Utility Debt Dispute, Wildlife Preserve, and Other Country Real Estate Issues

In this installment of a country real estate feature, a land law expert responds to questions about resolving a utility debt dispute and financing a wildlife preserve.
By Jean Vernon
December/January 1998
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The unspecified terms of a land sale agreement between sister and brother later resulted in a dispute with the brother's widow over payment of a utility debt.
ILLUSTRATION: LETICIA PLATE
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The following questions bearing on country real estate law were submitted by readers.  


Utility Debt Dispute

Q. I purchased 80 acres in New Mexico. I sold 20 acres of the 80 to my brother and his wife. We were to have a well installed and the agreement was that the first $5,000 toward the installation was to be paid by my brother in exchange for the 20 acres, and the remaining cost of the well would be split between the two of us. 

I did not live on the land, as I was still working in Arizona at the time. After the agreement was made, my brother and his wife bought a mobile home and moved to the property. Shortly after, my brother requested power be brought to the property. He entered into this power agreement without my consent. In addition, the power company installed a service pole and an additional pole on my property without my knowledge or consent. After I became aware of this, I did not interfere, as my brother was in failing health and I did not want to upset him. My brother's health did not improve and, shortly after, he passed away. This is where the trouble began. My sister-in-law accused me of owing her money for the well and cheating her. It was only through litigation that I was able to resolve the problem and purchase the property back at fair market value. The warranty deed agreement indicated the land was free of any encumbrance. However, when I contacted the power company to have electricity provided to me, they indicated that my sister-in-law defaulted on the contract and that, in order to have power provided to me, l would have to pay off the contract my brother and sister-in-law entered into.  

My question to you is this: What legal obligation do I have to pay for a contract I did not enter into — for property that was not owned by me at the time? I've since purchased the land back, but now it appears I cannot obtain power without paying a debt I did not incur.  

— James R. Bishop,
New Mexico
 

A. Please accept my condolences on the loss of your brother. There are several issues here and this is a classic case of why agreements, even between family members, should be in writing. When agreements regarding land are first made, everyone believes they will clearly remember the terms and that conditions will never change to alter the situation. Over the years, however, even with sincere and honest people, memories sometimes become selective or fail entirely; usually this is not a conscious act. The illness and death of your brother created another unforeseen event. No doubt your sister-in-law was left in dire straits and had a difficult situation to deal with, along with bills she could not pay. Also, she may not have clearly understood the agreements you had with your brother from the beginning. And perhaps your brother had the power installed on your part of the property, as well as his own, and planned on paying for both as a favor to you.

You did not name the town in New Mexico near which the property is located, so I could not determine how the local power company handles unpaid contracts. Your deed may not have shown any encumbrances because the power company may not have filed a lien on the property. Thus, it would not have shown up on the public record as a debt against your land. Like many power companies, yours may simply refuse to provide power until the debt is paid. Even though you did not contract for the power installation directly, it does benefit your property and most power companies are of the opinion that any and all successive owners must continue to pay off such a contract. After all, the power company did foot the bill up front for the installation.

You may want to contact an attorney to learn more about any rights or recourse you may have in your state for this situation.

Wildlife Preserve Funding

Q.We are a group of three private individuals who want to create a small (80 to 200 acre), privately owned, nonprofit wildlife preserve/environmental land lab in the Ohio/Kentucky/West Virginia area. We want it to include a small, low-impact, low-tech permanent residence for us, where we could live and carry out contracted environmental and wildlife observations and tests to help support (along with our own money) the place and further environmental needs.  

Our problem is that we have little or no start-up money. Are there any institutions or organizations to whom we might turn for help? Are there any government programs that we could look into? Thank you.  

—Philip E. L. Greene,
Xenia, Ohio
 

A. Since there are generally tight restrictions governing the types of grants that foundations and other nonprofit organizations can make to individuals, your best bet may be to incorporate as a nonprofit entity, then search for funding as such. Once you are ready to begin your search, one Web site worth visiting is that of the Foundation Center. There, you will find a wealth of helpful information, as well as links to various funding resources. Be sure to check out The Foundation Center's User-Friendly Guide to Funding Research and Resources, accessible from the homepage. The Environmental Grantmakers Association (EGA), a group of foundations and giving programs concerned with the protection of the natural environment, may also be of some help. It may also be wise to narrow down your topic to something more specific. Saying that you wish to "carry out contracted environmental and wildlife observations" is probably going to be too broad in scope for most grantmakers. Good luck with your search.

