Public Easements Research Articles

Право доступа: сервитут или соседское право?

The article analyses the right of access: the right of passage and the right of connection (flow) of resources. It is hypothesised that the right of access is not a separate subjective right but an entitlement, i.e. an element of the title under which real estate is used, which allows the right of access to be classified, along with mutual rights (permissible emmission rights), as a category of neighbour’s rights. Since the right of access follows from the very title to one’s property, it does not require the establishment of a limited property right over another’s property. The category of access rights is distinguished from related legal constructs involving interaction with others’ property: on one hand, behavioural possibilities provided by public law, which do not imply any subjective rights (such as public easements); on the other hand, limited property rights, which are independent subjective rights. It is proposed to distinguish easements from the right of access based on the origin, derived from the level of satisfied needs. Neighbour’s access rights are intended to meet the needs of the right holder without which their right would become nominal, therefore the right of access should not require any additional procedures (obtaining consent or a court decision, which would leave the right nominal during the waiting period). The right of access stems from the title but may be expressed by the law as the limits of ownership rights to neighbouring real estate (pre-revolutionary Russia, Germany). An easement as a subjective property right is proposed to be viewed as an adaptation of legal relations to the interests of specific neighbours, shifting the boundary of what is permissible by law towards greater (easement of convenience) or lesser (negative easement) impact.

Проблемы правового регулирования эксплуатации опасных производственных объектов в отсутствие оформленного права на земельные участки

This article examines the primary challenges associated with the legal regulation of placement of energy facilities on land and land plots owned by the state or municipality without providing land plots and establishing easements or public easements. This paper considers the legal institution in question as a legal regime for permitting the use of lands and land plots by persons subject to the limitation of the rights of the owner. It notes that the possibility of its use implies a mixed legal nature, since the expression of the user’s will is supported by the need to issue an act by an authorized body (permit). The author of this article concludes that the issue of charging fees for the use of land and land plots should be legislatively regulated in accordance with Chapter V.6 of the Land Code of the Russian Federation. This rule would ensure uniformity in the regulation of the legal relations under consideration.

Правовые аспекты обеспечения прав титульного владельца газопровода при выполнении работ на чужих земельных участках

This article is dedicated to a complex study of the issues of protection of rights of title gas pipeline holders (gas pipeline owners and gas pipeline operating companies) in performance of engineering works on gas transmission network sections located within the boundaries of land plots owned by others. Considering the special nature of a gas transmission network as a source of increased danger and a hazardous industrial facility, the author believes that one of the priority areas of gas pipeline operation is regular diagnostics and maintenance as well as in-process current (emergency) repair performed to avoid any breakdowns of the normal operation mode of the gas transmission network and causing of damage to lives, health and property of third parties. Taking into account these circumstances and the specifics of legal regulation of gas pipeline operation, the author of the article singles out the legal problem that lies in the ambiguity of approaches to the solution of the issue of provision of the title gas pipeline holder with access to the operated section of the gas transmission network if such facility is located within the boundaries of a land plot not owned by the gas pipeline holder. In order to solve this problem, the author performs a systemic analysis of the applicable laws of the Russian Federation and the legislative practice of some foreign countries and singles out three key concepts of provision of access to a gas pipeline located at a land plot owned by another person; such concepts include an opportunity to establish private or public easement and imperative proclamation of the unconditional right of the gas pipeline holder to unrestricted access to any section of the operated gas transmission network irrespective of the ownership of land plots such sites are located at. The author gives a systemic evaluation of each of the mentioned conceptual approaches; based on such evaluation, the author brings forward recommendations for improvement of the applicable laws to comply with the proclaimed principle of ensuring energy security of the Russian Federation.

Публичный сервитут: актуальные изменения и перспективы развития законодательства

The article analyzes the procedures provided for by the laws related to the establishment of a public easement in accordance with Chapter V.7 of the Land Code of the Russian Federation, in view of the general requirements for the regulation of easement in accordance with the civil and land laws of the Russian Federation, current changes in this institution of limited real rights in order to identify ambiguous requirements that prevent the formation of consistent law enforcement practice at the level of decisions of government authorities, local self-government and courts in the absence of authoritative guidelines such as, for example, the generalization of judicial practice in the relevant category of cases, and the ways of possible development of public easement institution are formulated. The purpose of this research is to formulate questions arising during the analysis of the requirements of Chapter V.7 of the Land Code of the Russian Federation and identify gaps in legislative regulation, as well as reasonable judgments thereto in order to find possible directions for further development of the public easement institution.

