easements

[Lee in Iowa]

I have been getting acess to a field on a farm I rent by going through another farm for 10 to 15 years. The adjoining farm I have been going through has been in the CRP with an owner that lived out of the area and I had no way to contact. The owner of the farm I rent said he had permission from the previous owner to go through. Now the adjoining farm has a new owner and is coming out of the CRP. The new owner says he doesn't know if he will give me continued access or not. Some have told me the fact that I have been going through there for so long gives me an easement. Anybody else had experience with this. I'm trying to put in a creek crossing so I do not need to go through the other farm, but don't know if I should give up right to the easement if I have one just in case the crossing fails. Also trying to look out for the widow that owns the farm. Lee

 

[kyplowboy]

I do not know for sure but you may have a case. The best thing I could tell you to do is jot down on on note book paper all your questions about this and ask around who is the best REAL ESTATE lawyer is around you. (The days of have'n one lawyer on speed dial to get you divorced, out of a DUI, and write a deed the same week are about over.) There are very few ways to spend $100 in an hour and get more for your money.

 

[tiresntracks]

A friend of mine just went through the same thing. You have what is called a perscriptive right of way. You only have to use the right of way once a year for five years to claim a perscriptive right of way. The property owner will have to take you to court to get you to stop crossing his property and he will most likely lose if you have pictures and witnesses to prove that you've been doing it for at least five years. Do not let him give you a key to his gate or any other kind of permission to cross his land. If he gives you permission, he can revoke it at any time. Claim your right of way by cutting the lock off the gate or removing anything else he puts in your way, but never ask permission.
The best advice was in the last reply, find the best real estate lawyer in town and ask his advice.

 

[Don-Wi]

The way I understand it here in Wisconsin, is that if your property is landlocked, it is illegal for the adjacent property owner to block you from using their driveway or whatever it takes.

We have an easement to get to about 15 acres of land that we farm, and we have to go right through the middle of an apple orchard (used to be our land) to get to it. Every year the owner starts to raise a fuss about us knocking all the apples off his trees along the lane, but he's the ones that decided to move the path from the edge to right down the middle, and it has a creek so there is a culvert to cross over.

He says he'll clear the path along the edge again, but we tell him that if there isn't a culvert there, we ain't gonna cross it and we aren't paying for it ourselves to install one. It shuts him up for a few months at a time when we explain it to him.

Then he'll point over to our other field that's across the creek, and has road access, and says he'll help put in a culvert over there. We tell him that's fine and all, but it's a wet sink hole by the creek over there and we still wouldn't be able to use it because we wouldn't be able to make it through. He gets frustrated, but he shot himself in the foot on that deal.

My favorite time of year is hauling manure in the fall when the apple and pumpkin season is in full swing. We just go rihgt through the orchard. Any obstacles he has set out get moved, and we have the right of way over the cars that are coming & going. Can't back up a tractor and manure spreader near as easy as they can a mini-van... Atleast that's what we go with...

Donovan from Wisconsin

 

[cat236]

Two problems I believe are that you as a leasee would need to show contractualy that the landowner had such an easement with the first owner of the adjoining property. You state that you have no contact with the owner when your rent began,so effectively did you ever have a legal easement.That is to say if someone has accessed parts of my property for a series of years without my express consent,how is he now entitled to that easement legally from this point on? I would try to document and verify your contacts with the individuals you spoke with over the past several years that lead you to believe you had such an easement.I would think you would stand a better chance of retaining easement with thet new owner by being honest with the whos and hows you came to using it. Being obstinant and difficult will gain you absolutely nothing other then aggravation.From your description the new owner has not completley objected at this point.Invite him over to dinner,meet the family, just generally be a good neighbor I would be surprised if he would not be receptive.As I see it, if he purchased the land and had no legal easements assessed at the time he purchased the land,which would have been a portion of title search,subsequently there are none,legally speaking.This is only my opinion based on experience with similar issues.Good luck

 

[Anonymous-0]

Donovan your wrong that they have to give you easement no search law just went through this on a land locked 40 law will force you [me] to buy easement from the shortest distance [BUT] at owners lay out ours is just a walking easement to hunting land [swamp] we had a handshake easement for 50+years with the old owner but that don't mean anything after it was sold

 

[Anonymous-0]

If this is in IOWA you need to go FIRST to the township trustee cause if it aint in writing you dont have access according to IOWA law and the answers you get on this site are just talk. My Brother is a township trustee and this does come up but it is the first place to go for you tto get an answer.

