Land Laws: Claiming Land, Granting an Easement, and Adverse Possession

Our resident land laws expert exposes a scheme related to claiming land, and answers reader questions about land ownership and use.
By Jean Vernon
February/March 1999
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Claiming free land in the U.S. isn't as simple as recent ads represent (or misrepresent) it.
ILLUSTRATION: WARREN GEBERT
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Unfortunately, because so many foreigners have claimed large tracts of U.S. soil under these laws and then converted the land to other uses, the BLM has placed a moratorium on granting ownership through mining patents. This has been in effect for over four years. It is still possible to stake a mining claim, but at present, establishing a permanent residence on a claim is not allowed, nor will a claim ever ripen into a patent for ownership. Also, the mine must be worked to keep the claim valid. Naturally, a great deal of paperwork for the claim and some filing fees are required by the BLM.

Mr. Temple justifies his fee by citing his research costs and long distance calls to gather the information, but, in actuality, the information is out-of-date and untrue. The correct information is readily available at no charge to anyone who contacts their regional BLM office.

Q: Recently, I decided to purchase a property here in Wrangell, Arkansas. It's just over two acres, with an old dwelling (it's not handsome but, with TLC, could be livable).

However, the real estate broker is somewhat difficult to reach by phone and occasionally in person. I suspect she may have designs on this property for herself or a close friend. I am a WWII veteran, age 85. Could this be age discrimination? I would appreciate your professional opinion.

- Orvall Kyle, Arkansas 

A: This sounds like a matter of miscommunication. Sometimes, when a person indicates interest in a property, the broker mistakenly perceives it to be mere curiosity. You should make an appointment to meet the broker or go to her office and tell her directly that you want to purchase the property.

There could be another reason the broker has made herself scarce. Perhaps the broker believes that you may not be able to pay for the property and is reluctant to write up an offer that may never be accepted. Do you have the necessary cash to make the purchase? Have you been qualified for the necessary bank loan, or do you have enough money for the down payment if the property is offered on a land sales contract? Do you have sufficient income to make the monthly payments? It is up to you to be forthcoming with this information to the broker, so that when the seller receives your offer, he or she can be reassured that you are capable of handling the purchase.

Good luck with this. That house sounds as if it could use someone like you.

Q: There is a strip of land between my seven acres and a neighbor's 40 acres. The strip is 30 feet wide and about 300 feet long, making up about one-fifth of an acre. The strip was purchased from a member of my wife's family in the 1930s for a right-of-way back to some woods. I checked with the courthouse, and, sure enough, the buyer has paid taxes for that strip for all these years.

The trees that are part of the strip have now grown to 75 feet wide, reaching into my land and my neighbor's land. My neighbor wants to grow beans or corn on my seven acres, but the only way to get across to my land was to cut a path straight through this strip from his land to mine. The man who owns the strip asked why that cut happened. We told him and he seemed satisfied and OK with it. The only thing I am still interested in knowing about is the right-of-way. Since he has been paying taxes on the strip for some 40 years does that mean be owns it legally? And can I do anything about getting the strip back, except pay for it if he agrees? Thanks.

- Elmer LaDue, Indiana

A: It sounds as if the strip is probably owned outright and you probably have no claim whatsoever to it. In fact, you actually had no right to cut trees on another's land and are fortunate the owner didn't object.

The owner of the strip is not likely to sell it to you, if it's his only access to his woods. However, you can ask him for an easement to cross the strip. He may give it to you, although he is not bound to do so. If he does, be sure to have it recorded. If he is reluctant to give you an actual easement, he may be willing to give you a license to cross the strip during the farming season. A license is not as permanent as an easement and may be withdrawn at any time. Maintaining an amicable relationship with the owner and respecting his rights will probably go far toward ensuring your ability to cross the strip in the future.

Q: I own 20 acres of property in upstate New York. Shortly after buying the property, I built a small log cabin way back in the woods, nearly a half mile from the paved county road. Just recently, I've completed construction of a bigger house closer to utilities and with easier year round access on the same property. 1'd now like to sell the smaller log cabin. My problem is this: for reasons specific to this property and the relative locations of the two buildings, it would be preferable to retain ownership of most of the land and sell off 20 acres surrounding the log cabin, thereby eliminating the possibility of any direct road frontage to the parcel. There is an established gravel road now providing access to the cabin. Is there any possibility that this road might serve as a legal right-of-way? I should mention that the gravel road is about 2,000 feet long. Any other problems you might foresee? I'd appreciate any advice you are able to offer.

