OT--another John T--Country Lawyer question

I own a piece of land that I have been using/and spending money maintaining a "gravel access road" that runs about 50 yds. FROM a town road, THRU a pasture to a corner of my property.

I have bees using this access and maintaining it for 11 years. There have been 3 owners of the pasture where this "road" runs during the past 11 years.

I have had no problems, but have heard from neighbors that the current owner may restrict me from using this "road" in the near future.

I have access from another town road to the property, but for convenience reasons have been using and maintaining the "short road route".

Some neighbors have told me that because of the length of time I have used the gravel road and because I have put money into maintaining this road, that I have the "right" to continue using it regardless of what the current owner of the pasture says.

Anyone have any input on this, I would be interested in reading your thoughts.

Thanks, Tim

Prescriptive easements are a little different than straight adverse possession- In most cases, in addition to using and maintaining it for 10 years or more, the access over that route must be "reasonably necessary"- ie, you have no other practical access. If you have access from another road, getting a prescriptive easement for this one may be difficult.

Sounds like you better get to your local lawyer so you can get a recorded easement either through agreement or lawsuit.

I think this may also differ between states as to the length of time that you need to be maintaining and using that road. Without an easement in place on the deeds and another route to your land you may be out of luck.

8N'r:

The law of prescriptive easements is state law and varies from state to state.

In IN one MAY acquire a prescriptive easement after an adverse usage period of ten years. Other states require different usage periods. It appears that WI has codified the law and follows the more common twenty year usage period. Note: the use must be adverse, i.e., without permission.

More importantly, the burden of proving all elements necessary to acquire a prescriptive easement is on the party seeking to acquire the easement. This can be a heavy burden unless you have kept good records for the statutory time period.

In any event, an enforceable easement can be acquired only after a court of law has heard the evidence and ruled upon the issue.

If access to your property via the "short route" is important you should consult a WI lawyer because it is likely that the property owner will do so if such has not been done already. It is likely that the lawyer will advise you to seek a license (permission) from the current owner. Do not make an enemy if usage of the "short route" is important. After all, the current owner is the owner.

I have attached a link to in interesting article from the Wisconsin Lawyer that should answer most of your questions. Note that a prescriptive easement acquired through adverse usage and an easement by necessity are different legal issues.

Dean, Esq.
WI Lawyer Article

IF it is only a matter of convenience that you have this road and you have road frontage access somewhere else I wouldn't think you'd have much ground to stand on and probably wouldn't win (I'm not a lawyer, just practial). If you have other frontage access you may even be liable to remove the road if the new owner doesn't want it and wants to be difficult (in other words I wouldn't make him mad until you sort it all out) Would kinda depend if any of the previous owners permitted you to put it in.

If you do NOT have access frontage on another road that's a different story talk to your lawyer. Good luck. Let us know how it turns out.

A few questions come to mind. Have you tried to make friends with the present owner? If you"re a stranger crossing his property without permission I can understand why he would have no interest in allowing it to continue, especially if your activity on your own property is something that bothers him (e.g. riding ATVs or having buddies over to a hunting shack to drink beer every weekend).

Along with trying to make friends I"d offer some kind of compensation, If you"re a farmer something like helping him with a landscaping project with a front loader, etc would go a long way toward making you a welcome guest.

Bottom line is one of my favorite sayings - you catch more flies with honey than with vinegar.

(quoted from post at 09:05:43 11/04/09) have heard from neighbors that the current owner may restrict me from using this "road" in the near future.

Click to expand...

Sounds like your neighbors are talking behind your back. Think I'd be putting a boot in thier a$$ and having a beer with the new guy.


Dave

I agree with you.

In KY if you have another access the one you have accross the aggrieved party will not hold up in court.

