Easement by possession or prescription

Discussion in 'Homesteading Questions' started by Irish Pixie, May 23, 2005.

  1. Irish Pixie

    Irish Pixie Well-Known Member

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    Has any ever heard of this? Easement by possession, or Easement by Prescription? We're having a problem with the County Highway Dept. there are several drainage diversion pipes (under road) on our property (about 7 all along the road frontage) that divert water from the sides of the road to a creek that runs through the middle of our property. There is a problem with one of them, the pool at the bottom of the road pipe isn't deep enough and the water spills over the road to reach our wooded property. We've replaced the pipe once and brought in gravel (last fall) but it's washed out again. DH contacted the Highway Super. and was told he wouldn't do anything about it. Said something about an easement and he wasn't going to deal with it. Well, long story short, there is NO County easement on our property, only a utility easement. I called the Super. back and told him there is no easement and he isn't going to use our property as a water diversion system. He just called back and said that the County Legal Dept. told him that they have an "Easement by possesson or prescription" meaning that it's always been done like that...that the original easement could have been done by a handshake. I said they don't have an easement because they don't have it in writing. He's being MUCH nicer now, and is coming to look at the problem on Wednesday. Which means to me that they don't really have a legal recourse for the water issue.

    Is "because it's been done like that for 50 years" really an easement? Thanks for the help.

    Stacy
     
  2. rambler

    rambler Well-Known Member Supporter

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    Only a qualified lawyer & lots of $$$ in court can _really_ answer your question.

    It is 'normal' for natural water flows to remain as they are, and no easement is needed for such. As in, if the water would generally run in that direction anyhow, then it is up to you to deal with, not the state.

    Now, if they _change_ the flow of water then you have something to look over. But somewhat concentrating the flow with a culvert is not going to get much attention, if they built a ditch & totally changed the flow of water then you got something.

    You are leaving something out - who's road is it, who's culvert is it? I can't grasp why you paid for the fist rebuild, now the county is supposed to pay for the 2nd rebuild, but it is not even the county's road because there is no easement??????

    There is a lot more to this, and all little points would need to be fleshed out.

    The county can do some sort of squatter's rights, if something has 'always been done that way' for a period of time, then that becomes the way it is period. Each state has different timelines, guidelines, and specific rules on what is covered, but you likely will come under this rule if you push too hard - inluding an easement for the road written onto your deed.

    Figure out more details of what is going on, and speak softly until you get it all figured out. Generally the county is always right unless you are willing to spend a bundle of cash with the lawyers, might want to go for some good middle ground....

    --->Paul
     

  3. Irish Pixie

    Irish Pixie Well-Known Member

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    The logging road that washes out is 30' from the center of the road- def. on our property. The "pool" (that washes out our logging road) that is underneath the County's under road pipe is within the 25' from center of road that the County is supposed to maintain.

    We put in a new pipe last fall because we had the wooded portion of our property logged, they added gravel for ease of getting their trucks in and out. We need to get down the logging road to get out the timber that the logging company left for us for firewood. As it stands right now we don't have access to our wooded property because the logging road has been washed out by the diverted water. Our property (113 acres with a lot of road frontage) handles all the water for over two miles up the hill. It is channeled via ditches along the road (both sides) and diverted under the road by County built pipes. Without using our property for a water diversion system the County would be SOL. All we want is them to fix the one place that washes out the logging road.

    Stacy
     
  4. SteveD(TX)

    SteveD(TX) Well-Known Member

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    If the drainage ditch or pipe has been there for many years, they probably DO have a prescriptive easement. This means they essentially have a right to keep it there, since it's been there for many years. It doesn't necessarily have to be a written or recorded easement. The property owner still retains fee ownership of the land. In other words, the underlying land is still yours to keep, sell, etc. But you can't mess with or alter the ditch or pipe. Typically, whoever holds the easement (county, utility co., etc), has to maintain the easement, which means rectifying situations such as yours.
     
  5. rambler

    rambler Well-Known Member Supporter

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    My farm is near the end of a county ditch that runs through the middle of the farm. There is over 10,000 acres of land above me that drains through my farm. I'm well aware of water issues.... ;) When the town north of me gets over 2 inches of rain, I lose 5-9 acres of crops because the water rushes down to me, fills the ditch, runs backwards through my tile and floods a field. It takes 3 days for the water to lower in the ditch & drain out of my field. Crops die in 48 hours..... I don't get any relief from the county either.


    So, anyhow, the logging road is owned by you, and it washes out. The county road near there has a culvert that is aiming water at this spot, making the problem worse.

    However, without their road or your road there, the water would generally flow through this general area anyhow, correct? It is the general slope of the ground that the water would generally pass through this section of land.

    The county needs to maintain their road, and if you can prove their actions have caused your road to wash out then they should also rebuild your road.

