Help! I need legal advice re: easements

[mdbarb]

My neighbor has an easement thru my property " for ingress and egress, 20' in width upon the existing roadway" The existing roadway is a gravel road about 10' wide.
He is now trying to widen the existing road and also take more of my land at the end of this road by adverse possession or prescriptive easement. I have hired a lawyer but also want to find any case law that relates to this for him. Has anyone had a similar experience? Where can I find similar cases?
(The Kubota came in handy in putting up about 400 feet of fence, the first day he tried to say some of mine was his!)

 

[Anonymous Poster]

<font color=blue>…My neighbor has an easement thru my property " for ingress and egress…</font color=blue>

I also had spent a few years in the court system fighting a farmer over adverse possession… (thousands of dollars later, I won… or did I?)

My take on this is… if your neighbor has been crossing your property to go to his property for a length of time “without” your permission… you find out, and tell him to stop crossing your property… then he can file for prescriptive easement on that section of your property (winning is another thing /w3tcompact/icons/blush.gif)…

If your neighbor is already on your deed mentioned for the “easement” to cross your property… he can never claim adverse possession on that section of your property… but he can claim adverse possession on another piece …

Anyone can claim adverse possession by…being open (for the whole world to see, can’t be secretive), exclusive (only that person, no one else), continuous (the clock cannot be broken or the time starts over)and hostile and notorious (ex.-that person posting “No Trespassing Signs” on your property), and under claim of ownership for the statutory period of that state… (again…winning is another issue)

 

[gws]

He has a 20ft easement, but is using 10 and will make it wider? will it be wider than the 20ft easement? how much wider?

 

[rocky2]

Brings back bad memories. In Pa there's an old law (1921) that states that any "un-opened" (developed) access left in excess of 20 years, from centerline the access reverts to the owners of the abutting properties. I fought that battle when trying to get a public water line, and trying to convince both the Municipality and the utility company that the access didn't need to be formally "abandoned". One of those catch 22's utilities won't run on a private road, township wouldn't "abandon". While my situation was different than yours, it may be cheaper (and less frustrating) to offer to sell the easement to the pain in the a**, even at a ridiculous token price and have it recorded it as his 20' strip of property than to pay the lawyers and all the grief you'll have.

 

[mdbarb]

There are really two issues here.
1. His easement description was poorly written. It says "an easement 20 feet in width for ingress and egress upon the existing road.......to be surveyed later" The existing road has never been wider than about ten feet. To make it wider would involve cutting into a slope. I contend that he does not have an easement for twenty feet but only an easement speciffically "on the existing road" whever it meanders within this twenty foot width that he was supposed to have surveyed when he boought it 14 years ago. The easement was for "ingress and egress" so he should have no rights over the uphill area that is not driveable. The cases I have found tend to rule in favor of the situation that causes the least inconvienence to the subserviant tenant (me) as long as it accomplishes what the easement is for (ingress and egress).

2. The other issue involving adverse possession and prescriptive easements revolves around this situation:
When the above mentioned roadway gets to his property, one can continue unto his property to his garage or turn left and continue on my property parrallel to the property line. Well he has continued parrallell to the line and parks an RV on my property. When I bought the property 7 yrs ago, I pointed out that he was on my property. He was surprised, thought it was his. I (naively) said thats ok, we'll work something out - buy or rent or something. This went on for years with no urgency by either of us with him still parking there with my permission.
Then a few months ago he had it surveyed, clearly showing his RV well over the property line and I get a letter from his lawyer saying the are attempting to claim right to the area (not just the parking, but also the adjacent area) by adverse possion or prescriptive rights.
I immediately put up a fence along the surveyed property line.
So far he has been to court three times. Twice in trying to get a temporary restrainning order to keep me off of my own property. Both times they were denied. Yesterday he tried to get an injunction against me for activities on my own property i.e. building fences, storing building materials, parking cars etc on my own property(!) not even on the roadway easement. This was also denied by the court.
So now I have spent thousands of dollars defending my property and his RV still sits parked on my property.
Thus I am researching any other similar cases for the future battles but have not been to effecient in my internet searches.

Sorry to be so long winded but beleve me I could have gone on alot longer about this.
Any help from the TBN team is appreciated.

 

[WVBill]

Could you counter-claim title to his RV by adverse possession?

 

[dmccarty]

mdbarb,

I'm truely sorry to hear about your problem. Stress is not a word
that is discriptive enough.

Can you get his RV towed? At this point he has declared war so
go for his family jewels.