OMG!! O...M...G!!!
When commenting on these questions, I always try to stress final decisions depend upon (among all the other circumstances):
(a) the laws of the State, and, as important, if not most important,
(2) the interpretations of such laws by the Courts of the State...
If I'm reading this piece correctly, Wisconsin has basically opened a free-for-all by allowing local courts to make their own decisions, based on the local courts interpretation of the circumstances of the individual cases. How in the world are the WI Supremes going to handle these on appeal that the local Court went one way on case A and the other way on case B??? Have the Supremes given a blanket blessing by refusing to hear any such appeals?
The 30 year Notice Recording sounds more like an attempt to have an excuse to keep these cases out of the Courts; which sounds like it (as happens) created a worse (confusing) situation...
Fascinating; endlessly fascinating!

Hey Pardner. What happened to your suggestion on previous posts ie. GET A GUN? lol
LOU

The only legal remedy that could work for you is an "implied easement" that is only allowed in certain states and locales. Check your local land laws. In my opinion, it should not be allowed anywhere. It's a remnant of Old English Law, and empowers some people to steal rights from other's.

In the situation you described, you willingly used the land and maintained it to some degree, even though you did not own it, pay taxes on it, or get overt permission from the various property owners. As I see that is fine when it works. And if a property owner wants to stop you, that's fine too.

If you are trying to get any kind of "adverse use" or "adverse possession", your use would have to be ADVERSE. That means you were told by the owner to stay off the land, you did it anyway - in his face, and he did nothing to stop you.

Even a government, e.g. a town, does not get a "prescriptive easement" for a road unless they can prove some level of public use and/or maintenance over time.

Some states, in some areas have legal remedies for land-locked parcels to get limited access. That is not done for convenience, however. Just out of proven necessity, and called an "easement by necessity."

Who built the road and was there an agreement/easement granted at that time? Was an easement part of the sale of the land? Does the land owner benefit from the road as well? If the road is just a convenience and there is other legal access, you might be out of luck. Don't go by the neighbors gossip. What's the land owner seem like? Don't make him mad what ever the outcome. If in fact you lose the road and it's deemed illegal, you COULD be ordered to remove it and pay all the costs to do so. Find a good attorney that deals in land issues before you do anything else. If you get to keep the road, get a legal document made up so that both you and the land owner know where you stand and what happens if the land is sold again. Dave

A case of beer and a handshake go a long way here in wisconsin. I would suggest a sitdown with the neighbor over some frosty ones. If nothing else it gives you a chance to size up the other guy and decide what step to take next.

Tim, wow were really getting them today... First of all (as I know youre already aware) just because some neighbors say you have this right dont amount to a hill of beans and likewise my professional opinion or any lay opinions here are WORTHLESS absent a thorough review of your states laws and then ascertaining the facts AND STILL IT'S JUST AN ATTORNEYS OPINION, ALBEIT AN EDUCATED PROFESSIONAL ONE. You nor myself nor anyone here gets to decide this matter (regardless if our opinions are excellent and professional or totally incompetent), its a legal question that a Court of competent jurisdiction must settle......

Sooooooo that being said (lawyers love disclaimers lol) I will say this...

In some jurisdictions (Wisconsin ???) it may be more difficult for a Court to grant you an easement by prescription ESPECIALLY if theres an alternative access, even if not quite as convenient..... A Judge just may not be so eager to rule yes you can legally cross over the neighbors land if theres another way to get to yours NOTE Im NOT saying thats necessarily the law Im ONLY saying a Judge may take that into consideration, and even if if he is legally wrong in his decision as a matter of law, you still would have the expense of an appeal........

It's indeed ture one can acquire over time the right to use anothers land as access to his own PROVIDED YOU MEET SEVERAL CONDITIONS such as the time you use it and if its similar to Adverse Possession as far as the use being Hostile Open Adverse Continuous Exclusive etc etc etc. AND EVEN THEN A COURT WILL HAVE TO DECIDE THAT AND THE BURDEN OF PROOF IS ON YOUUUUU......Just because and even if you used it 50 years dont necessarily mean a Court will rule you may continue to do so HOWEVER if you meet all the requirements concerning an Easement by Prescription theres a good chance you may prevail but it can be a time consuming and expensive proposition........

