Legal Land Issues: Property Easements, Adverse Possession Laws and Land-Locked Land

A veteran real-estate expert smoothes the wrinkles of land ownership in the Rural Real Estate column. This issue includes information on property easements and logging trucks, adverse possession laws and land-locked property.
By Jean Vernon
October/November 1997

I am a real estate broker who deals exclusively with country land. There are just about as many questions regarding land ownership as there are landowners, and knowing what to do about a given situation can be difficult to determine.
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A veteran real-estate expert smoothes the wrinkles of land ownership in the Land and the Law column. This issue includes information on land easements, adverse possession laws and land-locked property. 

Q. Our problem is with wide-load logging trucks (over 10 feet-wide) running next to our property. The easement through our place is 10 feet wide, plus there are two short curves in the road which put them over the easement. This easement was in use all last year. In time, the logging company also installed culverts which washed out access to our home for 21 days. We could not get our autos in and out. I stopped them for a short while this year, but now they have a restraining order to ensure they can use the road for 30 days. We need a good land attorney, one that is nearby but not associated with the sawmill or the landowner who is giving us trouble. How do we find one?  

—Michael Shanda
Forestville, CA
 

A. Good real estate attorneys are not always easy to find, Michael. You need an expert on easements and one that can help you mitigate damages caused from the road use, although you may not be able to stop such use entirely. If you are concerned about attorneys in your immediate area being sympathetic to the landowner and the mill, try finding one in other surrounding towns. To find an expert attorney, ask several real estate brokers and/or agents. Also, ask the title companies for the names of attorneys who handle real estate. By doing this, a pattern will emerge, and one or more names will stand out. Talk to each one, and be sure to ask about fees.

Q. I own a small farm of 10 acres. I have two acres between my neighbor and myself that used to be a hayfield. I no longer farm and simply let the hay grow up. About three years ago my neighbor asked if he could cut the hay. Naturally I said yes and was thankful. Since then he has cut it with his lawn tractor.  

Recently someone told me that if a party maintains another's piece of land, the land could be claimed after seven years by the one who maintained it. Is this true? I'm getting worried. Any advice you can give me will be greatly appreciated.  

—Jim Beltz
Center Valley, PA
 

A. The issue here is whether your neighbor could claim your land through adverse possession, and you are right to be concerned about it. The adverse possession laws vary for each state, regarding the actual conditions that must be met and the number of years involved. In general such possession and claim must be (a) hostile, against the owner's wishes; (b) actual, physically occupied in a manner consistent with the land (for example: farm land may be farmed, but the claimant needn't necessarily live there); (c) notorious, not hidden; (d) exclusive, not shared with the owner; and (e) continuous, for the number of required years. Under claim of right, the claimant must believe he or she has a valid claim of some sort. ALL of these conditions must be met for land to be claimed by adverse possession.

An attorney can give you information specific to your state and make suggestions on how to avoid a claim against your two acres. It may be as simple as formally giving your neighbor a written statement allowing him the right to cut the hay.

Q. I enjoyed your article in the July issue. On the question of easements I feel the property owner usually has the responsibilities but few benefits. You state that "You have the right to all production . . . crops, for example." My property has a utility right of way and a state highway right of way. The easements say I must keep them clear for access, since they are regularly bush logged and mowed by the utility and highway departments respectively. The only crop I could grow is grass. As far as I'm concerned, I pay for land I can't do anything with. I'd appreciate your comments.  

—Joseph KayRoute
Phenix, VA
 

A. Whoa, there. It is time to step back and rethink those easements. No doubt they existed before you bought your land, yet you chose to buy it anyway. Those easements do benefit you directly by providing good access to your land and readily available power. Though you must allow easement access, it does not sound as if you are burdened with the maintenance responsibilities. With regard to profit from easement land, unless written otherwise, the easement user generally is not entitled to profit from the land; only the owner is—provided the land produces anything of value.

Q What, if anything can a person do if they have land-locked land, surrounded by other property on four sides? I have had all kinds of answers from "You must be granted a right of way or easement" to "You have a real problem." Your outlook on this would be much appreciated. Though I live in Maine, the property is in Massachusetts. 

—B. H. Fritz
Union, ME
 

A. Whether you will be able to acquire access to land-locked land in Massachusetts depends on several factors. Generally, the courts will grant an "easement by necessity;" but not in every case. If the owner of the land-locked land created the problem for a deliberate reason or sold adjacent land without retaining access, then the chances of obtaining such an easement may be reduced. The best course to take is to consult a real estate attorney in the county in which the land is located or to consult an expert from the Massachusetts Conveyancers Association.

Q. We bought 6.68 acres that originally were part of a large dairy that was broken up, with some parcels of land going to family members and some sold outright. The original seller's daughter owns land adjacent to ours and plans to install a mobile home on the rear of her property for her caretaker. The row of trees that divided our two parcels was removed years ago. We are concerned that the mobile home will be installed too close to our land but cannot afford a survey at this time to establish the true property line. Thanks for any help you might provide. 