CHANGES IN LEGISLATION OF THE ESTABLISHMENT OF LAND EASEMENTS FOR ENGINEERING INFRASTRUCTURE OBJECTS

The article is devoted to the legislation changes in regarding the establishment of land easements for the engineering infrastructure development (except for energy infrastructure objects). An analysis of the main changes in the land legislation during 2020-2021 and related to all stages of the formation of land easements was carried out. It was established that the types of land servitudes were expanded and the list of land use restriction codes was supplemented. Due to this, compliance of the main types of easements and restriction codes was achieved, which greatly simplifies the registration of land easements in the State Land Cadastre.
 The new procedure for establishing land easements for engineering infrastructure facilities on state and municipal lands, which allows for the formation of land easements on a single land plot, is considered. Compared to the old rules of law, this will significantly simplify the establishment of land easements for main engineering networks development with long linear objects. The establishment of such a land easement provides benefits for the entire community and can be as a public easement, which exists in many countries, but has not yet been adopted in Ukraine. The procedure states that if there is a decision of the local council to establish an easement for the period of preparation of technical documentation for the easement land plot and registration of rights to it, the land is reserved for this purpose for six months. The Land Code has been supplemented with an innovation that in case of change of ownership of an encumbered land plot, amendments to the land easement agreement are not obligatory, but are made only at the request of the parties.

Liability for violation of a public easement

Liability for violation of a public easement

History of public easements in Russia

History of public easements in Russia

Types of easements and peculiarities of their implementation in the Russian and Vietnamese Law

The relevance of this article is substantiated by the absence of unified approach toward comprehension of the legal nature of public easement. Insufficient regulation of easement relations in civil legislation of the Russian Federation (easement is mentioned in just four articles of the Civil Code of the Russian Federation) entails the problems in law enforcement practice. One of such problems is the absence of universal classification of easements that would ensure unity of the mechanism for regulating easement relations, which affords grounds for amending the current Russian legislation. The attempt to systematize easements suggested by the real right reform is polemical and yet to be approved. The subject of this research on the basis of comparative legal analysis is the provisions of the types of easements and peculiarities of the implementation in the Russian and Vietnamese law. The novelty lies in carrying out a comprehensive comparative legal analysis of the types of easements in the Russian and Vietnamese law. The conclusion is made on the gap in the mechanism of regulation of easement relations in the Russian legislation. The need is substantiated for the systemic construction of easement norms in the Civil Code of the Russian Federation. The author makes recommendations for the improvement of the provisions on easement in the reform, and outlines the vector of development of this institution in the current legislation of Vietnam. The theoretical and practical value of this work gives an in-depth perspective on the civil law of the Russian Federation and Vietnam.

Политико-правовое обоснование введения ограничений права собственности на земельные участки в различных сферах деятельности

In the context of land ownership reform, the formation of different ownership, individual approaches to the use of natural resources and the property complex has become a priority. At the same time, in all cases, the function of determining ownership is of particular importance and it plays an important role in the formation of effective land and property relations in the urban economy and in other areas of activity. This article discusses the political and legal justification for the introduction of restrictions on the right of land ownership, including the establishment of easements, public easements, zones with special conditions for the seizure of territories, the seizure of lands for state and municipal needs.

