Easements

Overview

An easement is an acquired, nonpossessory interest in land owned by another party. Another way to think of an easement is as a privilege or right, distinct from ownership, to use the land of another in some specified way. Local governments can obtain easements in a variety of ways, including through dedication as part of the development approval process, through direct negotiation with the property owner and through the eminent domain process.

This page covers right-of-way (the most common easement obtained by local governments), as well as the myriad of other non-right-of-way easements obtained by and granted to local governments. These easements frequently arise in conjunction with a municipality’s public works projects or during the plat approval or building permit process where the municipality recognizes a need for public use of private land for specific municipal needs.

Creating an Easement

If the local government secures the easement through dedication via a building permit, subdivision, or other land use approval process, the government needs to be cognizant of overreach. The dedication must be reasonably related to the impacts caused by the development. We explore this concept on our Property Rights and Regulatory Takings topic page and Regulatory Takings Court Decisions topic page.

If the easement is created outside of the development approval process, the property owner may choose to grant the easement for free or may demand compensation. A good method for determining the value of the easement is to secure an appraisal on which the local government can base its offer. The easement can be granted for a set period of time or can be granted in perpetuity. Either way, if the easement is no longer needed, it can be released by recording a release of easement with the county.

Local governments can also establish an easement by prescription. This occurs when there is no official easement document but the local government has met the elements to establish the easement. See Todd v. Sterling (1954).

To establish an easement by prescription, a local government would need to prove they used the land for 10 years, and the use was (1) hostile to the rights of the servient (i.e., burdened) estate; (2) open and notorious; (3) continuous or uninterrupted; (4) over a uniform route; and (5) exclusive. See The Mountaineers v. Wymer (1960).

Common Types of Easements Granted to Local Governments

The most common types of local government easements are right-of-way, utility, or native growth protection easements.

Right-of-Way Easement

This is the most common type of easement secured by local governments. It generally encompasses improved roadways, sidewalks, and parking strips.

Sometimes, a city, town, or county will own the fee title to the property underlying the public right-of-way, but it is more common for the municipality to have an easement for public travel with the abutting property owners owning fee title in the property that typically extends to the centerline of the right-of-way. For example, see Rowe v. James (1912) (“We have uniformly held that a city acquires an easement in a street in consequence of a dedication”) and Kiely v. Graves (2012) (“Normally, the interest acquired by the public in land dedicated as a highway is only an easement”).

In this situation the fee title is encumbered with the public easement, and the abutting property owner can only use the property — if at all — subject to the easement for public travel. Cities and counties commonly secure right-of-way through the land use permitting process. For example, see:

• Bainbridge Island Municipal Code Ch. 12.30 – Street Dedications

Municipalities are authorized to permit incidental uses of rights-of-way, including private uses, that do not unreasonably interfere with public travel. See Winkenwerder v. City of Yakima (1958), which upheld an ordinance allowing placement of advertising on top of parking meters. This authorized use of the right-of-way is granted through the city, town, or county’s right-of-way permitting process.

If the right-of-way is unopened and not improved, the property owner is not subject to the same restrictions on use. In these circumstances, the property owner can use the unopened, unimproved right-of-way as they can the rest of their private property, subject to the possibility that it will be opened and improved at some time in the future and their personal use will have to cease.

A right-of-way easement can only be extinguished through the street and road vacation process. However, certain “ancient” county roads and streets that remained unopened for five years are automatically vacated. Under RCW 36.87.090, this automatic vacation applies to county roads and streets that were platted between 1890 and March 4, 1904, were unopened for five years, and were not annexed or incorporated by a city or town within five years after the date of dedication. See Gillis v. King County (1953) and Street Vacations and Ancient Rights of Way (1993).

For more on the nature of public right-of-way, review the following MRSC blogs:

• Understanding Municipal Rights-of-Way: From Centerline to Edge (Part 1) – Covers the fundamentals and uses or rights-of-way for travel;
• Understanding Municipal Rights-of-Way: From Centerline to Edge (Part 2) – Addresses sidewalks, street trees, and the areas near the outer edge of the right-of-way; and
• Understanding Municipal Rights of Way: From Centerline to Edge (Part 3) – Covers utilities, franchises, small cell facilities, and right-of-way use permits.

Utility Easements

Local governments secure utility easements for a variety of purposes including for installation and maintenance of the municipal utility infrastructure related to sewer, drainage, and stormwater.