Heres what many not trained in law may not understand.............Easements by Prescription and Adverse Possession are not so much to REWARD the squatter but to punish and force the landowners to be diligent and NOT sit on their lazy a$$eS for 10 to 20 years AND DO NOTHING but then cry to the Courts for help

If one has no access to his land he may bring an action for an easement by necessity BUT THATS A WHOLE DIFFERENT LEGAL ISSUE and not very available if you have another even not so convenient means of ingress and egress

NOWWWWWWWW I can give still you some free professional legal advice (cost nothing as thats its worth absent research even if educated) even without knowing your states laws or all the facts...

It serves to strenghten and build your case if you continue to use the easement and do it open and maintain it and keep good records and evidence and photos etc etc........HOWEVER it can still be quite an expensive time cousuming Court fight if you ever go down that road (pun intended)

So long as you keep using it and the owner dont do anything, you can have your cake and eat it too, you have the use plus theres no legal fees IF IT AITN BROKE DONT FIX IT and as time goes by and you keep using it your case for a prescriptive easement only grows stronger..

NOWWWWWW if the day ever comes the neighbor jumps out of the woodwork and says keep OUT you sure have no instant right to use force to continue crossing his land (self help) unless and until a Court resolves the dispute and at such time you have to make a decision to walk or fight it in Court and the burden is yours remember by a preponderance of the evidence.

Soooooooooooo the risk is yours regarding the maintenance expenses and youre treading on this ice somewhat but if you can just keep using it I wouldnt start any feuds and stay under the radar because the time may come when you have to bring legal action to keep up the use or walk away BUT THE LONGER THE BETTER

Another alternative is to approach the neighbor as a friend and just offer to purchase an easement (have the deed with legal description recorded DUH) and be done with it which will be wayyyyyyyyyyyyy cheaper then a Court action THINK ABOUT .......thats my other (and perhaps the best) free legal advice.......

Best wishes and God Bless

AGAIN CONSULT LOCAL COUNSEL FAMILIAR WITH YOUR STATES REAL ESTATE LAW AND DONT HANG YOUR HAT ON MUCH SAID HERE

John T in Indiana The Country Lawyer BSEE, JD

Great discussion Counsellor, fun to hear other good professional inputs

God Bless John T BSEE, JD

WHY WOULD YOU WANT SOMETHING THAT DOESN'T BELONG TO YOU??? Three attorneys have talked legalese to you; if I were your new neighbor and speaking as a farmer/landowner, I'd say you've been (knowingly) trespassing for 11 years and you need to get the hail off. Have rented land all over the Southern half of my county and have shared property lines with hundreds of folks; only ONE I've had problems with is about 400 yards from my back door and keeps wanting to encroach.

Interesting thread, JT.

Perchance, might you practice patent law?

Dean

Read all the posts. I am also in Wisconsin, and agree with the others to try to avoid the courts.

Why are you talking to a different neigbor about what a new owner might do?

Get in touch with the new owner. He has something you want, and you can likely offer him some compensation for the use of it. All you have to do is get together and work out a deal. No courts or lawyers needed.

The last thing anybody wants is a protracted legal battle of any kind. No winners ever in those cases except for the lawyers.

There's been advice aplenty offered. Some of the best is that your plan should include getting your tuchas over to see the new owner. Hearing about his inclinations from others suggests you may be too late, but you may be in time to salvage your access with an honest talk and the offer of some reciprocation. As it stands, he may just view you as the local yo-yo running roughshod over his land. I'll give you the benefit of the doubt and assume you are not. The only way you're going to get some consideration from him is to man up and get over to see him about it.

I didn't read the rest of the replies - I will after I post this.

You need to have some access to your property. If it is all land-locked, you would need to buy an easement to your property. This can be forced upon others if it gets to that, you get access to your property.

Typically access is on an existing public road that touches your property, or the shortest distance of easement to get to your property acroos someone else's propert - which you had to pay for.