ОБ ОБЪЕКТЕ И СИСТЕМЕ ВЕЩНЫХ ПРАВ НА ЗЕМЕЛЬНЫЕ УЧАСТКИ В РФ В КОНТЕКСТЕ РЕФОРМЫ ГК РФ

Two concepts have developed around the world - single object and multi-object real estate. The choice of the model determines the systematics of rights in rem over real estate. At the present stage of development of the legislation of countries where a land plot is regarded as a single real estate object, this concept does not always effectively regulate the relations of persons having a legal interest in real estate. The concept of a single object has been replaced abroad by the idea of a parcel unit which allows for the recognition of rights in rem to separate spaces: underground, above-ground and aerial. The concept of parcels implies granting a number of privileges to property owners within the boundaries of a land plot. Analogous to the concept of parcels in Russian law may be the concept of composite immovable property. Applying the concept of composite immovable property to multifunctional complexes, cottage settlements, blocks of flats and property of garage co-operatives with vesting property owners with rights of common ownership of common use property (if any) seems more relevant to the interests of such persons compared to the current regulatory model. The system of rights in rem over land plots in accordance with the concept of a single object in a multi-object real estate will not work efficiently. The approach proposed in the Draft Amendments to the section on rights in rem of the Civil Code of the Russian Federation is aimed at duplicating the already existing structures and giving the rights of obligation in rem and the negative easement the status of rights in rem. This confusion destabilises the circulation of real estate that has developed over decades. Gratuitous and perpetual rights to use land plots must be retained as the basis for the functioning of special public legal entities and the support of subjects for socially important purposes. However, the capacity of the holders of such rights can be expanded by granting the right to own a land plot. In order to distinguish between real and compulsory lease regime, it is possible to distinguish between user (compulsory) lease and user-owner (real) lease. It is also necessary to expand the range of security transactions with respect to land plots by providing for the possibility of leasing and sale with the right to buy it back. For easements in the Russian Federation, an open list of types of private easements should be established, while public easements, on the contrary, should be subject to a closed list. For the Russian Federation, the introduction of a reciprocal easement structure could be relevant. In the case of personal easements, the potential of such rights in relation to land plots cannot be appreciated and the need to duplicate existing rights through such a construction. A similar problem is characteristic of usufruct and rights in rem. In this respect, it would be more reasonable to introduce the property rights in real estate in Russian law that are endowed with a succession effect.

Сервітут як об’єкт цивільних прав

Виявлено історичні тенденції та стан сучасного правового регулювання речових прав на чуже майно. З’ясовано характерні ознаки й особливості сервітуту як об’єкта цивільних прав. Розглянуто способи набуття та припинення сервітуту, його обсяг і правовий режим, особливість публічних сервітутів. Сервітут як різновид речових прав, об’єктом яких виступають права на чужу річ, є особливою категорією майнових прав і специфіч-ним об’єктом цивільних прав з огляду на особливості, пов’язані з його оборотоздатністю. Сервітутне право не лише надає власнику змогу ефективно використо-вувати свою річ, а і передбачає задоволення інтересів, у тому числі і немайнових, інших осіб (наприклад, здійснювати право проходу чи проїзду через чужу зе-мельну ділянку навіть розміщати тимчасові споруди). Право власника земельної ділянки на обмежене корис-тування чужою земельною ділянкою зумовлено необ-хідністю та задовольняє потреби (чи усувати недоліки) цієї ділянки за рахунок інших, як правило, суміжних ділянок. В особи, яка у встановленому порядку набула сервітут, виникають правомочності, які і становлять зміст сервітутного права.За відсутності згоди щодо встановлення сервітуту зацікавлена особа має в суді довести неможливість нор-мального господарського використання ним земельної ділянки за відсутності сервітуту. Набуваючи серві-тут особа має уникати зловживання своїми правами. За відсутності підстав набуття речових прав, спроба на-бути їх у будь-який спосіб зумовлює нікчемність пра-вових наслідків.У сервітутних відносинах завжди виступають дві сторони: власник земельної ділянки та особа (чи кіль-ка осіб), яка набуває обмежене речове право на чужу земельну ділянку у вигляді сервітуту. Оскільки будь-який сервітут завжди є обмеженням чужого права, він встановлюється у спосіб, найменш обтяжливий для власника речі. З іншого боку, справедливо зазначи-ти, що обмеження майнових прав породжує для влас-ника необхідність утримання від певних дій, що мо-жуть порушити права іншої особи. Якщо особа набула обмежене право, то в неї не можуть не виникнути пра-вовідносини із власником речі. Різновид обмеженого права, тобто встановлені законом заборони, які звужу-ють зміст суб’єктивного речового права з метою охо-рони і здійснення речових прав інших осіб, і визначає характер таких відносин.

