Right of ways.

tailwagging · #1 06/14/12, 01:40 PM

Who has the right to use right ways?

We have a right away that runs down the side of our land to the acreage behind our's. My son owns the land behind and doesn't want anyone besides family to go back there. he also owns the lot next to it that has another right way that runs on the other side of our neighbor's land. so he has two ways to get to his land. There are no utilities or lines on his land to have to maintain, it is just land.
He (us too) would like to put up a gate or chain across the right way that runs beside us.
can we legally do this?

Yvonne's hubby · #2 06/14/12, 01:53 PM

As with anything else.... you can do what ever you want to do.... as long as nobody cares. If no one else ever uses the road... then they dont care and you can probably get away with putting up a gate. However... if someone does have a need to keep the road open... you may have to take it back down. The first thing I would do is check my deed for any mention of these rights of way... and then check my neighbors deeds (they will be available at your local county clerks office) to see if they have ever obtained legal rights of way across your property. (this often does not show up on your deed) Then depending upon state laws which vary widely from state to state there might be that old favorite... easement by usage... meaning that if the road was open for a long enough time, and others have used it, it must remain open... but if you can gate it, for a long enough period of time without anyones complaining, it can remain gated.

DavidUnderwood · #3 06/14/12, 03:14 PM

Right of ways are owned by someone.
That someone usually determines who uses it.
BUT...in NC, not ALL r-o-w's are deeded.
Check at register of deeds office.

watcher · #4 06/14/12, 03:19 PM

Usually if you contact who ever has the right to use the way and talk to them they'll have no problem with you putting up a gate. As long as you either use a combination lock and give them the combination, give them a couple of keys to the lock you use or allow them to place their own lock on it as well so they can get in when needed.

SteveD(TX) · #5 06/14/12, 03:30 PM

Quote:

Originally Posted by tailwagging

Who has the right to use right ways?

We have a right away that runs down the side of our land to the acreage behind our's. My son owns the land behind and doesn't want anyone besides family to go back there. he also owns the lot next to it that has another right way that runs on the other side of our neighbor's land. so he has two ways to get to his land. There are no utilities or lines on his land to have to maintain, it is just land.
He (us too) would like to put up a gate or chain across the right way that runs beside us.
can we legally do this?

Maybe. Rights of ingress and egress to land is usually granted by easement. Right-of-way more commonly refers to government owned roadways and access. If there is an easement granting right-of-way to a private party, it should be recorded at the local county clerk's office or whatever you have in your state where legal instruments are recorded. The specific terms of the easement will be in the recorded instrument. A title company can advise you or your local county clerk, etc.. Good luck.

Common Tator · #6 06/14/12, 08:19 PM

When you bought the property, you should have gotten a title search. Any easements should have been recorded. If nobody that has a right to them ever uses the roads, and there isn't a recorded easement, I would gate those roads and lock them. As someone else said, even if there is a recorded easement, you can still put up a gate. Just provide them a key, or have them provide their own padlock and loop it through yours and into the chain, so each padlock acts as links to a chain.

The phone company and the electric company have easements across our land (power lines run through it). We keep our gate locked. They have their locks on our chain, and we have ours. Occasionally someone with a key from the power company or the phone company comes along, and they aren't employees of the company. Just someone who obtained a key and decided to go snooping around. I run them off with prejudice. Possession of a key doesn't give you a right to enter someone else's company.

tailwagging · #7 06/14/12, 08:40 PM

My son owns the land that the driveway/right of way is to and ends in. I just wanted to be sure that I can legally lock out anyone (ARs snoops) that might like to take a walk down it.

oneokie · #8 06/14/12, 08:50 PM

Quote:

Originally Posted by tailwagging

My son owns the land that the driveway/right of way is to and ends in. I just wanted to be sure that I can legally lock out anyone (ARs snoops) that might like to take a walk down it.

Only if your sons property is the only real estate that the right of way is attached to. Others gave good advice about checking the real estate filings in the county courthouse.

tailwagging · #9 06/14/12, 09:15 PM

yes it is the only land it goes to. just didn't know if a right of way gave EVERYONE the right to down it.
thank you all for the answers.

Wolf mom · #10 06/14/12, 09:40 PM

Here in AZ if you have a legal, deeded easement (right of way) over another person's property, they can put up a gate, but can NOT lock it. You, as the land owner can not prevent someone or anyone from using it. BTW: If the easement is not used over a number of years, (10?) it can legally be nullified.

(I was in a law suit over just this topic - I ended up selling the easement and made a nice bunch of money due to where it was located & the motivation of the land owner not wanting my easement bisecting their property.

On the other end, if there is no legal, deeded easement and people are using a portion of your property to go from one place to another across your land, you need to be aware that after a number of years (10?) it automatically becomes an easement & you loose that area. And, yes, in that case you can & should prevent people from trespassing.

