WSP12077

• File Number: 8410.350
• Description: Platte River Basin - Basin Multistate Organizations - Missouri Basin IAC
• State: CO
• Basin: South Platte
• Water Division: 1
• Date: 12/14/1962
• Author: George T Omalley Jr
• Title: Land Easements for Recreation - MBIAC 128 th Meeting
• Water Supply Pro - Doc Type: Report/Study

,~

f\

.

n "28 f~!
nd"" '-'

.

-2-

preparation of an overall plan is the only way to insure rational and wise
decisions on public development programs of all kinds, including a program
of acquiring rights less than a fee for outdoor recreation purposes.

The proposal that legal interests in lands required for recreation
designed specifically for this purpose is not merely arbitrary, for most
other possible types of accepted legal interests have compelling disad-
vantages. The principal alternative legal devices are as follows:

1.

By lease.
rights to
ly public

Leases are fairly familiar devices to obtain the
certain limited affirmative uses of land, particular-
hunting and fishing rights.

2. By license. A license provides revocable permission to come
on land and to use it for specified purposes. Because it is
revocable, it provides no protection at all.

3. By restrictive covenant. A fee owner may promise (covenant)
not to use land for certain purposes. The enforcement of
covenants is so befogged with highly technical requirements
as to make this one of the prickliest parts of the highly
technical field of real property law. A quotation from my
reference indicates that "no one in his right mind would ever
tangle with this morass if any other conceivable course of
action were available."

4. Acquisition of the fee and lease-back or resale of certain
rights, An easement is a limited right over land owned by
somebody else. Easements are of two types, affirmative and
negative. An affirmative easement is a limited right to make
use of land owned in fee by someone else; the familiar case
is a right of way across someone else's land. A negative
easement is a right to prevent a property owner from using
his land in specified ways; normally for specified types of
land use and activities. If an easement is held by the o>mer
of nearby land and used in connection therewith, it is called
an easement appurtenant. In this situation the nearby land
is called the "dominant tenement" and the land subject to the
easement is called the "servient tenement". If ownership of
the easement has nothing to do with ownership of land nearby,
the easement is called an easement in gross. While an appur-
tenant easement is presumed to pass with a conveyance of the
fee, there is some question whether an easement in gross is
transferable. Conservation easements normally tend to partake
of the characteristics of an easement in gross. A substantial
proportion of easements have arisen either by adverse possess-
ion, or by implication from the necessities of a situation.
Thus, easement rights are often not too clearly defined.

A major problem involves the relative cost of acquiring easements.
The cost of easements in the past have varied widely, normally averaging
between 60 and 80 percent of the estimded cost of acquiring the fee, and
in some cases actually amounting to over 100 percent of the estim~ted fee
cost. A public agency would be better off even financially to purchase