Public easements’ establishment for forest fund lands during seasonal roads’ designing

The article focuses on question of public easements’ establishment for forest areas intended to accommodate seasonal roads as temporary structures. On one hand, seasonal roads are transport routes, which location changes every season. At the same time, they have features of real estate items as they are inseparably linked with the ground surface, and their movement without disproportionate damage to appointment is impossible. In both cases season roads require immediate strategic decisions, concerning their construction and operation. Due to the fact that seasonal roads are distinctive for territories of the northern regions, they are most often located on the forestry fund lands. That’s why the question of territory planning while designing of such objects in difficult natural conditions is one of the most difficult in civil engineering, geodesy, land and forest law. Relevance is determined by need of increasing efficiency of the forest fund land use during designing of these real estate items, taking into account their specificity. The aim of research involves advanced technology of designing work’s development for seasonal roads. This technology gives opportunity of first-ever defining possible changes of seasonal roads’ boundaries by results of field measurements of physical and mechanical soil properties.

Equality at the Cemetery Gates: Study of an African American Burial Ground

In Charlottesville, Virginia, the University Cemetery serves as the final resting place of many of the most prominent community members of the University of Virginia. In 2011, the University planned an expansion. During archaeological research to this end, sixty-seven previously unidentified interments, in both adult and child-sized grave shafts, were discovered on the proposed site of expansion, to the northeast of the University Cemetery. Further archival research revealed that “at least two late nineteenth century references note that enslaved African Americans were buried north of but outside the enclosed University, in an adjacent wooded area.” In one, Col. Charles Christian Wertenbaker recalls: “in old times, the University servants were buried on the north side of the cemetery, just outside of the wall.” Current research suggests that at least as late as 1898 the area of land was recognized as historically utilized by the University of Virginia for “servant” burials. Since these discoveries, a commemoration ceremony has been held. Some beautification measures have been undertaken: a specially designed fence has been installed; some trees have been planted; and at both entrances an informational sign is posted explaining the significance of the plot. Still, this newly rediscovered sacred space stands in stark contrast to the marble tombs and gilded cenotaphs of the University Cemetery and adjacent Confederate monument. Typically, descendants of the dead reserve rights in a cemetery in the form of some kind of property interest. Mourners and the children of mourners may return from time to time to pay their respects and tend to the graves of their dearly departed. In general, this is a well-established right (though further investigation will reveal that it somewhat less clear than one might expect). However, slavery in America has frustrated many rights, and its long shadow continues to disrupt others. Because of the nature of this property interest, today in Charlottesville, the cemetery rights of the descendants of those slaves interred to the northeast of the University Cemetery are arguably extinguished, or at best unclear. The owner of the cemetery, the University of Virginia, has made no attempt to exclude or to sell the land, nor likely would they, but it is unclear that they could not should they so desire. There are likely other slave cemeteries, on public and private land, that find themselves in a similar situation: specifically, slave cemeteries and African American burial grounds that, because of systemic oppression and discrimination, are rendered unprotected and abandoned—descendants’ rights vanished into nothing. In exploration of this problem, this paper lays out the historical legal landscape of cemeteries, the special issues that arise in slave cemeteries generally, and the application of these doctrines to the African American burial ground in Charlottesville. Additionally, it presents a suggested legal treatment of this special type of property interest: namely, that there should be legislative reform that, in the case of abandoned slave cemeteries, creates both a public easement allowing access and broad statutory standing so that communities can work together to maintain these sacred sites and police against desecration. Further, the development of the rights of sepulture in American common law and the accompanying legal solicitude would allow judges to read this regime into existence, even in absence of formal legislative measures.

INSTITUTION OF PUBLIC LAND SERVITUDE IN THE CONTEXT OF THE THEORY OF REFLECTIVE ACTION OF LAW

The main provisions of the theory of reflective action of law are considered in the article. The manifestation of law reflexes in modern legal regulation is analysed on the example of land relations. Land, as the basis of life and activity of peoples who live in the territory of the Russian Federation, acts not only as an economic good and a natural resource, but also as the object of a number of property and personal non-property relations connected with them. The institution of public land easement is considered by the authors to be a reflex of law, that is, the restriction of the subjective right of a particular owner of a land plot in the interests of society, the state. The issue of the limitation of the right of land private ownership is raised on the basis of an analysis of legislation and judicial practice. The problem of the limits of the action of public easements simultaneously aimed not only at the normal exercise of all property rights by the land plot owner, but also at preserving the favourable state of the environment, at ensuring the subjective rights of other participants in land legal relations, at the implementation of a single land policy of the state indicated in the context of the development of land legislation of the Russian Federation. The conclusion, that the use of the right reflex construction has a beneficial effect on strengthening legal certainty in the face of imbalances in private and public interests in land law, is made.