 

[Dave from MN]

In my opinion it is a matter of respect. Legal right or not, how would you feel if some one was using your property for access when you did not want them to. I am sure the new owner is fond of his new purchase and may not want some one traversing through with equipment against his will because you have been doing it for years. If the rented acreage is that important to you, I would offer the new owner a access fee and see how he responds. If he really does not want you to use his property as an access, then (if I were you) I would find a new means for access. If there is a legal easement in the land deeds, the new owner should have been aware of it and the two of you should be able to work it out.

 

[John T Country Lawyer]

Lee, Your question is a fun (for me an attorney at least) and interesting topic and you usually get alllllllll sorts of lay opinions on these legal questions, many of which are quite accurate, others maybe not so. I like Property Law because its the oldest law there is, passed down from Englands common law where ownership and conveyance of property rights was what started all this and only later the upstarts arrived on the scene with contract n tort and other johnny come lately laws lol.

While the laws vary state to state, I will still try n provide you with some attorney insight and a very very brief very very limited professional legal opinion:

Absent conveyance of an ingress/egress easement by Deed (which you dont have) there are a couple other ways to legally aquire one. An easement is the legal use of anothers land i.e your legal right to cross over his land to get to yours or for other potential uses.

FIRST is an "Easement of Prescription" which is sort like the related legal Doctrine of Adverse Possession. In such a situation, if you or your immediate prior title holders (called tacking) openly crossed over anothers (or his prior counterpart) land to get to yours and a certain statutory time period passed in which the landowner allowed such to happen, YOU CAN LEGALLY ACQUIRE AN EASEMENT BY PRESCRIPTION whereby the other landowner MUST AS A MATTER OF LAW ALLOW YOU TO CONTINUE YOUR INGRESS/EGRESS and he cant stop it yayyyyyyyyyy for you. NOTE: There still may be other factors, such as if you can just as easily get to the same field over your own land without crossing his, that cuts against you....

SECOND is whats called an Easement of Necessity. Thats when youre landlocked and have no other viable access to your land other then passing through the land of another.

CAVEATS While the Easement of Necessity is potentially judicially attainable regardless of any past use or time restraints, an Easement of Prescription requires ceetain statutory time periods must have passed (like 10 to 20 yrs) in order for you to have a viable cause of action. However, if you bought land from a previous owner who used that easement, you get the time benefit of his prior use, i.e you get to tack on his time with yours in order to pass the statutory time n use requirement.

BOTTOM LINE FREE LEGAL ADVICE Consult a local real estate attorney familair with your states laws because it sounds like you have a good case and dont wanan do anything to jeopardize your rights in the meantime. There are all sorts of defenses, evidentiary issues and other end runs around to be wary of, but if worse comes to worse and you have no other access and you cant qualify for an "Easement of Prescription" theres still remember an Easement of Necessity possibility.

Of course, its IMPOSSIBLE to put down in a couple paragraphs here the whole legal topic of easements that can fill entire law libraries and as I said laws vary state to state, but in my professional legal opinion (while still subject to the facts n your states laws) you may have a good case BUT CONSULT LOCAL COUNSEL ASAP

Best Wishes

John T Nordhoff, BSEE,JD, Retired Electrical Engineer now an Attorney at Law in Indiana

 

[kyhayman]

I need your lawyer, my divorce attorney costs me 185 and hour plus expenses.

 

[Anonymous-0]

Since the offsite owner gave permission for the widow to cross the property and you are farming it for her, I don't believe this will stand as a perscriptive right-of-way. However if she had sold the land to the farmer and he continued to use the access without contacting the offsite owner, I believe it would be a valid case. Don't agree with Don-Wi about the issue of being "landlocked". Regardless if the only access is over a creek, it is still not considered landlocked unless water navigation rights prohibit building an access. One just needs to install a bridge or culvert. Still based on what he wrote, I'm so happy not being Don-Wi's neighbor.
Bought a piece of ground which had a onerous right-of-way thru the middle, and moved it to the outside. Could only achieve this by buying the piece serviced by the right-of-way. This was intergrated into the transaction with some difficulty, but I considered it a show stopper. Resold the piece which had a small cabin, with a surveyed, relocated right-of-way. Made sure to record the new survey.

 

[JML755]

My property has a 90' easement along one side where a gas pipeline runs. The pipeline company occasionally clears it of brush. No problem with that, they have legal rights to access. BUT... I occasionally catch guys on ATVs running up and down it who say it's PUBLIC property because of the easement. I have to explain it is NOT public property as they are not the easement owners AND I will not grant anyone access to my property for hunting, fishing, etc. Amazing, as a property owner, what lengths you have to go to in order to protect your rights.

