Posted by John T Country Lawyer on June 23, 2011 at 07:41:31 from (173.243.189.183):
In Reply to: Right of Way - gate - posted by RonGrzywacz on June 23, 2011 at 05:33:59:
Ron, first off you CAN NOT get your question answered here, especially by lay or even professional opinions. If you and those neighbors choose to litigate the issue then a court of competent jurisdiction can make a ruling and what you or I or the neighbors or anyone here thinks is of no consequence. Does this easement serve ONLY the cabin owners you mentioned OR is to the "public in general" as the one land seems to think?????
Do you own adjoining land say behind the land served by the easement that you have an interest in protecting????????
Id guess its ONLY for cabin owners so you can indeed block access to the public in general but NOT to the cabin owners it serves. For instance if the easement provides ingress and egress for the cabin owners, THAT DOES NOT MEAN THEY CAN DEVELOP A SHOPPING CENTER BACK THERE and then you still must provide all that access, that overburdens the original or established intent.
As Co Counsel Dean well notes and its CRITICAL TO A LEGAL ANALYSIS, is this a writen easement OR one by prescription based upon uninterrupted use for a statutory period??? If theres a writing ITS LANGUAGE CONTROLS and what anyone here thinks doesnt amount to much and if litigated thats likely what a Court will rule.
If theres no writing and the easement is determiend (by a Court, no one here for Petes sake, we dont have such authority) found to serve as ingress and egress solely for the cabin owners (NOT the public), the legal issue concerns a balance of how much of a burden it is for the dominant party (cabin owners) to have to get out and use a key to open a gate versus what rights you have in protecting other property you own and the associated risks and burdens.
Id say this, if those cabin owners have used the easement with no gates over a period of time AND THEY USE IT OFTEN SUCH THAT A GATE IS BURDENSOME and conditions have NOT substantiually changed,,,,,,,,,,,,A court is likely to frown on your now wanting to alter the ease/method of access,,,,absent good reasosn to do so such as risk of damage to your property.
I enjoy these question and am glad to help if I can, when a legal question is asked everyone comes out of the woodwork with an opinion and are well intentioned and glad to help BUTTTTTTTTTTTTTTTTTT there are wayyyyyyy to many unknowns here to render a competent professional opinion and even if an educated opinion could be given, A COURT HAS TO FIND THE FACTS AND RULE ON SUCH A COMPLEX ISSUE so anything offered her (lay or professional) just isnt anything you wanna hang your hat on........
Ask a local attorney familiar with real estate law and provide information to him as far as any writing etc AND HE CAN GIVE YOU A WORTHWHILE OPINION then you can choose a course of action such as litigation or build a gate etc etc or do nothing
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