Easement Dispute #1

Q. I have a 30-acre farm in Mississippi. I was the first person to buy land on this 300-acre plot. The road was put in through my place with a 30 foot wide easement and it was installed in a way that it consumed about an acre of my property. I granted the right-of-way for it.  

Now, here is my problem. The influx of people into the area has increased, as has use of the road. This has caused a serious traffic problem in front of my home and my privacy has been nil.  

I was able to get permission from my neighbor to let the road cross his property at the corner where our lands intersect. I went ahead and installed a better turn in the road and recaptured my acre of property. The neighbor says he will grant me a right-of-way across his land. I will have to get a new survey done and pay all of the legal fees. I have no problem with this request. I moved the road and closed off access to the original easement.  

My question is, How do I get the easement crossing my property removed? I have one neighbor who continues to cross through my property. I realize until I give him a new survey of his new easement, I cannot stop him from crossing through my land. The new road is much nicer than the original one and has cost me in excess of $1,000. I do not want to cause hard feelings, but feel as though I have taken above average measures to provide a better road for all properly owners.  

— Bubba Goodwin,
Picayune, Mississippi
 

A. While you have taken great measures to create a new and better road for the other landowners to use, changing an easement is not so simple. Once an easement has been created, its location cannot be changed without the consent of the dominant owner(s), unless provision for such a change was included in the easement. That means that all landowners who benefit by using the easement must agree to its relocation. Along with this agreement, those landowners should formally give up their right to use the old easement. Both the new easement and the abandonment of the old easement should be legal documents and should be recorded.

First, you will need a legal description of the new easement. This can be accomplished by having it surveyed, as you planned to do. Once you have the description of the new road, you can have an attorney draw up the document creating the new easement and the declaration of abandonment for the old one. You should then take these documents to all of the landowners served by the easement and have them signed. Your state will probably require the signatures to be notarized. After all signatures are obtained, these documents should be recorded so that they may serve as notice to the world (and subsequent landowners) that the new easement is in use and the old one is not, nor will it ever be again.

You may have difficulty in that many owners are reluctant to give up a right, even though the new fight they are gaining may be of greater benefit. Good luck with this.

Road Frontage Dispute

Q.I have lived on this ranch for 26 years. A neighbor owns 160 acres blocking my ingress and egress from the county road. This neighbor covets my 430 acres that are landlocked and I have been paying lawyers for a year to negotiate with him. He has ulterior motives and refuses every settlement offer.  

The road into my land has been in uninterrupted use since 1891, when it was declared a public road. Doesn't the law consider this? Doesn't this then become a road by adverse possession in use for 107 years?  

The Hot Springs County Commissioners were advised that the 100 foot cliff which is along the county road constitutes access. When and how does one do that. This cliff is impassable. What are the laws concerning the access in this case, please?  

— Dorothy Fantry,
Thermopolis, Wyoming
 

A. There are some things that are not clear from your letter, but one thing is certain: adverse possession is not an issue here. If the road was made a public road in 1891, isn't it still a public road? If not, why not? That may have a direct bearing on your case. Even though the road may no longer be a public road, your continuous use should have created an easement by prescription.

Technically, your land is not considered landlocked because it does have road frontage, even though cliff terrain makes actual access impossible. Under normal circumstances, if land fronts on a public road, no other access will be given through any adjacent property. Undoubtedly that is what the county commissioners believe to be the case. However, if you can demonstrate the cliff is impassable and that you have used the road through the adjacent property for many years, you may be able to obtain an easement by prescription. Though unusual, in some states an easement of this type has been allowed. This is not an automatic procedure and must be pursued through the court system. This can be costly and perhaps your attorney has been trying to circumvent this by creating a settlement with your neighbor. If all else fails, you may end up in court with this. Good luck in resolving this soon.


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