So you tell us you have access to your property from a public road.

But you made an access road across some else's property because that was easier for you.

You did not say if you 'purchased' this road easement from the owner of the property at the time. Cash, trade labor, trade a tractor, or whatever - did you 'buy' the right to use that propery from the legal owner of the property at that time?

If you 'bought' the easement, it shoulda been recorded on the property deeds.

And you should have a right to use that easement - you bought & paid for it.

If you just went out & made the road on some one else's property, or only got mentioned in passing & you were allowed to make it but didn't actually buy that access in any way.....

Then you are a simple tresspasser, and you should not have rights to that property. If the current owner says get off, you get off. It ain't yours. If you put some money into it, your problem, why would you invest money into property that isn't yours? You already have legal access to your property, and don'thave any claim to this patch of pasture that you are tresspassing on. Doesn't matter what is conveinient to you, it matters what is _right_. You are not right to take other people's property.

As to your question, some states allow tresspassers to claim property if they occupy it for 7 to 20 years (depends on state). It can be a spendy, long legal battle, worth more than 30 feet wide of dirt is worth, and makes bitter neighbors for generations.

I sure wouldn't want to know you if you take this avenue, it seems a real low-life thing to try to steal from a neighbor.

Do I come on kinda strong? How I feel about this. I think every neighborhood has a land dispute in it, and it really shows the character of the people involved. I feel strongly that what you prepose is a very bad thing - stealing - unless as I stated in the beginning, you obtained an easement for this property from the original land owner at that time.

My opinion.

--->Paul

Yep, sounds like Scotty, Thurlow, Foghorn, and Paul have a grip on the issue.

As chairman of a planning commission for years, I've run into plenty of people who think they can dictate to landowners as to what they can and can't do with their land. Zoning regulations are powerful laws but landowners still hold some rights. I've told plenty of people the best way to control land use and who their neighbors are is to buy the land themselves. But that would be too easy.

I remember a guy who bought a home in a residential section and wanted a special use permit to make a 4 person adult care home which was allowed by state law. The neighbors complained but it was granted. Couple years later there was this piece of triangle shaped lot in front of his house on a weird angle with the way they have curved roads in subdivisions now. That lot was never built on in 30 years. A guy bought it and came in for a side yard variance so he could get his garage on it. The lot basically faced two streets as they came to a point. The guy with the adult home came in complaining cause the new guy was building his house with the backyard facing him and he didn't want to look at a back yard. He admitted he has had chances to buy it but didn't want to mow it. We told him the guy can face his house whichever way he wants and granted the variance. Then the adult home guy jumped up and said I'll buy it right now for the price he paid for it and no more. The other guy said no dice.

John,
Precedent as to the degree of "necessity" is probably all over the board, depending on the jurisdiction. In Washington, its pretty strict- there is even an old case that denied an easement of necessity because the owner had access BY WATER, even though he had never accessed the property by that method, and apparently didn't even own a boat.

No, I was well qualified to sit for the patent bar as an engineer but opted not to its soooooo specialized and I would have had to live in Indinapolis

John T

For a time in one of my prior lives I practiced patent prosecution. It is indeed highly specialized and most often practiced in large cities.

Dean

Your following comment is not true everywhere in the USA, and I'm glad it's not.

" If it is all land-locked, you would need to buy an easement to your property. This can be forced upon others if it gets to that, you get access to your property."

Only some areas provide legal remedies for landlocked parcels and then, only under certain conditions. If granted, often that access is very limited. Many places do not allow it to be ajudicated, period, end of story. Landlocked is landlocked, sells cheap - and if you buy it cheap, deal with it, as-is.

"Some neighbors have told me that because of the length of time I have used the gravel road and because I have put money into maintaining this road, that I have the "right" to continue using it regardless of what the current owner of the pasture says." What is this Mexico? This is exactly the reason that you have to be so careful about being a good neighbor and allowing somebody to cross your property. Before long they are trying to steal it from you. (steal = take what is not yours!) How bout just do the right thing and talk to the guy. Offer to buy it like you should have already done if you wanted to keep using it. If not man up and use the access that YOU own.