—Jeanette Sharinghousen
Scappoose, OR
 

A. You are right; surveys can be prohibitively expensive. If you can't bear the cost burden alone, perhaps you two landowners can share the expense. After all, if the mobile home is not within the setback lines for your area, it will probably have to be moved at a later date when the land lines are established. In the meantime you could simply measure your property with a 100-foot tape measure to get a good idea of where your land lines should be. Most Oregon land is laid out with the government survey method so this shouldn't be too difficult if your land is rectangular in shape. If you do not know the exact dimensions of your land, the county Assessor's Office may be able to give them to you. Using a compass, start at any one corner you are reasonably sure of. Measure the length of that line. Mark the corner, and turn 90° to measure the next line. Proceed around the next two corners in this manner and back to the point of beginning. Before you start you will have to determine the declination (degrees off of true north) for your area and allow for that when reading your compass. Any surveyor or local map store can give you the declination.

Naturally this method is not as accurate as a survey, but it will give you a solid idea of the where the line lies between you and your neighbor. The best course is for an actual survey to be done as soon as possible.

Q. I am a new landowner. This spring a neighbor was burning the old grass off his place when his fire spread to my property. I assured him it was doing no harm. In the ensuing discussion he said it was every landowner's responsibility to burn the old grass out of the ditch. I asked him to help me burn out the ditch on my north boundary, and he agreed. The fire got away, and the neighbor disappeared. Another neighbor's pump house was burned, and he was understandably upset. I explained I have no money to replace the pump house and pump, and I have no homeowner's insurance due to defects making my house uninsurable. Yesterday he came by with a quote for a $3,600 pump and $400 for a pump house. His insurance will only pay $500, and he wants me to pay the rest. l have no money for this! I don't know the value of the pump but know the pump house was rickety old. I feel he is asking me to buy him a Cadillac to replace a Pinto, and I built my own 8 foot by 10 foot shed for less than $400. Can you please tell me what to do? 

—Diana Smith
Stevensville, MT
 

A. Whether you like it or not, you are definitely at fault here and will have to bear up under the responsibility. Losing a pump and pump house and going without water is a serious loss to your neighbor. Some suggestions: Find out what size pump is required and find out what brand of pump was burned if the neighbor will tell you. Obtain quotes of your own for replacing the pump and pump house. Even though his pump house was old, it will cost to replace it, and though you can build a shed for minimal money, it is not your neighbor's problem to rebuild his own pump house when the loss was someone else's fault. Work with him on this, or you may find yourself in court and may be responsible for more than just replacement costs. Equally important is maintaining good relations with your neighbor through this unfortunate affair. Check with an attorney to obtain more details about the extent of your obligation in replacing your neighbor's loss.

Q. I am a second generation cattle rancher. There is a road through my property that the county has always maintained even though it was never deeded to the county. The County Highway Act says public funds are not to be spent on roads that have not been properly acquired. People have bought land behind me and access their land on that road. My dad and I have always had cattle on our property and the road. Recently a judge ruled against me about the cattle on the road. He said he did not have the authority to make me fence off the road; however, I must keep my cattle out of harm's way! He further stated I could get 100 shepherd dogs to keep my cattle off of the road. I have advertised in a local magazine to buy the dogs and am pursuing other measures as well. 

A fencing company wants $27,557.50 to fence off the road. With cattle prices down, my cows are only worth approximately $15,000. Those cattle have been on that road for 50 years. We are appealing the decision that was made against us. As more people move to the country, farmers are having to pay to defend their land and rights. The judge in essence has condemned my property without compensation. 

—Kevin Sanders
Fayetteville, TN
 

A. There is more than one issue here. The first is the county maintenance of the road. It sounds as if it has become an easement by prescription, that is, used for so many years that it became public access. If that is the case, the county probably has every right to maintain it.

The second issue is cattle at large. Even though lengthy, your letter did not give enough information regarding the court case against cattle on the road. To advertise for shepherd dogs or an animal trainer only begs the issue and is not a serious effort to solve the problem.

If you haven't already, you should definitely contact an attorney. It is unfortunate that the burgeoning population is putting more pressure on farmers and ranchers, but you need to get legal advice on whether to fight the problem or work to resolve it.

Q. I have 1.10 acre. In our town you can build on 1/2-acre. I would like to have my daughter on the back V2-acre but need an easement. To go from the front of my land to the back 1/2-acre would take a driveway over 200 feet long, but going through our neighbor's place on the side would require a short easement. How do we go about getting an easement? Do we offer him payment? 

—Elizabeth Sievess
Lincroft, NJ
 

A. Your daughter and her husband are fortunate to have such thoughtful generous parents. Generally, when an owner can provide an easement, even though difficult and lengthy, the adjacent owner can't be forced to give an easement. However, you certainly can ask the neighbor if he will grant an easement. He may, and he may want the money you are prepared to pay. Consult your city zoning department, and they'll fill you in on that score.

Send your questions to "Country Real Estate," c/o MOTHER EARTH NEWS, Arden, NC 28704 or via e-mail at MEarthNews @ aol.com . Enclose a photo and we'll make you famous in the bargain. Please keep in mind that state laws vary and that this column is no substitute for local legal advice. 


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