5409.17,40 Page 1 of 3 FSH 5409.17 - RIGHTS-OF-WAY ACQUISITION HANDBOOK WO AMENDMENT 5409.17-91-1 EFFECTIVE 9/3/91 CHAPTER 40 - RELATED MISCELLANEOUS ACTIONS 41 - EASEMENT TERMINATIONS. For a variety of reasons, it is sometimes necessary or desirable to terminate an easement in whole or in part. The method used depends on the wording of the original conveyance and the facts relating to the need to terminate. 1. Standard Termination Clause. When the termination clause in exhibit 1 at the end of section 11.1 has been used in the conveyance to the United States, the termination is very simple (sec. 12.5). 2. Termination for Nonuse. There are many easements that provide for termination after a specified period of nonuse. Failure to make use of the easement for the specified period results in its termination. As a practical matter, it is difficult for landowners (grantors) to clear their title of the encumbrance of the easement after fulfilling the condition of nonuse without help from the agency administering the easement. Therefore, upon request of the grantor and fulfillment of the condition of nonuse, Regional Foresters shall execute an affidavit in recordable form stating the facts of nonuse. When the grantor has recorded the affidavit, the grantor's title is effectively cleared of the easement encumbrance and so recognized by title companies and future purchasers of the property. Draft each termination instrument individually and have it approved by the Regional Attorney before execution by the Regional Forester. Carefully review the particular easement deed to the United States and put the exact language of the termination clause in the termination instrument. When only segments of an easement terminate, it is necessary to modify the instrument to fit the facts. Closure of roads to traffic for short or long periods does not constitute nonuse as long as the road remains on the forest development road inventory records and the usual measures to preserve the road for future use, such as maintenance of drainage, are taken by the Forest Service. 3. Termination Upon Abandonment. Many older easement conveyances provide that the easement terminates only upon abandonment. Establishing the fact of abandonment may be quite difficult. Forest Service officials have no authority allowing them to abandon Government property, including easements. They can however certify the facts of nonuse and the intention of the Forest Service to make no further use of the easement. Such an affidavit together with other evidence may establish the fact of abandonment to the satisfaction of the grantor and title companies. Prepare and process such an affidavit in the same manner as described for affidavits of nonuse in item 2. 4. Other Terminations. Some easements have no provision for termination. When these easements are no longer necessary, and in other cases where Forest Service-furnished certificates are not sufficient to clear the grantor's title, it may be equitable to reconvey the easement to the grantor. Provisions of the Federal Property and Administrative Services Act (63 Stat. 377; 40 U.S.C. 471) provide a means of disposing of the easement in these circumstances (FSH 6409.31, FPMR 101-47. 313-1 and FPMR 104 G-47-602). Dispose of fee title rights-of-way under the provisions of the Small Tracts Act (FSM 5450). Reconvey easements or portions thereof under provisions of Public Law 120 (5 U.S.C. 567) when the original conveyance involved a mistake, misunderstanding, error, inadvertance, or the title is insufficient for the purposes for which the Government acquired the easement. Instructions for reconveyance under this authority are in FSM 5450. Furnish the person responsible for maintaining the landownership status with copies of all termination documents to become part of the landownership records and for appropriate notation of the landownership status records. 42 - CORRECTION DEEDS. Use correction deeds to correct typographical or other errors in the original conveyance that do not lessen the quantum of the estate conveyed. Do not use correction deeds to reconvey portions of easements taken by mistake or to reduce the interest originally conveyed. If you have checked the original conveyance carefully, the need to obtain correction deeds seldom arises. It is not necessary to correct minor errors that you discover that do not cause any trouble in use or administration of the easement. Whether or not to take a correction deed depends on the circumstances. Seek the advice of the Regional Attorney as to the proper action to take in each case. Request the Regional Attorney to draft the instrument if one is necessary. 43 - SUPPLEMENTAL CONVEYANCES. It is common to acquire additional interests where the Government already owns a limited easement. An example would be the acquisition of an unlimited easement for a road where the original easement was for a road to use only for administration and protection of National Forest land and resources. In still other cases the need is to acquire additional width to accommodate reconstruction of the road. In recent acquisitions, it is possible to use a supplemental deed that enlarges the original grant to include the additional interests needed. Supplemental deeds can only add to the interest originally granted. They cannot reconvey any interest previously granted. Therefore, supplemental deeds should convey only the additional interests sought; as a general rule, they should not contain a restatement of the original grant. Ask Regional Attorneys to draft supplemental deeds individually. Furnish them with the original deed, as well as all the facts related to the additional interests sought. Supplemental deeds submitted for title approval must include the original deed. If the Regional Attorney advises that a supplemental deed is not appropriate, treat the acquisition of the additional rights as if it is a new case.