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

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PHOTO: MOTHER EARTH NEWS STAFF
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.

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
respective
ly. 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
offthe 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.