Driveway easement question...help?

[KFC911]

Originally Posted by rusnak

The issue is probably whether the easement runs or is abandoned.

Your case will be that it was abandoned because of some action that your family did within the easement during the last 35 years. Easements do not run in perpetuity, period. Only when an agreement is recorded across multiple parcels will that agreement run with the land.

Does grass growing in a vacant field count as action on our behalf ?

[rusnak]

Originally Posted by KC911

Does grass growing in a vacant field count as action on our behalf ?

Definitely not. I would make the argument that since they are using another driveway, they have abandoned the easement, which was for vehicular access.

We have removed easements for canals that are no longer in use, for irrigation ditches, railroad (much more difficult) tracks, etc. Easements do not live on forever, or you wouldn't have been able to build half this country. There would be old Indian trade routes, wagon trails, steamboat and cable car routes, telegraph lines, and the like that would prevent new construction.

[SoCal911T]

I work for a utility agency that has easements dating back to the '30s & '40s.
N.C. laws may differ but in San Diego County all easements are on file at the County Recorders Office. It wasn't recorded, it's not a valid easement. Also, our easements once recorded, never expire and are not affected by 'non-use'.

[RWebb]

Originally Posted by rusnak

Definitely not. I would make the argument that since they are using another driveway, they have abandoned the easement, which was for vehicular access.

...

this sound pretty good to me -- also, if you have taken some action in reliance on their abandonment it looks even better

Good Luck with this

[KFC911]

Originally Posted by rusnak

Definitely not. I would make the argument that since they are using another driveway, they have abandoned the easement, which was for vehicular access...
.

That'll be one of my points...thanks!

Originally Posted by RWebb

this sound pretty good to me -- also, if you have taken some action in reliance on their abandonment it looks even better

Good Luck with this

You know, when I was a kid, my grandfather would use a barn post to practice with his .45 that's right adjacent to the easment...I could set up another target post on the other side of the easement at say 50 and 100 yds. My uncle already has a range there for scoping in rifles but one can never have too many places to shoot. I'd be shooting in the direction of the LEO's property and since he's affected also, and not too happy either, I bet he wouldn't mind .

Originally Posted by georgeinhere

my experience is that you can create an easement through use but you cannot lose one through non-use. An easement is a cloud on a title that can only be removed by the individual that benefits.

I hear ya. The driveway she and her brother have been using is a "better", more logical driveway in every aspect imo (drainage issues, "our easment" would be on a bad curve, etc.). Like I stated, I'm betting the "real" reason is for water, and I do not believe the easement grants that. Thank you all!

[nota]

depends on if it is only an access esmt or a utility esmt
and if it is public right of way or private property esmt

if it is a deed record no it will not go away
and nothing done or undone will change the record
just as a un-used right of way is not abandoned or claimable

I was a public land surveyor for the county water dept
we had utility esmts on nearly every property in the county
walls fences bushes trees even structures built on esmts are very common
our rule was do what ever and restore the site to the same conditions
if we damaged anything on the esmt we paid or replaced it

talk to your local county survey office
they know the local/state laws but as public officials
they will not bill you for asking questions unlike a lawyer


and no a septic tank drain field is not an access or utility use
that you should be able to stop
an esmt only grants certain right of use not unlimited rights or any ownership
a water line from an existing pipe to a property would be a proper use
dumping drainage water on your land is not a proper use

[KFC911]

Thanks nota...

[rusnak]

It's not a utility easement. The issue is an access easement, and whether it has been abandoned.

Your secondary argument would be that even if the easement was not abandoned (it is), then all it grants is street access, not water utilities, nor sewer, which is a separate easement. Property rights are famously like a "bundle of straws". The neighbor has one straw, not two, not three. You have the rest of the bundle.

[Rusty Heap]

As the OP seems to have his easement questions mostly clarified, may I interject my situation.

I've live on 5 rural acres, last house at the end of a 1 mile road with maybe 10 houses along it.

Single lane gravel road weaves mostly along the property lines, 20 foot easement for ingress/egress/utilities each side of the property line.

No HOA and mostly neighborhood volunteer or self maintenance by owner of brush clearing and keeping tree branches trimmed back.

So of course I have some extreme tree hugger neighbors who demand that I do not trim branches back on their property. They are happy with brush almost scraping down the side of their cars or branches hanging low overhead.

So what is clearly defined as "clear access"? They grant me the right to drive across their property, but in the last 10 years tree branches and black-berries have started to intrude 2 feet over where the "old edge" of the single lane gravel road existed, and the driving path has slowly inched over to the opposite rode side of Tree Hugger, where now tire tracks of UPS trucks or even my own cars are starting to drive off the existing gravel road bed into softer dirt (still withing the +/- 20 foot easement) but off of the existing road path.

While asking nicely can I just trim 1 foot off the branches, you get an harsh yelling match back NO, just let the branches brush down the side of your car, or move the road over.


doesn't help that I also have a ~12' tall truck camper while loaded on a full size Dodge, as then low overhead branches become an issue too, and I've been scream at that it's not his fault "I bought too tall of a truck camper" Let the branches brush against it..........

Just some back ground, this guy is the local villiage idiot, who will take people to court in a heartbeat and generally is a old hippy control freak that honestly is mentally unstable.

I almost just want to spend $300-400 on more gravel to widen the road away from his property rather than deal with his ranting and getting in MY face for HIM not keeping simple small brush trimmed back.

so what is the definition of a "clear easement"? The right to drive across a persons property, but what about "reasonable clearance" so you don't get car damage?

I just want a 1-2 foot setback of the tree branch tip to the side of gravel road driving path, but to Tree Hugger that's asking too much.

thoughts/opinions factual experience or peoples solutions?

