Attempted Easement

[keh]

The discussion on easements yesterday brought this to mind. I probably don't have it all right since it is third hand info.
We were visiting daughter and grand daughter and daughter took us to one of her neighbors who are organic gardeners to buy some spinach. I was talking to the man about his 1978 Satoh tractor and implements and missed the conversation D and wife were having with the man's wife. Was told these details later by SIL and daughter.
Blessedly I haven't had to look up the law on easements here in SC but my understanding is that you have to give someone access to landlocked property. It dosen't have to be the most convenient access. Anyway, a man bought property next to the garderners and wanted to sell lots. There was an old farm road of some sort between the gardners and the next neighbors property which the speculator owned. It did not go all the way to the rest of the property which he wanted to develop. Speculator wanted to widen the old road on the gardner's property and extend the road across the neighbor's property to his property. There was road access on the other side of the speculator's property but not utilities there of the quality he wanted(no DSL, for example). There was also some sort of issues with the county highway department about building a development road there. Anyway,gardners refused to grant easement or appearantly sell the speculator a strip of land for the road. Speculator waited until gardners were away and sent in bulldozers and started cutting trees. Gardners are early retired professional people and obviously not willing to roll over and play dead. Appearantly lawyers consulted and told to make the problem go away and by the way, get damages(no doubt enough for a nice fee for the attorneys too). I don't know if that is the end of it or not, but I hope so.

KEH

 

[John T Country Lawyer]

KEH, In juisdictions Im familiar with there exists an action by which the Court can grant and order an easement across a respondents property based upon the petitioners Necessity such as he's otherwise landlocked.. And you are indeed correct it dont have to be in just one particular spot.......... HOWEVER the law does NOT favor a person who has due to his own fault become landlocked. Say a farmer previously had access to his land but due to circumstances beyond his control such was no longer available, the Court wouldnt mind granting him an easement BUTTTTTTTT they dont like it near as well as for a johnny come lately developer.

BUTTTTTTTT we all know how money n power n politics works in small towns i.e. if big shot developer who plays golf on wednesdays with doctors n lawyers n judges wants an easement across your farm HES LIKELY GONNA GET IT grrrrrrrrrrrrrrrrrr

Andddddddddd as a matter of strategy if another dude wants an easement across your land, you dont have to fight it or prove or win anything at first, simply quote him a high figure to sell it n let him rant n rave n scream n holler n you sit back n grin,,,, n if he dont wanna pay it let him pay the lawyers bug bucks to try n get it say by necessity PLUS he stilllllll has to pay you. Thats where a good legal opinion as to his chance of success is worth a bunch of cash. If theres a good chance he will win you cant charge him much to settle out of court but if his chances are slim the skys the limit far as youre concerned,,,,,,,,say just how bad do want an easement????????

Take care now

John T

 

[RobMD]

I know for a fact that developers are money hungry and like to plow down everything. They go looking for something to build up and then harass people for easements and other stuff. I feel for the people who don't want anything changing, particularily their OWN property.

 

[John T]

Rob, I agree, Im a property rights kinda guy. However, I think personal property rights are loosing ground lol (no pun intended). For example before ONLY the State had the power of eminent domain, a "taking" of personal property for the good of the citizens/state, usually roads n bridges etc butttttttttttt remember the recent case where a PRIVATE developer won out over a private citizen (he was forced to sell to developer) and the Court reasoned a shopping center was better n more value n most efficient land use etc etc for the the states citizens grrrrrrrrrr

John T, JD

 

[Anonymous-0]

While an easement could be granted, I don't think someone can just take a cat and start building. I did some landscaping for a lady with an arrogant neighbor. He ripped out all her trees on her side of the property line and proceeded to put in a fence. Again on her side of the property. She was losing 10 ft. of property. The neighbor was not only ordered to remove the fence but he had to pay for the replacement value of all the trees. It cost him something like $10,000! After that he started to pile snow so her driveway would get drifted shut. The county told him to stop doing that as well. He also built a garage that was too close to the property line. Maybe the reason for moving the fence? This was in a pretty fancy sub-division with certain building requirements. I'm not sure what happened with the garage. The guy was a brick layer and his garage had a different style of look from his house, which is also a violation of the building code in the sub-division. Some people(usually wealthier) seem to think they can do what ever they want. When I bought my land, I was told there has to be access but it doesn't have to be practical access. I ended having to put money into upgrading the dirt road in. It really sucks when neighbors only do things for their own benefit. Good neighbors usually help each other out with all kinds of things. Dave

 

[noncompos]

I just ran across my copy of Ogden the other day while clearing out some bookcases, and now I can't lay my hands on it...EASEMENTS OF NECESSITY, to my recollection, at least in Calif usage in the time I worked there, HAD to come out of the original tract/parcel the piece needing access was split from, like fr'instance:
A owns 10 acres with pub rd frontage; A sells B his back 5ac (no pub rd frontage) and both neglect to mention access to the pub rd in the deed... Several generations/owners pass, B's successors want to build, can't get a loan without a recorded easement for access. A's successors try to hold B's people up for a high price. The court will grant B's an easement of necessity, BUT only over some part of the other 5ac of the original 10 acres. The Court has no power to grant B's an easement over C's, D's or anyone else's land, no matter how much more convenient it might be.
As mentioned above, this's from memory as to Calif usage (and I believe OR) in the past, and later legislation/decisions may've changed things.
John T: I'll try to find my copy of Ogden, just to see what it says (it's probably 50 yrs old now!!).