    However, if your road was not built high enough/ big enough culvert to handle the water to begin with, it really is your own fault, not the county's. No matter how often your 'substandard' road washes out, only yourself to blame. Need to build it to handle the flow of water that is there.

    Again, if you can prove the county did something to increase the flow of water, did something to make an exsisting road that never had problems now has problems, then you have a case against them.

    If you build your road long after the county road was well established (as this sounds?), then likely you just didn't build your road good enough. That pretty much is your issue, not the county's. The countty may also say your logging is what is causing the excess flooding/ erosion. Just some possibilites.

    I make a lot of assumptions here, as your discription of the county road & the logging road wasn't real clear to me - sorry I'm kinda dense sometimes. :) I hope I'm getting the general idea across tho of who is responsible for what.

    Yea, rereading your description: Your logging road is yours, and you need to build it to withstand the local conditions. The county has a 50' (25 each side) easement for their road, and they are well, well within their rights to put drain tile under the roadbed continuing the natural drainage of water from one side to the other. You really have nothing to stand on here, you need to put in a bigger tile & do better road building. That is likely what they will tell you. The county has no need for a fruther easement than the 25' they have. Water flow is always considered a natural thing, you need to build for it yourself. I would put in a tile at least as big as the county has under the road. If you need to put in 2 rather than one big one, remember pi - (2) 10 inch tiles are _way_ smaller than (1) 20 inch tile, so be sure to size things properly!

    Sorry, but this is all your issue as I see it, I would not want my county wasting money building private roads for others.......

    --->Paul
     
  6. Mike in Ohio

    Mike in Ohio Well-Known Member

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    Well Stacy,

    Maybe they have a prescriptive easement and maybe they don't. I figure it would take a nice long court case to figure out. It would probably be in both parties interest to find a compromise that both can live with. This would certainly be better than spending a lot of money on lawyers.

    I guess it also depends on whether this is a breadbasket of a problem (costwise) or a bread truck.

    As usual, just my 2 cents.

    Mike
     
  7. minnikin1

    minnikin1 Shepherd

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  8. amelia

    amelia Well-Known Member

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    I took a quick look at the New York case law regarding easements by prescription. The basic rule is that a party asserting the existence of a prescriptive easement must prove, by clear and convincing evidence, that the use of the subject property was (1) open and notorious, (2) continuous, (3) hostile, and (4) under a claim of right, all for the requisite 10-year period.

    The case law further defines what each of those elements means, and it provides hundreds of examples of how they are applied in individual situations.

    Generally, the "open and notorious" element means that the use must have been out in the open for everyone to see, and it necessarily requires that the owner have known about it. The element of "continuity" means that the use must have been uninterrupted for the entire 10-year period. The elements of "hostility" and "under a claim of right" require that the use NOT have been permissive in nature. Evidence of an agreement to allow the use, or to make a neighborly accommodation, defeats the existence of a prescriptive easement.

    These are simple concepts to grasp in the abstract, but in order to know how they will apply in your situation, you really need to spend some time reading the case law. If you're interested in doing that, I would suggest a very reasonably priced public internet service called VersusLaw, which for $11.95 per month (cancellable at any time) you can get access to all of the New York cases and the ability to search them. If that sounds like too much, I'd recommend going to the nearest courthouse law library and getting a hold of a real estate deskbook for New York. There will undoubtedly be a section on easements by prescription.

    Good luck!
     
  9. rambler

    rambler Well-Known Member Supporter

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    I'm trying to understand this, any help will help. :)

    You can't change the general flow of water. It goes downhill, there is no easement needed for the natural flow of water.

    The county has built a road some time ago, and put culverts under their road to allow the water to drain from the uphill side to the downhill side. This is a universal type of thing, water flowing over the sureface follows downhill paths. Culverts are a standard way to do this, accepted practice.

    These folks built a private logging road next to the county easement. The water flowing downhill (through the county culvert, but naturally flowing all the same) is washing out their private road.

    Why is this a problem the county should fix? In all such cases I've heard about, there is no issue here. The land owner needs to build a road that is able to handle the natural water flow that comes across it.

    Yes, the county culvert somewhat concentrates the water flow. But it's been there 'forever' and that amount of water would rightly be expected to flow through this section of land with or without the county road there. The land owner would need to plan for the same amount of water to flow under (or over as is happening) their private road either way.

    I just can't see how this is anything but the land-owner's problem?

    Can someone shed some light on this for me?

    In many states, one can tile their property, end the tile line on the property line, & let the water flow. It is the natural flow of water downhill, so long as you do not change where the water is headed, you are doing nothing wrong.

    I can't see what the county is doing wrong here? Looks like the property owner put in a small road with a too-small culvert, & so it washed out. It's up to them to fix it, isn't it?????

    What am i missing?

    --->Paul