[Groesbeck Hurricane]

KC,

Question, if they wanted only to lay a potable water line to the property and this was the best access point what would you be willing to trade so they could lay the potable water line? I'd think trading the driving easement for a specific easement allowing ONLY potable water line would be reasonable.

I would NOT want their gray water dumped onto my land! It is bad enough their gray water is dumping within 10000 feet of your house and possibly your own well/water source! I do not like septics.... Many people up stream from me have their septic lines going straight into the stream bed. County does not care, zero enforcement.


Dave,

Do you have a sprayer? Do you have access to herbicides? Do not do anything illegal!!

You need to know specifics to your state and county. In my mind clear access with ingress/egress access means no brush or trees or shrubs. I WOULD want the brush and shrubs growing but you would not see me letting them grow to where they interfer with my neighbors vehicles. There are some limits on how far I'll push the tree-hugging! I like having a woody barrier around my property!

[RWebb]

generally, you cannot trim branches back on their property

I looked into this once, and most cases are two property owners side by side (share a lot line) - you can trim up to your property line w/o permission.* At a guess, if it has ever been decided by a ct. in your state it was that fact pattern, not an easement.

You could borrow a copy of a NOLO Press book from your library called "Neighbor Law" - it is designed for non-attys. Next step is to look at your state laws, then county, etc.

* Things get gnarly when fruit from their tree falls onto your property...

[nota]

Buy a beater
and beat the bushes back

[Hugh R]

I live in an HOA with a total of 25 homes. There is no common property, although it looks like there is. I and my neighbors have an access easement across everyone's property for the street, which is the joining point of all property lines. I only have a right to drive up the street, nothing else. NOTA I think summed it up well.

[notmytarga]

My uncle ran a title insurance agency in town before he passed. His position allowed him knowledge of interesting parcels. He paid $5K for a triangular plot that was listed as 0.1 acres and thought unusable because of easement ingresses that caused it to be that small. It was at the back corner of two lots where road had been built. When that road was widened to plan for development a developer paid $100K for that useless lot.

If you want to DIY a portion of this - Use the county system and title agent to get a full feel for your issue then confer with a lawyer on what other advice they steer you too. Like others have said: Don't pay $300/hr for clerk type background work you can do yourself. Unless you have that kind of thing - I do!

[KFC911]

Originally Posted by Groesbeck Hurricane

KC,

Question, if they wanted only to lay a potable water line to the property and this was the best access point what would you be willing to trade so they could lay the potable water line? I'd think trading the driving easement for a specific easement allowing ONLY potable water line would be reasonable.

I think that's an absolutely workable solution if they are reasonable. Just need to talk with them and see...Thanks!

Originally Posted by notmytarga

...If you want to DIY a portion of this - Use the county system and title agent to get a full feel for your issue then confer with a lawyer on what other advice they steer you too. Like others have said: Don't pay $300/hr for clerk type background work you can do yourself. Unless you have that kind of thing - I do!

That would be my plan if I need to go that route. I can pretty much lay it all out and let someone who knows the law play the hand. I prefer not to have to do that...we'll see.

[p911dad]

In regards to the topic of abandonment of recorded easements, I offer this from Oregon law, it may apply to your case. For what its worth:

Forfeiture and Abandonment (See Section IIC OWRCW – page 9)

An easement ceases to exist when it is abandoned. This does not mean, however, that a person must make continuous use of an easement once the interest is created. Abandonment occurs only if there is evidence of an intent to permanently abandon the easement. A variation in the use made of the servient estate by an easement holder does not necessarily indicate that intent. Nonuse, alone, is insufficient evidence of an intent to abandon.

Case Law Update:

Shields v. Villareal, 177 Or.App. 687, 33 P.3d 1032 (2001).

Curb and bushes installed by neighbors did not demonstrate an intention to abandon an easement across landowner's property as it did not render access to easement impossible or so impractical as to be virtually impossible. There was testimony that vehicles could drive through the bushes and use the easement, and that neighbor's service vehicles had in fact used the easement on several occasions to spread bark-dust and perform maintenance on the rear side of their building. In order to show abandonment, easement holders must have expressed or manifested an intent to make no further use of the easement.

If the need to use an easement has not yet arisen, the easement will not be deemed abandoned by the mere passage of time. However, nonuse is relevant evidence of intent to abandon, unless the nonuse is due to forces beyond the easement owner’s control. Jon W. Bruce and James W. Ely, Jr., The Law of Easements and Licenses in Land ¶ 905 [2] at 9-32 (1988). Nonuse of substantial duration may give rise to the inference of an intent to abandon. A greater degree of evidence will probably be required to establish abandonment when such a finding may result in forfeiture of a valuable right.

[KFC911]

Originally Posted by p911dad

In regards to the topic of abandonment of recorded easements, I offer this from Oregon law, it may apply to your case. For what its worth:

Forfeiture and Abandonment (See Section IIC OWRCW – page 9)

An easement ceases to exist when it is abandoned. This does not mean, however, that a person must make continuous use of an easement once the interest is created. Abandonment occurs only if there is evidence of an intent to permanently abandon the easement. A variation in the use made of the servient estate by an easement holder does not necessarily indicate that intent. Nonuse, alone, is insufficient evidence of an intent to abandon.

Case Law Update:

Shields v. Villareal, 177 Or.App. 687, 33 P.3d 1032 (2001).

...

Thank you! My position would be that she and her brother have been using a shared driveway via the 1/3 acre my grandfather deeded to the "family" for that intent. That along with 35 years of "silence", not to mention the water issue.

[KFC911]

Originally Posted by georgeinhere

There is some good advice in here, Nota makes sense. I didn't realize that you hadnt talked to the neighbor...talk to them, feel them out, put nothing on the table without thinking about it and understanding the consequences...

I knew I could get some good advice here . Soon...thanks!