easement by prescription

Discussion in 'Homesteading Questions' started by Catty, Jun 22, 2006.

  1. Catty

    Catty Well-Known Member

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    We moved to southern Mississippi last September to some land-locked property that had an ancient logging road (50+ years) used as the access to this property. When we bought the house and 20 acres, we were told we had "easement by prescription". Well, someone bought the property surrounding ours. They want to build a new access road that we will share and cut off the logging road. This new road will "y" off so that we have the bottom portion going to our house, and he'll have the other part going to his house. We were fine with that and it was going to be a while before it was done. Today he told me it's going to be done in two weeks. they are clearing, burning (did I mention BURN BAN? He doesn't care.) and putting in culverts as I write. He tells me he wants us to go in halves with an electronic gate to the tune of $15,000.00 or we won't be able to use the gate. He says there's an easement on our side of the fence that we can use to build our own road - but he's putting up the gate in two weeks. I told him we couldn't do that - any choice. Even as it is, he's telling us we have to improve our own part of the road (why would we want to do that when we have the logging road?)

    We were told that the logging road was ours to use - that no owners old or new could take it away. But it's going to be under this guys front yard. (he bought 640 acres, by the way, and is building his house 100 yards from the property line.)

    Does anyone know if we have a right here? What is it? Does he have to let us use the gated road or does he have to decide between that and letting us drive through his front yard or are we gullible and out of luck?
    Thanks for any help, official or otherwise.
    Catty
     
  2. Hammer4

    Hammer4 Well-Known Member

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    You need to look at your deed and see what kind of easement you were given to that logging road. Hopefully it is recorded on your deed, you may need to consult with an attorney regarding this to see what your rights are with regards to that easement.

    Who told you the logging road was yours to use? The previous owner or real estate agent? Did you have a title insurance company involved? I would suggest contacting all of those folks to try and get a better understanding of the status of your easement.

    I really, really advise folks to stay away from land-locked properties with easements or shared driveways/roads...they seem to produce no end of problems for people.
     

  3. Catty

    Catty Well-Known Member

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    thanks, I forgot about the title company. Things seldom go according to our plans. sigh.
     
  4. MELOC

    MELOC Master Of My Domain

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    it sounds like his pushy attitude will force you to use the logging road and drive right through his pretty front yard. he should be a bit more of a team player.
     
  5. SteveD(TX)

    SteveD(TX) Well-Known Member

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    Prescriptive easements are not usually recorded instruments. This is an adverse easement to the servient estate (fee property owner - him), and must be in open use for a certain period of years depending on the laws in your state. If it has been recorded in the deed records at your court house, you will have the best chance of keeping what you have. If he is willing to let you maintain access over his land to your property, get it in writing, make it legal and recordable, then record it. As to your right to have access through his new gate without paying him, you will probably have to go to court to settle that issue. I would probably at least consult with a good real estate attorney.
     
  6. mightybooboo

    mightybooboo Well-Known Member

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    Wow,you sure picked up a jerk for a 'neighbor'

    BooBoo
     
  7. BigBoy

    BigBoy No attitude here...

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    Catty, you're probably not far from my 9acs East of Lumberton.
    The best advice that I (or any of us could give you) is to go speak to a real estate attorney now. Not tomorrow, not next week. Now!
    Good Luck!
     
  8. wr

    wr Moderator Staff Member Supporter

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    Generally, there are provisions within easements or for an easement by way of proving established usage but it is something you will have to find out from a lawyer and it is well worth your money in this case. How long have you lived on this parcel of land? See if you can you dig up any documents at all that show you had been given the right to use the access road any any possible information you have that involves your purchase and head for the lawyers, it's cheaper if you do as much homework as you can for them. You also mention that this person is telling you that you have to upgrade your portion of the road, is he using it, crossing it or does it affect him in any way other than him being a moron and throwing his weight around?
     
  9. Iddee

    Iddee Well-Known Member

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    When I left MS. in 1984, if you had used a road for 7 or more years the landowner could not close it. See an attorney NOW!!!
     
  10. SteveD(TX)

    SteveD(TX) Well-Known Member

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    If he is completely cutting off access to your property from a public road, that's generally illegal. I'm not clear about the reference to an easement on "our side of the fence". He must allow you to have access of some type. The strictest interpretation of the law would suggest that he can't shut down the road that has been used for such a long time. Attorney time. Unfortunately, you should get ready to spend some bucks, either on an attorney or on a gate......
     
  11. Catty

    Catty Well-Known Member

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    Thank you all for your advice and attentions. There is an easement written into our deed that gives us a 15 foot easement along the property line with the third set of owners. Tell you what, though, I'm NOT babysitting!
     
  12. Catty

    Catty Well-Known Member

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    Big Boy
    Nope, we're not that far from you on the large scale - George County near the state line. Howdy neighbor!
     
  13. skruzich

    skruzich Well-Known Member

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    If its in the deed, he can't do a thing about it. he also cannot deny you access.

    if he builds a road and you agree to it, you are liable for 1/2 of the cost if you share it.
     
