Eh?Eh! (new)

Eh?Eh! Meredith wrote: "Maybe right-of-ways aren't attached to certain properties/people, but are open to public use?"

All the people I would ask are gone today, so I looked it up and your statement seems to jive with what I understood just from picking things up as I work. This is a limited understanding, since my job is specific to one type of infrastructure. I'm very unclear on the areas outside of transportation.

Miriam is also correct, I think, but flip that first statement around and say a right-of-way (ROW or R/W) is a type of easement. The centerline of every public road is also the centerline of a strip of ROW, anywhere from 60' to 100' or more wide. This is meant to allow road or utility work to be done easily. All work has to be done within the ROW; if the work crosses the line then easements for private property have to be obtained. These can be temporary, such as for a large excavation that will be unnoticed once the pit is filled and construction is complete, or permanent, such as when a culvert is enlarged and extended out. The permanent easements are usually classified by the type of work associated with it, so the culvert would require a storm drainage easement.

Railroad ROW is different.


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