 

[Anonymous-0]

Just be glad you don't have to deal with the Wi. DNR. I have 50 acres of farmland, part of the family farm. I have a 66ftX685ft right of way which I own to get to it. It has been that way for at least twenty five years. The neighbor has been renting it for years. I now want to sell it. None of the local farmers want to buy it because everything in the area is turning into houses. The DNR stepped in and said that there is a wetland in the middle of the right of way, 18/100s of an acre. This wetland is dried up in the spring about two weeks after the surrounding land. As long as the land is farmed, equip can be driven through. If I sell the land and even just one house is built on the land, no vehicles can pass though. I told the DNR that I heard that no-one can landlock a person. I was told, we are the DNR, we can and we will landlock you. Talked to a lawyer and a couple gov. offices and they say I'm screwed. Anybody want to buy some land that you can't get to?

 

[JDemaris]

Rule #1 is - what State and County the land is in. You also have to remember, that no matter what the laws states in writing, what happens in the real world often differs - since many judges do what they want. That's why you have to search local case-law - which is easy since the Internet was invented.

Some states absolutey do not grant full access to landlocked parcels - period - end-of-story. Others do - to different degrees. I just made an offer on a 100 acre landlocked parcel in the upper peninsual or Michigan. In that particular area - the law reads - any land that shows on the plat-map is eligible for ingress and egress relief. It is limited and complicated, and done only by court order. Often, even if a road is granted it is for limited access. Whatever it is - it is put in righting by a judge.

In all states, the grantee of a landlocked parcel is eligible to obtain an easement by necessity - but again, to limited degrees. In a few states, however, a grantor of a parcel who retains a landlocked parcel cannot obtain an easement by necessity, the theory being that the grantor is responsible for causing the problem.

Easement by Prescription - an easement created by the open, notorious, uninterrupted hostile, and adverse use of another's land for 7, 10, sometimes 20 years. It depends on where you are.

Easement by Implication - an easement that is created by operation of law when an owner
severs property into two parcels in such a way that an already existing, obvious, and continuous
use of one parcel (as for access) is necessary for the reasonable enjoyment of the other parcel.

Easement by Estoppel - an easement that is created when the conduct of the owner of land
leads another to reasonably believe that he or she has an interest in the land so that he or she
acts or does not act in reliance on that belief.

 

[John T]

Good info, as we know they do a lot of weird things in that state lol Fortunately, it may or may NOT be good law in others.

Glad to read your qualified n competent opinions on these easement questions, with your background you have probably worked more in this aren then I have.

Thanks n Merry Christmas

John T

 

[John T]

Go to the head of the class, I enjoy your input on these too complex for here legal issues for sure. We need to vist n look at n admire each others antique radios also, Where you located???

John T

 

[Mike (WA)]

Many jurisdiction have provision for "private condemnation" of an easement for a landlocked parcel. Usually only successful on the first try if you have selected the route that is least burdensome on the condemnee. Unlike easements by necessity, prescription, etc. as described below, you have to pay fair market value for land taken in a private condemnation. These deals usually settle out of court, once the condemnee hears the bad news from his lawyer.

 

[JDemaris]

Otsego County, New York about 20 miles from Cooperstown ( Farmer's Musuem, Last of the Mohicans and Baseball Hall of Fame tourist-trap).

 

[John T]

Ever go to the New York State Two Cylinder Expo in Canandaigua (spelling) NY every other July ????? They keep invitign me back there where I give JD Electrical Seminar/Workshops but Im about out of smarts n they already heard all I have to say lol

John T in Southern Indiana

 

[JDemaris]

No I haven't. The main reason being - there are just too many engine shows around here during the summer. All is spread too thin. And it seems whenver a big one comes up - there will be two or three all on the same weekend.

We have one locally that started real small, a few miles from me in the town of Roseboom. Now, it too is getting huge - and was on RFD TV and the cover of Country Folks. Also, McFadden (tractor dealer and tractor salvage yard - and auctioneer) has a huge show and antique tractor-pull every summer at Sharon Springs. And, another at the same time near Central Bridge. And another downstate near Grahmsville and another up north in Lewis County.
And then there's the one I have to go to in East Meredith, Delaware County - at my wife's musuem (Hanford Mills). My wife helps run an 1800s saw and grist mill - water powered and steam powered. They have their own engine show every fall - and also an ice cutting harvest event this winter - with some antique engines running ice cutting saws, mules pulling ice markers, etc.
There is only X amount of time for these things. Now that my first set of four kids are in their 30s and living out west, they don't help me truck my own stuff to shows anymore. And my new kid - at four years old - isn't much help yet. By the time he is, I might be dead or in a wheel-chair. We'll see.

 

[Eric SEI]

Not quite pertinent but still related. It is my understanding that in Indiana it is no longer legal to create a landlocked property. Older land locked property still exists, though.

 

[Anonymous-0]

Aren't you allowed to "move" the wetland?
Maybe other states are different, but I think you can dig 18/100s of an acre somewhere nearby and basically swap high ground for low ground.
You would have to go through the proper channels and paperwork naturally. Maybe even offer to make a water hole better than the natural one by making it bigger, deeper or better surrounding vegetation for wildlife use more months of the year. They like that in a worthless mudhole and are more likely to help you than fight you.