Re: Road easement problems (long)

Posted by chooch on December 20, 2007 at 15:21:39 from (68.22.242.47):

In Reply to: Road easement problems (long) posted by MSD on December 19, 2007 at 19:49:28:

MSD,

I am a land surveyor licensed to practice in the states of Indiana, Ohio and Louisiana. Coincidently, I live only about 1 hour from John T and belong to the same tractor club. My first suggestion, as may others have said, is to consult with a lawyer. My only addition would be to make sure you get a lawyer versed in property law.

The following are key elements to keep in mind:
1) The property upon which the 33-foot easement exists is part of the 40 acres you purchased and paid for. The seller has only retained an easement. The exact language used in the easement is critical. An easement is only valid for the purpose so stated. If it states the easement is for access and nothing else, then his use of the easement is limited in scope. You state that the culvert was installed in the "lowest spot in his yard". If the culvert was installed under the road which exists within the 33-foot easement, then it is installed in "your yard" not his. Unless additional language is present, an access easement only gives him the right to cross your property, not to occupy it and maintain it as his own.

2)Is there a statement in the purchase agreement or easement as to who is responsible to maintain the easement or who shall pay the cost of maintenance? In your post, you say that no improvements can be made to the easement area without written approval by both parties. If that statement is present, then he violated the conditions of the easement first by adding rock to the road without obtaining your written approval. Furthermore, he caused damage to your property by creating a barrier to the natural flow of drainage whereby it now ponds on your property which brings me to the next item.

3) In most of the states in which I have conducted surveys, some type of law exists with the intent that you cannot interfere with the natural drainage patterns if such interference will adversely impact neighboring properties. Therefore, before altering the elevation of the road, your neighbor would have been responsible for installing the culvert.

4) The restrictions are most likely valid. However, the wording is critical. In Indiana, no fences, trees or structures is generaly interpreted as no above ground features which would exist at a higher elevation than the natural ground level. No improvements would be used to describe not being able to do anything with the land such as no utilities, culverts, buildings, fences or anything else.

Under no circumstances would I quit claim him the easement. If so, you relinquish any rights to it, including the use of it, unless you retain an easement for yourself. If you use a different access to you and your son's property, then offer to sell the easement back to him. If you currently use the same access, you could construct a new access for you and your son and sell the easement to your neighbor at such a price to cover the land cost and the cost of your new access.

In any case, the exact language is critical as well as retaining an attorney that understands property law.

Good luck.

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