  14. Catty

    Catty Well-Known Member

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    He TOLD us he was building a road, he did not ask us if we want to go in halves. He even said that we would have access to the road because he KNEW he couldn't legally cut us off, but he wants his front yard to be where the existing road is. It's just nerve wracking and so darned unfair. I keep trying to think of what we have done to make the Man Upstairs so mad at us that He would let us have a taste of our dream 15 years away from retirement only to snatch it back out of view. Not really, I guess I am just feeling sorry for myself.
     
  15. MELOC

    MELOC Master Of My Domain

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    i agree with skru. if you have access via the log road how can he just cut you off? i would use that road until he physically barricades it and then i would seek legal help. if you have access how can he stop you?

    i am editting to clarify my point. i would not put off getting legal advise now. i was going to say seek an injunction but was uncertain if it was the proper terminlogy. seek the aid of the courts after he blocks you out but use the road until he does. do not get suckered into paying for half of his dream road. if i had to pay for a road, i would invest in the other road you said was in the works for the future when you were ready.

    sure you want to have a good relationship with your neighbor but it needs to be mutual. it sounds like he is just doing what he wants with no consideration for you. did you say he has 640 acres? if so, it is strange he needs to place his home right where it blocks your access. i would bet that is his intention. he just wants to eliminate that access AND have you pay for half of his private drive. is he a lawyer or something? lol
     
  16. rambler

    rambler Well-Known Member Supporter

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    You didn't state your sate - tho some here must know where you are. State laws are slightly different, so hard to say.

    I'm not going to try to follow all the directions & back roads & front roads & phone lines on 1500 feet & so on - not really important.

    You need to start with what you have, legally. Sounds like you have a deeded access to your property. Period.

    If you have not agreed to anything else concerning these new plans, then they really don't concern you. Continue using yyour deeded road. He can fence it & gate it, but that is up to him. Gate cannot be locked on you - with key or electronicly or whatever.

    If you ever kinda sorta went along with the new road plans - then you may well be stuck with those.

    He can bully you into changing if that is what you want out of this.

    Legally he cannot change the deed if you don't want to change.

    Your call.

    It would be somewhat cheap to get a cease & stop type of order on him making any changes to your current access road - assuming you have the proper documentation of such.

    Then the ball is in his court, & he can do what he chooses.

    Water over the dam now, but shoulda done your homework & been very protective of your easement from day one. Staked out, very clear, & obvious that it is going to stay there. Period. Does not matter, as you see, what your plans woulda been. No one cares now. Easements are often a very big pain, as you will, for all time, be traveling over someone elses property to get to yours.

    Another lesson for all on these easement deals. They are a headache.

    Sorry you have to go through it.

    If you want to do something about this, do it NOW. The more he builds & moves, the harder it will be to protect what is yours.

    --->Paul
     
  17. Arkie1

    Arkie1 Well-Known Member

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    It sounds suspicious that he is building so close to your property line. Plus he wants to move the road and make it a high tech, expensive gated entry. :nono:

    Have you checked to be sure he's not planning on using some or all of that 600 + acres as a development? Maybe he already has started making plans of cutting it into 10 & 20 acre gated access,southern estates? :eek: :nono:
     
  18. texican

    texican Well-Known Member

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    The neighbor can DO whatever he wants.

    If it's wrong, you'll either have to hire a lawyer, or call the law... either way a lawyer will be involved. And looking into my crystal ball, I'd say your future neighbor relationship will be sour, in both directions...

    I've read dozens of the law book citations involving easements by prescription... and none of the solutions were easy... When the land that I had a prescriptive easement came up for sale, I bought it... cause if Own It, there's no question about easements...

    I came to the conclusion, thru my research, that prescriptive easements are the bread and butter of lawyers... get ready to make some lawyers boat payments...
     
  19. KindredSpirit

    KindredSpirit Well-Known Member

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    It sounds as if you are leaning towards doing what he wants. If you do, I would still suggest a lawyer and a new easement drawn up stating use and maintenance. You need a lawyer because the wording of the easement needs to include your successors and assigns, so when you sell the property your road access will go to your buyer. Otherwise, you will have a difficult time selling land locked property. Be sure and have everything in writing and the easement recorded in the Register of Deeds of your county so a title search will find it when your property sells at some future date. Good luck. That neighbor sounds like they may be difficult in the future.
     
  20. SteveD(TX)

    SteveD(TX) Well-Known Member

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    I would look into the past ownership of both parcels - yours and his. If they were at one time under common ownership at one time, you have an implied easement. Prescriptive easements only arise out of adverse possession - in other words, someone built the house there but never asked permission to use the road. They must be "open and notorious", etc. I'm talking Texas law here, but most states are similar. You may have an easement by estoppel instead. A declaratory judgment may save lots of lawyer costs; you might look into that. Do a little research into these terms and the history of this land. Feel free to PM me if you need to. I have personal and professional experience with easements, and am now involved with a lawsuit against a water district over easements.

    If you educate yourself about the law of easements and start quoting the various laws and find anything recorded about your potential easements or common past ownership, you might just impress him enough where he will cave and give you the code to his gate. He would probably spend $7500 at least defending a suit.