К ВОПРОСУ ОБ УСТАНОВЛЕНИИ ПУБЛИЧНОГО СЕРВИТУТА

The article discusses legislative changes regarding new public easements, in particular public easements in relation to public lands and public easements for certain purposes. Their differences from public easements that existed earlier in accordance with the classical theory of limited property rights are discussed. The jurisprudence is analyzed in the framework of attracting forensic experts in cases of establishing public easements. Cases of attracting experts in litigation for land surveying are identified.

Private and Public Easements in Russian and Foreign Law

Private and Public Easements in Russian and Foreign Law

Twists and Turns in Ancient Roads: As Unidentified Corridors Become a Reality in 2010, Act 178's Shortcomings Come into Focus

Act 178 is a Vermont law passed in 2006 to resolve Vermont’s ancient roads problem: the problem of legal highways that fell into disuse, were largely invisible to an observer on the ground, and increasingly clouded landowner’s titles. On its face, Act 178’s solution seems simple: by 2010, towns must map the ancient roads they wish to preserve; in 2010, unmapped ancient roads become Unidentified Corridors; and in 2015, Unidentified Corridors are discontinued – seemingly ending the ancient roads problem. Many ancient roads were mapped by the 2010 deadline, and will therefore be preserved by towns while putting landowners on notice about the roads’ existence. However, as Unidentified Corridors become a reality in 2010, new problems with Act 178 are coming into focus. Act 178’s Unidentified Corridor provisions fail to achieve the legislature’s goal to provide a comprehensive solution to ancient roads. Rights like prescriptive public easements, private rights of access, trails, and “clearly observable” highways appear to fall outside the statutory definition of Unidentified Corridors and therefore likely constitute ancient roads that will survive despite the Act. Furthermore, the statutory language allowing a town to reclassify an Unidentified Corridor into a permanent class of road may inadvertently lead to invalid unconstitutional takings which require towns to pay compensation to landowners. In its Unidentified Corridor provisions, Act 178 therefore fails landowners that should be able to rely on the Act to extinguish ancient roads that may now be clouding their titles. Similarly, the Act fails towns that should be able to rely on it to systematically discontinue the ancient roads they do not want, while preserving those they do want. This article analyzes these lurking shortcomings in Act 178’s Unidentified Corridor provisions that take effect in 2010. It does so in three parts. First, is a background of the statutes and common law that together make up Vermont highway law. Second, is a discussion of the ancient roads problem in Vermont and how Act 178 purports to solve the problem. Finally, third, is an analysis of how Act 178’s Unidentified Corridor provisions fail to fully resolve the ancient roads problem and thus fail to achieve the purpose of the Act.

Utah Newspapers Take Different Approaches to Coverage of First Amendment Controversy