Common Tator · #11 06/14/12, 10:20 PM

Quote:

Originally Posted by Wolf mom

Here in AZ if you have a legal, deeded easement (right of way) over another person's property, they can put up a gate, but can NOT lock it. You, as the land owner can not prevent someone or anyone from using it.

I'm pretty sure that you are mistaken here. An easement is granted to a specific party. Not to the whole world.

The easement across my land is specifically granted to the electric company, and to the phone company. Them, and their heirs and assigns. But as I said above, when other yahoos show up with a key and let themselves in, I run them off. If they don't go on their own steam, I'll have them arrested for criminal trespass.

Lets say that you own property, and there is another property behind yours that is land locked, but there is a recorded easement on file. The neighbor that has the easement across your land covets his privacy as much as you do. You put up a gate, and he puts his own padlock on it, and you put yours. Nobody else has a right to enter the property, and nobody else is listed on the easement. You are well within your rights to gate and lock the property, as both of you have access to your respective properties.

Sawmill Jim · #12 06/14/12, 11:40 PM

Good grief it the right of way ends at your son's property gate it

No one else has any business there with out his ok

Wolf mom · #13 06/15/12, 09:54 PM

Sorry, Common Tator, we have easements going across multiple properties to get to other properties that have been sub-divided. We even have our "road" going through a portion of the national forest. The forest service gave us the right or easement to do so.

That's done a lot here in this area (remember we're still the wild west) where someone homesteaded hundreds of acres, gave it to the kids & they sold off pieces making deeded easements to get to different plots.

Easements are not just for one person or for utility companies.

The easement to where I live borders another person's land. He divided 5 acres into 2 - 2 1/2 acres & built a spec house using my easement. That's legal as it is HIS land underneath my easement. Easements are sort'a like an overlayment on a piece of land. I may own the easement or right-of-way over his land, but he owns the land.

And NO you can't legally lock a gate on an easement that goes to another persons property as the sheriff, fire trucks, and the owner has to be able to get to his land. Nor can you specify who can use the easement. What happens if the land owner at the end of the easement decides to divide his property? Someone mentioned ingress & egress - so true!

texican · #14 06/15/12, 10:28 PM

Quote:

Originally Posted by Wolf mom

Sorry, Common Tator, we have easements going across multiple properties to get to other properties that have been sub-divided. We even have our "road" going through a portion of the national forest. The forest service gave us the right or easement to do so.

That's done a lot here in this area (remember we're still the wild west) where someone homesteaded hundreds of acres, gave it to the kids & they sold off pieces making deeded easements to get to different plots.

Easements are not just for one person or for utility companies.

The easement to where I live borders another person's land. He divided 5 acres into 2 - 2 1/2 acres & built a spec house using my easement. That's legal as it is HIS land underneath my easement. Easements are sort'a like an overlayment on a piece of land. I may own the easement or right-of-way over his land, but he owns the land.

And NO you can't legally lock a gate on an easement that goes to another persons property as the sheriff, fire trucks, and the owner has to be able to get to his land. Nor can you specify who can use the easement. What happens if the land owner at the end of the easement decides to divide his property? Someone mentioned ingress & egress - so true!

You "Can" specify who can use the easement, in the easement document itself..... just depends on the party getting the easement will 'accept' those limitations or not. Sign, and it's a deal... most walk away. A relative was willing to give another relative an easement across his place, but he restricted it to him and his immediate family... and not any and everybody that the grantee wanted to let use it. The grantee relative refused, and had to use an alternative access point to his property.

Give an easement to someone to access property, and that right is transferable to anyone who buys that property in the future (subdivision purgatory!).

Give a road easement to the county or state, and every ---------- is going to be running up and down the road.

I fought hard for an easement to my place, with zero luck. Ended up buying the property.... if I own it, I automatically give myself an easement!

Folks behind me wanted me to give them a legal easement ("may" have a prescriptive easement) so they could build a home. Wouldn't/didn't... bank didn't want to loan money without the title clean, with clear access. Ever since they mentioned building, I've let my road go to heck... takes longer to make the two miles to the highway, than it does to make the next 14 miles to town!

Common Tator · #15 06/15/12, 11:08 PM

Quote:

Originally Posted by Wolf mom

Sorry, Common Tator, we have easements going across multiple properties to get to other properties that have been sub-divided. We even have our "road" going through a portion of the national forest. The forest service gave us the right or easement to do so.

That's done a lot here in this area (remember we're still the wild west) where someone homesteaded hundreds of acres, gave it to the kids & they sold off pieces making deeded easements to get to different plots.

Easements are not just for one person or for utility companies.

The easement to where I live borders another person's land. He divided 5 acres into 2 - 2 1/2 acres & built a spec house using my easement. That's legal as it is HIS land underneath my easement. Easements are sort'a like an overlayment on a piece of land. I may own the easement or right-of-way over his land, but he owns the land.