- Andy Breese, New York

A: What you want to do can be accomplished by granting an easement from the maintained road across your land to the 20 acres. You will still retain the ownership and use of the land that the easement crosses, but you will grant right to the buyer to utilize the roadway to access his or her land. You will probably need to accurately establish a legal description for the easement that encompasses the gravel road. The easement must be wide enough for maintenance, and it is a good idea to include a provision that enables the user to install utilities in the future. There may be a customary width for this type of easement in your area, but the easement may be any width that is practical. The easement should be recorded in your county public records.

State laws governing easements vary. When you are ready to sell the 20 acres, you should ask a local realty agent who handles a lot of land transactions in your area for advice about how to get started in creating an easement on your property. Once this is done, you should have no trouble in selling the land.

Q: About seven years ago, I bought about four acres containing our house and other old farm buildings. My property is shaped like a triangle. On one side is the road. On another side is Mr. D. On the third side is Mr. W. My fence line with Mr. W is grown into a row of trees, and at the end of this tree line, the fence terminates in a "T" at Mr. D's land. My line with Mr. W is obviously down the old tree line, with the old fences grown six inches into the tree. This is only 25 feet from the house. My house was built in 1870 and this line never changed. Mr D. mailed a survey to Mr. W saying he (Mr. W) owned all along the back four feet of my 60 foot shed, a large portion of my yard, and right along my house skimming the end of it. His survey also claims he (Mr. D.) owns the end 10 feet of my 60 foot shed.The real lines are obvious, looking at the old trees and fences. The surveyor says they had bad equipment back then and wrote it wrong. Mr. D. is having fun with this and says be's coming soon to tear down my shed. Mr. W. won't sign a quiet title to restore my borders.

Surveyors can't change lines without changing writing if it's wrong. My lawyer hasn't done a thing, and neither will the sheriff, county attorney, or anyone else. I caught this same surveyor changing the township quarter lines with a map of my place in his hands. This is the only surveyor in our county and I believe be is bought and paid for by Mr. D. and .his 900 acres. That's right, a guy with 900 acres is going to tear down my garage because of 10 feet that isn't his. And, worse yet, Mr. W is going to break an obvious 130-year-old line and accept that be owns a portion of my land and buildings. Jean, we are stressed and need an end this year. Who watches over these surveyors and what can we do? We just wanted to be friendly neighbors and raise our small children. Thank you.

- Rob Miller, Minnesota

A: What a mess. Occasionally a survey does turn up an error in the original survey, but this does not always mean an owner has to give up his land. If your own attorney has given you no guidance in this affair, you may need to seek another who will. To find one, ask the realty office that is the busiest with land sales in your area to recommend one, or ask a title company whose attorneys handle the majority of land transactions.

Your new attorney may recommend that you have your land surveyed by a surveyor of your own choosing, possibly one from another county. A surveyor from another county will be competent in your area.

If a second survey shows the recent survey to be in error, your attorney will need to take steps to get your neighbors to leave you alone. If the new survey confirms the accuracy of the recent survey, all is not yet lost. You may possibly have a case for claiming the land within your yard through adverse possession, or through other laws in your state that apply to this specific problem. An experienced real estate attorney will know the best way to handle this, and, at the very least, he or she should take steps to ensure your neighbors don't start tearing up your buildings until this is straightened out.

It would be unfortunate — but not unheard of — if your suspicions about the surveyor turned out to be correct. Your new surveyor may be able to provide information regarding the governing agency for surveyors in your state and how to lodge a complaint if your suspicions prove to be true.


Adverse Possession?

The rationale behind the concept of "adverse possession" is to encourage landowners to be vigilant against encroachers and trespassers. Although the term varies slightly in its implications from state to state, it generally means that if a neighbor has used a piece of your land (say a hundred feet of woodlot in your backyard) to expand his garden, and continues to use that land for a period of time (ten years usually), then the land may well belong to the neighbor and not to you. Two conditions must be met in order for adverse possession to be valid.

1. The neighbor must be fully and openly in possession of the land in question (by fencing it, for instance).

2. The neighbor must have the intention to possess, while the owner does not.

There is enough flexibility in these requirements to allow courts quite a bit of decision making room. Nevertheless, there are many adverse possession rulings in favor of the encroaching neighbor, and a smart landowner will make frequent trips around the property (as well as obtaining updated and surveyed boundaries) if his intention is to keep it.


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