Despite standards of journalistic objectivity, some research suggests that media are often critical of religious organizations perceived as overly theocratic or intrusive on First Amendment rights.1 Such situation arose in 2002 over First Amendment dispute involving the Church of Jesus Christ of Latter-day Saints (LDS or Mormon) and local actors. Recognizing that political and social hostility are rooted in different systems of moral understanding,2 this study compares how two competing Salt Lake City newspapers-one owned by the LDS Church (the Deseret News),3 the other not (The Salt Lake Tribune), covered controversy arising after the church and city lost First Amendment battle with the ACLU.BackgroundIn 1998, the church purchased one-block section of the city's Main Street and subsequently built an ecclesiastical park there. The agreement stipulated that the plaza would be designated as public easement between North and South Temple streets, but allowed the church to regulate speech and conduct that were inconsistent with LDS practices.4Contending that the restrictions violated First Amendment rights of individuals using the easement, the ACLU sued the city and church in 1999. Relying on property rights cases, District Judge Ted Stewart (an LDS member) ruled against the ACLU. On Oct. 9, 2002, the 10th Circuit-noting that the sidewalk easement was tantamount to public forum-reversed on First Amendment grounds. The ensuing debates centered on solution that would satisfy both the church and city officials.Literature ReviewThis study is grounded in the literature on newspaper framing and coverage of religion in particular. In short, framing is a central organizing idea for making sense of relevant issues and suggesting what is the issue.5 It is manifest when journalists select some aspects of perceived reality and make them more salient.6 Because journalists' frames can define and construct the issue, newspaper coverage may present slanted perspective by directing readers to consider certain facts and ignore others.7 Such frames can shape social discourse, advance agendas and influence public perceptions about issues and events.8What is salient in the coverage of religion? Underwood noted that the media are often hostile toward religious groups perceived as overly influential on politics.9 Two studies, for example, found that broadcast and print news coverage of fundamentalists emphasized conflict and their activities, resulting in stories that often portrayed them as intolerant and forceful in imposing their views on others.10The LDS Church has received similar media criticism. One commentator noted that the media often depict Mormons as fiercely reactionary and closed-minded.11 A recent study of media coverage during the Winter Olympic Games found that journalists portrayed Mormons as out of step with the rest of the country, while representing non-Mormon Salt Lake City Mayor Rocky Anderson as progressive liberal attempting to move Utah into the mainstream.12 More problematic for the church's image are repeated media references to its influence on Utah lawmakers.The Economist likened the LDS church to an 800-pound gorilla when describing its influence in Utah.13 Furthermore, former Salt Lake Tribune editor James E. Shelledy called Utah quasi theocracy in which LDS lawmakers typically follow the edicts of the church.14Research QuestionsThe literature on framing of religious groups and Mormons suggests that the LDS Church in Utah is particularly vulnerable to secular media frames critical of its role in politics. Also problematic for the church are criticisms the Tribune editor brought to the discourse. The Utah controversy is unique, however, because another contributor to that discourse is the LDS-owned Deseret News-a newspaper emphasizing secular news, while also targeting church members. …

Erosional Trends on Galveston Island, Texas

Aerial photography of Galveston Island, dating from 1952 to the present, shows that storm-related beach erosion was typically followed by periods of slow accretion. Of late, however, it seems that significant post-storm accretion is now less likely because of a diminishing sediment supply. The southwest-moving coastwise drift has been blocked since the 18909s by long jetties at the northeast tip of the island. Further, the old ebb delta which has provided replenishment since the jetties were built shows signs of depletion. Recent evidence indicates that erosion rates along the island9s Gulf shoreline are trending upward. The Texas Open Beaches Act prohibits structures on the public beach, defined as the area between the vegetation line and the low waterline. Erosion from Hurricane Alicia moved the public beach an average of 100 ft inland, leaving scores of private dwellings subject to mandatory removal from the public easement. Despite this, the sale and development of beachfront housing on Galveston Island continues at a brisk pace.

CONTAINMENT AND REMOVAL OF FUEL OIL FROM GROUNDWATER BENEATH A DENSELY POPULATED HOUSING DEVELOPMENT

ABSTRACT A leak from a buried pipeline resulted in the loss of approximately 30,000 gallons of No. 2 fuel oil beneath a housing development in suburban New Castle County, Delaware. After seeping to the water table, the resultant hydrocarbon plume threatened the homes as well as a downgradient stream and an irrigation pond. Site geology consisted of a highly-weathered metamorphic rock overlain by varying thicknesses of fill material. A steep water table gradient existed; the depth to the water table ranged between 6 and 17 feet below grade. Two-inch monitoring wells were installed in public easements and the back yards of private residences. The extent of the oil plume was determined by measuring product thicknesses, which ranged from a few inches to over 5 feet, in monitoring wells. To establish hydrodynamic control and prevent further migration of the plume, two eight-inch recovery wells were drilled and configured with water-table depression pumps. For product recovery, Auto-Skimmers were selected because of the variable water levels and need to leave no measurable product thickness in the wells. The potential for product recovery in other parts of the site was determined by performing unattended one-week recovery tests in the two-inch monitoring wells under non-pumping conditions using an Auto-Skimmer. Based on these results, three additional six-inch recovery wells were drilled. The recovery operation successfully halted the advancement of the contaminant plume and protected the downgradient stream and irrigation pond. In addition, more than 3,000 gallons of fuel oil were recovered from the subsurface. After 18 months, the recovery equipment was removed and only periodic monitoring of the monitoring wells was required.