 

[Tradititonal Farmer]

I can tell you as a matter of practicality in situations like yours the party that is willing to spend the most $$$$$$ will end up getting what they want.Having a legal 'right' is one thing enforcing it is another.Situation here in another county fellow was clearing his disputed right of way with a dozer.Landowner's wife shot him dead on the dozer she was found innocent.How bad do you want that right of way?

 

[noncompos]

I will only add one possible clarification to Country Lawyers' comments (I'm sure he wondered what it might be! LOL)
Re' easements of necessity: while State laws may well differ on these, and while I can't recall ever being personally involved in a case, it's my understanding that in OR and CA (at least up until I retired 10 or so years ago) an easement of necessity HAD to come out of the "original tract" the landlocked parcel was split from, even if "easier" access might be through neighboring (adjacent) lands.
Someone (Ogden?) once described easements as "...fertile grounds for litigation..."

 

[John T]

Hey I dont doubt ya one bit n appreciate and enjoyed the post, in California ANYTHING IS POSSIBLE LOL. It sounds reasonable that for an easement to ripen into a judicially enforceable "necessity", thought n care had to go into some original subdivisions, otherwise all sorts of litigation could follow years later. Perhaps the legislators wanted to hold the original developers accountable and to head off the litigation floodgates......

If I recall correctly, you and I have had similar fun legal discussions in the past. I love Electrical or Legal chat, wonder why ??


John T

 

[IH2444]

Not a legal professional, but in a nuttshell if I understand it right. If you have another way to get to the property without going they way you are now, you easment claimm will not usually hold up in court.
Of course your laws may vary and do not try this at home.

 

[Anonymous-0]

I think he was referring to his time calling around....<:[

 

[JDemaris]

I disagree with some of the comments made about property law in general - but I am not up to speed on laws specific to Iowa or your area. They certainly differ thoughout the country.
Some of the comments made - e.g. easements don"t specify if they are specific to Iowa law or not (and I know nothing about Iowa).
Generally speaking though - at least in states I am familiar with - i.e. Florida, New York, Vermont, and Michigan - landlocked parcels are allowed in many cases. This means you cannot always get judicial relief to gain access.
Most aspects of land use and/or higway law - when graning relief, do so only to a property owner - and not a renter.
A property owner who allows someone else to cross his land is not automatically subject to an easement being created. Many states require proof that a use was known to the property owner for an easement by prescription to be established. Cutting across someones land if they don"t see you, even for 20 years, does"t mean much.
Also, in many cases, a property owner can give temporary permission to others to cross his land to avoid future claims of prescriptive easements or adverse easements.
In regard to courts and/or judges granting easements to owners of landlocked parcels - this does not happen in all states. And, in states that do allow it - like Michigan, it"s limited by many factors.
An owner of property can cut off access and it"s up to you to prove him wrong - not up to him to prove his right on his own land.
I suggest you read up on Iowa land law, and read closely. Also do a Lexus-Nexus case-law search for your area in regard to prescriptive and adverse easements and see what the current legal track record is.

 

[TomH in PA]

From what you wrote it sounds like the new owner is looking for a reason to make a decision either way. Understand that he's being careful about what he's getting into. The old saying that "you catch more flies with honey than with vinegar" seems to apply here.

Visit the new owner, offer to help him get settled. A couple of hundred dollars to rent an easement or maintain the lane might go a long ways too.

 

[buickanddeere]

As previously stated.1st thing is to do nothing that will tick off or offend your new neighbor.

 

[Lee in Iowa]

Thanks for all the replies. I have known the new owner for a long time and we get along well, just don't know how it will be in the future. He will not live on the property just rent out the farmland to the highest bidder. I am going to try to put in a crossing, but crossings can always wash out. I guess we're just not used to locked gates in our area. If my cattle get into his property I'd like to be able to get them out without finding a key to the gate or finding some other way in. I will probably contact an attorney to find out what rights my landlord and I have. If I did need access it would only be once to plant, twice to spray, and once to harvest and it all could be done when convenient for the new owner and his tenant. Lee

 

[Anonymous-0]

John T there is no need for him to pay anyone he needs to go to his local trustees and they will then go to the county att and it doesent cost any money thats why i told him to contac his trustees this is IOWA law and it works.Had a freind who bought some timber ground because it was cheap thought he could force an easement after chatting with county att he found out why the property was cheap and he is too cheap to buy access so there he sets with property and no access.

 

[Anonymous-0]

So what did your trustees tell you. These issues are becoming more now with city people buying ground splitting farms ect thats why you need to talk to your trustees as here in IOWA thats the way to get started on knowing your rights sometimes these things were in writing and recorded.

 

[Lee in Iowa]

All the trustees are in the field right now, will check with them first rainy day. Lee