Hello my Wisconsinite friend, you have good and bad advise here, so you don't need mine,
God Bless you, and use the Good advise. zeke

Mexican property owners might even have more rights. I've had Town Board members try to take some of my land by Eminent Domain (legalized property theft). I've had tresspassers claim rights to run 4 wheelers and log skidders across my land, claiming similar "implied" rights as the original poster here. I was warned by the local sheriff that if I fenced it, and somebody got hurt crashing into my fence, I might get sued, etc.

Sometimes I think the intruders are the smart ones. No taxes to pay, and often more in favor with the law then the people who actually buy the land.

I'll just add a note about an in-town property that I owned in a small Maine town. The original property, years back, consisted of the entire block, bounded by four streets, with a brook winding down through it. Long before I bought it, the corners were sold off on the other side of the brook from where my house and barn were, and I wound up with a shallow piece on the other side of the brook with 90' of frontage. A fellow who lived across the street from that sliver parked on it. (His was a small cramped lot and it made life easier). He was up front about wanting to buy it. I couldn't imagine how I would price it, but also learned that it was too small a parcel to actually deed over or transfer to him -- they couldn't make it part of his property because of the street between it and his property. I allowed as how he could use it if he kept it mowed. When it was coming up on adverse possession limits (ten years of my ownership) I hallooeed him while we were both outside and told him I wanted to post it for ten days and asked him to stay off of it for just that time, after which he'd be free to park there for another ten years without interruption. He wasn't too thrilled, but understood. I've since sold the place, explained it all to the buyer, and he's still parking there.

On the flip side, one end of that sliver ran right up to the foundation of the property on the upper corner over there. A fella who should know better (his wealth was fifth-generation of one of the largest landowners in the state - millions of acres) bought that place and would come up summers. He started parking on that same piece. No skin off of my nose, other than he never said hello, introduced himself, in fact wouldn't even return a hello across the brook while I was in the garden and he was out grilling on his deck overhanging the brook. until he decided to pave his parking spot. So it was kind of a cipher until he paved his parking spot.

The difference between the two? I might say it was the difference in how they approached me, except that the one didn't, in fact wouldn't even respond to me. He got to pay to have his pavement taken up, and his Town Car never cast another shadow on my land.

Vinegar and honey.

I haven't seen the question about your right to this easement/right-of-way answered, so I won't speculate on your chances, but if that question is at all up in the air, you might do well, if it isn't too late, to approach this guy yourself and try do work something out in a neighborly way before you spark too much resentment.

Wow!!----First off, thanks to all who provided input and opinion--all the comments were very interesting.

I wrote ....."Some neighbors have told me that because of the length of time I have used the gravel road and because I have put money into maintaining this road, that I have the "right" to continue using it regardless of what the current owner of the pasture says."

MY OPINION is the owner of the pasture would have the right to determine who uses the road, regardless of the fact that I graded it and added gravel to low spots over the years.

BTW---the little 50yd. gravel access road was there long before I or any of the other neighbors were there.

Tim

No one would really know, until they research state law, look at past court cases that are similar & how they turned out, and ultimately fought it out in court.

Many cases have turned out differently in different states. There will be many small issues that can make huge turns on how it ultimately would be decided.

There is no one easy answer to your question, and many have hinted at that. You added now that the access road was primitively there for a long time, before you were in the picture. That detail could affect the way a judge would look at it - depending on the Judge. As well any simple details the current or past landowners would supply could change how this all is viewed by a judge.

Just to me: A pasture is fenced, so how do you have a path through a pasture??? That has made me wonder from the beginning - but no big deal....

Many of us have dealt with the neighbor from heck who creates these issues. It brings out strong feelings from many of us - been there, been wronged by it. I hope you can understand that.