It is common for local governments to obtain a declaration of covenant and grant of easement in the same document, in which the parties agree to engage or refrain from certain action (the “covenant”) and the property owner permits the local government the right to use the land to maintain, repair, and otherwise work on the utility infrastructure located on the private property (the “easement”).

Common terms included in utility easements are:

1. A right-of-access that details the local government’s ability to access the easement property to inspect, maintain, repair, and otherwise use the easement area for the granted purpose;
2. A requirement that the easement runs with the land and applies to successors in interest; and
3. An obligation to restore the surface of the easement area to match the area’s existing condition prior to the local government’s work in the easement area, as nearly as practicable.

Below are selected examples of utility easements:

• Dupont Easement for Utilities (2011) – Template for grantor to grant non-exclusive easement for underground water/storm drainage utilities. Grantor must obtain written consent before planting trees or installing any other pipes or structures within easement; city will not damage the property.
• Kitsap County Sewer Easement (2020) – Template for grantor(s) to grant a sewer utility easement. Private improvements within the easement shall not be disturbed or destroyed, or if they are, they will be replaced.
• Pierce County Storm Sewer Easement (2021) – Template for grantor(s) to grant a utility easement for storm sewer infrastructure. County is not responsible for replacing or restoring landscaping, fences, or other items that may be damaged in the process.
• Shoreline Declaration of Covenant and Grant of Easement for Stormwater Facilities and/or BMPs (2018) – Template for grantor(s) to grant a utility easement for stormwater facilities and/or best management practices. City must provide advance notice of repair work; grantor must receive approval prior to altering stormwater facilities. City will restore ground surface.

Native Growth Protection Easements

Local jurisdictions use various instruments to establish native growth or critical area protection areas to protect critical areas and their buffers from development impacts. Local governments often adopt this protection in the critical areas chapter of their municipal code.

For example, the City of Renton requires that certain development proposals create a separate native growth protection tract in the subdivision and record a covenant or deed restriction protecting the tract from development. Renton Municipal Code 4-3-050G(3) also provides the option to record a conservation or protective easement to ensure protection of the critical area and its buffer.

Snohomish County also has a robust program for establishing native growth protection areas.

Common Types of Easements Granted by Local Governments

Requests for use of right-of-way proceed through the right-of-way use permitting process. Requests for use of non-right-of-way, publicly owned property can be conveyed through an easement and can come from private individuals, businesses, or utilities (for example, for an access easement to provide a cable connection to a cable customer or an access easement to access a property owner’s otherwise inaccessible parcel).

Only the governing body (such as the city council or county commission) has the authority to convey an easement, although this authority can be delegated to the executive or department head through adoption of a policy, ordinance, or resolution. For example, see:

• Maple Valley Resolution No. R-19-1394 (2019) – Delegating signature authority to city manager to execute an easement to a water and sewer district for operation and maintenance of a sanitary sewer line at a city park.

If the local government conveys an easement to a private party, it should require compensation for the conveyance so there is no violation of the gift of public funds prohibition.

Releasing an Easement

If the local government no longer needs an easement, the process for releasing (extinguishing/ vacating) the easement will depend on whether it was dedicated on the face of the plat (i.e., the map showing the decision of land into lots and the streets, alleys, dedications, easements, etc.) or if it was granted through a stand-alone document. Our subdivisions topic page offers more information on plats.

A local government is required to follow the process for plat alteration pursuant to RCW 64.04.175 to release an easement dedicated on the face of a plat. See M.K.K.I., Inc. v. Krueger (2006), which held that an easement depicted on a short plat could only be extinguished by formally amending the plat.

To release an easement granted independent of a plat, the legislative body will simply take action to extinguish the easement. One option is for the local government to follow its surplus property procedures, although this is not required. Note, however, RCW 35.94.040 provides that a city can only release a utility easement after it holds a public hearing and adopts a resolution declaring the easement surplus to the city’s needs and no longer required for public utility purposes.

For more information on surplus requirements, see our pages Surplus City or Town Property, Surplus County Property, and Surplus Property for Special Purpose Districts.

Regardless of whether the easement was released by altering the plat, by simple action of the legislative body, or after a public hearing and adoption of a resolution, the local government should record a release of easement with the county to provide a clear chain of title.

Releasing right-of-way can only be accomplished through the street or road vacation process.

MRSC Recommended Resources

• Eminent Domain
• Right-of-Way Use Permits
• Street and Road Vacation Procedures