And NO you can't legally lock a gate on an easement that goes to another persons property as the sheriff, fire trucks, and the owner has to be able to get to his land. Nor can you specify who can use the easement. What happens if the land owner at the end of the easement decides to divide his property? Someone mentioned ingress & egress - so true!

Sorry, Wolf Mom, Easements can be and usually are restricted as to who may use them. My original advice to the OP was to read their title search, because easements are recorded. See what the recording says. THAT is who may use it.

Your easement is very different from ours. I don't know if you read your easement, but I read mine, and I researched it.

From what you described, your property has been divided and subdivided. Your advise has nothing to do with the OP's question. Please read it again. He said: "We have a right away that runs down the side of our land to the acreage behind our's. My son owns the land behind and doesn't want anyone besides family to go back there. he also owns the lot next to it that has another right way that runs on the other side of our neighbor's land. so he has two ways to get to his land. There are no utilities or lines on his land to have to maintain, it is just land.
He (us too) would like to put up a gate or chain across the right way that runs beside us.
can we legally do this? "

So if the OP owns the land the right of way is on, and the only other land owner that needs to use it is his own son, of course they can gate it and lock it! Nobody else has any business going back there.

Edited to add this: An easement does not allow the easement holder to occupy the land, or to exclude others from the land, unless they interfere with the easement holder's use. In contrast, the possessor of the land may continue to use the easement and may exclude everyone except the easement holder from the land. For instance, if Alvin owns a piece of property and grants Barbara a right-of-way on the road across the property, Barbara has an easement in Alvin's property. Barbara may use the road, but may not stop others from also using the road, except to the extent that their use interferes with her own use of the road. Alvin may exclude everyone except Barbara from crossing his property, while continuing to use the road himself. Easement Basics - FindLaw

Plowpoint · #16 06/16/12, 02:12 AM

I don't think there is any rule or law stating that a gate cannot be locked due to emergency access. I know in the State of Maine, if there is a fire, a fire department has the right to cut the lock to put out the fire.

I am not sure about other departments like police, marine patrol and game wardens. I assume that they have very specific search warrant parameters, but common sense says that if a person was say hurt in an ATV accident on their own property, and your gated road was the closet road to extricate that seriously hurt person, I would think the police and EMS would just cut the lock and gain access if your key could not be readily be found. Even if it did go to court, the Judge would simply say, "What were the damages done"? A person would look pretty silly if they were out $3.50 for a cut lock and wanted to sue someone over it.

Original Poster: Possession is 9/10's of the law. Put up your gate.

salmonslayer · #17 06/16/12, 06:45 AM

I think the OP got the correct answer from Sawmill Jim but speaking of easements...we just bought another acre adjoining our property and while we were at the title company the lady related that she was working on a 40 acre parcel that someone bought a couple years ago and is now trying to sell. Turns out he never had a survey and now the buyers survey shows his fence line is between 20 and 50 feet onto 5 different adjoining landowners properties and the access road he thought was off of a county road directly onto his property actually crosses another landowners property for about 60 feet.

She said he was trying to use quit claim deeds to clean it all up except the owners of one parcel have died and the estate is in probate and the owner of the property where the access road is is fighting the easement and he is going to have to put in a road across another landowners property who will grant an easement...at considerable expense. I asked about adverse possession and she said that isnt as easy to push as a lot of people think and it would take so long the buyer would be long gone.

We only have a utility easement that just nicks a corner of our place thankfully.

**Terri** · #18 06/16/12, 08:24 AM

When I look at the dead to my little homestead, I see that the utility company has the right of was. JUST the utility company! If somebody else goes back there they are trespassing.
Your deed should say who can use the right of way.

PaulNKS · #19 06/16/12, 12:48 PM

The laws vary from state to state. A person needs to check and see what was recorded and conveyed.

Here, one of the farms we own has the big double utility poles that carry several high line wires and it runs across that farm. When the utility company got the easement, for some reason, it didn't address their rights "of ingress and egress." So, when they got an attitude with us, we locked the gates. They threatened us. We told them that even though they had the right of easement, they had no rights of ingress and egress. Therefore, the ONLY legal way was to come across the easement crossing the other farms to get to it. We didn't have to allow them access from the road. It sure ticked them off but, we weren't putting up with their mess and we were using that field as a hay field and didn't want them to rut it up. So when they are there, one of us stands nearby watching, and they know if they so much as step one foot off the easement, we'll call the Sheriff. lol

meanwhile · #20 06/16/12, 04:04 PM

We have various "right of ways" and "easements" around on our property. Most are only for the Duke Power Company. They just let people put gates but then they come along and will insert their own lock in a link of the chain. When I called them about a gate we put up, they just said to put it up whenever I wanted and later they would add their lock.

Other right of ways are for property owners behind us. Only they can use them. No one else has any right to drive on it. Same with a couple of others we have. Only the person who owns the land has the right to it.

We put up several gates - one with permission of the property owner further down. Another with the agreement of three property owners.

Good luck.