My opinion is, unless someone created an easement and compensated the landowner at that time for the easement, the owner of the pasture should be the one who can control the road & who is on it. If an easement was created in the past; it shoulda been written down on the deed. If not written down, that makes it all very messy again - following land owners don't know of the easement, and so could sue the previous seller for damages by not disclosing easements - and who knows where _that_ case would lead, or who would win.

In short, your question is one of those terrible, thorny, makes county commisioners & judges groan when they see it, type of questions. There is no easy answer, it becomes case by case if people want to push it.

--->Paul

check your state statues for Adverse Possession..in Miss. if you improve or use a piece of property for a uninterrupted period of ten [10] years WITHOUT anyone protesting your use of it then it belongs to you...Miss. code 15-1-13...I have used it in the posession of a small corner of my yard ..about 1/3 ac....take care ..Kent

As a practicing attorney I sure enjoyed reading all the lay opinions, many of which were pretty darn good others maybe not so good. Unfortuantely, I have to be the bearer of bad news in that it takes research in your states laws and a study of all the facts before forming a good professional opinion and even thats not worth a lot since its the Judge who has to rule on these matters. Still you wont find a finer group of gents who are all willing to help out and thats why I love antique tractor folks and glad to be able to help in any little way I can.......

Yall take care n God Bless

Ol John T Country Lawyer in Indiana

I can tell you first hand that it will cost money to decide it if you can't work it out with the guy. I got my final bill from the lawyer for the dispute with the guy who has an easement on my property. It cost me right at $15,000 to have the judge tell the guy he has an easement and has to go by what it says, not what he wanted it to say. He now gets to maintain it at his own expense and use it to access only his one piece of property, which was the way it was supposed to be all along.

Go down and talk to the owner. He knows what he is thinking of doing and most of the time it turns out to be nothing more than a misunderstanding after all. Heck you might even end up getting along with him.

Hi Paul--

you ask...Just to me: A pasture is fenced, so how do you have a path through a pasture??? That has made me wonder from the beginning - but no big deal....

There is a gate on each end of the 50 yd. path. One on the town road and one on my property corner.

Tim

In ILL after you could go to the court house and file for assumed ownership after 7 years

A couple of things come to mind here. First off My wife and I are in the middle of an ugly adverse possession suit with our neighbors and it’s a damned expensive way of saying I told you so. Second, I believe the issue you are dealing with is called a prescriptive easement.

The Free Dictionary by Farlex defines a:
PRESCIPTIVE EASEMENT n. an easement upon another's real property acquired by continued use without permission of the owner for a period provided by state law to establish the easement. The problems with prescriptive easements are that they do not show up on title reports, and the exact location and/or use of the easement is not always clear and occasionally moves by practice or erosion. (See: prescription, easement)


If I read your description correctly, you heard a rumor that your new neighbor may want to keep you from crossing his pasture. As stated by somebody else I’d go to the neighbor hat in hand and see what develops in a conversation about say the way hay grows in that field or if maybe how he might like to kick something in to maintaining the road which you have generously been keeping up over the last umpteen years. You will know soon enough if he wants to close and lock the gate so to speak. At that point you may want to decide whether you want to spend $1000s of bucks on a nasty fight over an easement and whether the shortcut is worth a rift in the neighborhood.

Maybe the new neighbor is easy to do business with and you can work out some kind of win-win trade where you get an easement written into his deed and he gets you to mow his hay free for 5 years.
Unless he agrees to voluntarily amend his deed to show the easement you hope for, it could get nasty and expensive. The only ones who benefit then are the $350 per hour lawyers and you might loose.

I am in Texas, which has very strict rules defining what constitutes adverse possession. They have a thing called a "casual fence", which is any fence which you can't personally get a witness to swear to it that they built it and what for. It doesn't matter how long it's been there. And if the only use of the land claimed as possessed was cattle grazing on perennial grasses it won't fly either. These rich Texans love the court system here.

Hope Wisconsin is easier to deal with.

Good luck.
John