Conservation Easements

by Herb Schwartz
August 4, 2001


This is the beginning. This is the end. This is the last in a series of articles about ?conservation easements.? This is the beginning of ?conservation enhancements.?

A very good friend and I were walking on a suburban country road, a macadam road that was part of a planned subdivision. The paved road ended and we came to a rarely used road on the boundary of the national forest. The road was no longer defined. It was an old logging skid road being reclaimed by the forest. We stopped, turned around, and headed back. He was an editor with a statewide real estate law publication. We talked about my idea for his publication, a ?white paper? article, an authoritative exposition of the subject of the last article I wrote for Branching Out in this series about Conservation Easements, which was entitled Direct Action. He noted that the head of his publication was concerned about the tone of my article in Branching Out; it was too ?chatty? for a legal publication; it needed to cite authority; it had to be presented as if it were a legal argument. I assured him that I understood how to write an ?authoritative? article, that I had been an experienced appellate brief writer with an unusually high success rate winning appeals for my clients. He was reassured. I would send him a ?legal? outline based on Direct Action.
The Direct Action article was like that skid road at the end of the paved road. The skid road was being reshaped according to the needs of the forest. Similarly, Direct Action was shaped by the needs of the people who, in turn, responded to the needs of the forest. The article was for landowners who were not going to subdivide their land and put in a paved road. They needed a remedy that wasn?t necessarily going to be found in the conventional legal establishment of a conservation easement, a paved path with a planned legal scenario.
We are a ?common law? country. The common law comes not from the legislature but from the needs of the people, remedies which evolve out of changing needs and circumstances. It is the sapwood in the judicial tree; the source of growth and change. When a person comes to a lawyer with a problem that won?t fit inside the box, then it is time to create a new box. Interlocking restrictive easements managed by neighbors? It?s an interesting idea, but can it be put into a legal box? Some building contractors both design and construct their buildings. My article in my friend?s law publication will design and build a legal home for landowners who might not otherwise grant an easement to a non-profit land trust made to ride on the paved road of ?conservation easements.?
It may be time to start a significant change in the common way of owning or purchasing land. Ever since Cartesian coordinates were branded on our maps to define boundaries, without much regard to geophysical features, we have been more concerned with individual lines on parcel maps rather than shared watershed interests. If every piece of land was sold with reciprocal easements, if every buyer asked every seller and every realtor, ?Who are my watershed neighbors?? ?How many owners are in the viewshed easement?? ?How often do the sustainable forest easement land owners meet each year?? we might have a new perspective on our relationship with neighboring land and neighboring landowners. Opening up the legal box of possibilities for landowners will allow diversification of legal approaches appropriate to the very different circumstances of landowners. Urban landowners may start to see ?easements? as ?deed enhancements.? Easements can become standard tools which enhance and protect property as well as facilitating immediate contact with a next door neighbor as well as neighbors at the top of the road. Perhaps the ?three rules? of purchasing real estate could be changed from ?location, location, and location? to ?location, location, and easements.?


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