The only "story" I know that is similar is one I ran across when
we where looking for land.

We found a 20-30 acre parcel. Not really what or where we wanted
land and it was overpriced. A man had lived on the land for
quite a few years in a "house" that was built out of an old bus and
wood. He had NO indoor plumbing of any kind. Certainly no septic
system. I never did find the outhouse so he most have torn it down
and filled it in. We call this property the "Rabbit Man Land" because
the guy raised rabbits for food and money. There was a pile of old
chicken cages about 10 feet tall on the property along with the bus,
water bed, two or three old cars, a boat, batteries, 55 gallon drums
of who knows what, etc.

So what the heck does this have to do with your situation? To get to
the "house site", there was a driveway, well dirt path. Once you got
up hill to the "house site" a fence suddenly appeared in the woods.
Now the fence just started in the middle of no where and ended in
the middle of no where. One day I was standing there puzzling over
the fence that was not tied to anything and the neighbor drove up.
Now the neighbor has a house that can barely be seen from the
fence but his driveway comes kinda close. So he stops his truck
and we have a chat.

What had happened was that the seller had lived on the property
for years and his "house" straddled the lot line. When the neighbor
bought his land it was on the condition that the seller got the
hermit to move his "house." Of course this did not happen. The
new neighbor gave legal notice to the guy to move his house off
of his land. A couple of times. After about six months he brought
in a bulldozer and move the "house" across the property line and
built the fence.

Problem solved.

I would ask you legal guy what you need to do to two the RV.

The impound lot is going to charge him a fortune for storage....

Good Luck,
Dan

 

[Ozarker]

I'm no lawyer but I would go to the court house and file a lean against his RV for storage fees at about $5 per day for however many days it has sit on my property.

Lets see, 7 years = 2555 days X $5 = $12,775 plus interest.

 

[Wingnut]

Right On !!!
You stated that you'd let him continue to park on YOUR land anfter he acknowledged it was YOURS ... and you left it at "we'll arrange something" ... which should have left him with the understanding he was there at your sufferance.
This is EXACTLY the right time to go register a lien on his motorhome and send his lawyer a bill for storage of said RV.
What's sauce for the goose ....

 

[mdbarb]

I've talked to the sheriff about trespassing. He said they won't deal with it as its a civil matter. Tow companies are very reluctant to do "private tows". I saw somewhere that I can only backcharge as far as three years but thats still an option. My lawyer says that my physically removing his property could make me liable for damages later on and would create mor eproblems than it solves.
It is soooo tempting to do some kind of proactive actions but apparantly the courts may frown on that and right now I still am in the courts good graces.

 

[rmorgan]

mdbarb--

I'm not a Cal lawyer and not giving Cal legal advice.

As you must know by now, the elements of adverse possession under California law are

"1) possession was held under either a claim of right or color of title; (2) the premises were occupied in such an actual, open, and notorious manner as to constitute reasonable notice to the record owner; (3) occupation was both exclusive and hostile to the true owner; (4) possession continued uninterrupted for a period of at least five years; and (5) the claimant paid all taxes assessed against the property for the five-year period. (Code Civ. Proc., § 321 et seq.; 6 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 16:2, pp. 6-8.)"

Although I'm not a Cal lawyer and not giving Cal legal advice, by your description, as to anything outside the existing easement to include the parking space, your neighbor's claim fails on 1, 3, and, I hazard to guess, 5. You made clear that he was parking on your land by your consent, so no claim of title. You agreed, so not hostile. It certainly should be easy to check if he's paid some part of your property taxes.

I'm not a Cal lawyer and not giving Cal legal advice, but it seems like proscriptive easement is not much different. "To establish the elements of a prescriptive easement, the claimant must prove use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right." Although I'm not a Cal lawyer and not giving Cal legal advice, here, he fails at least elements 3 and 4, for the same reasons.

Although I'm not a Cal lawyer and not giving Cal legal advice, it seems like as to the existing easement, it is common for a driveway ingress/egress easement to specify a wider space than the actual way for reasons of maintenance, etc. I think he would be limited to the existing roadway +/- even without the "existing road" language, and your analysis is is spot on that those words strengthen your position.

I'm not a Cal lawyer and not giving Cal legal advice. But if I were, I would think that it might be cost-efficient in the long run to go in now with an action for a declaration of rights to have the court declare that you own the land and that the easement is what you say it is--after three failed injunction attempts, the neighbor will look like an [censored], possibly giving you some advantage.

If I happened to be a Cal lawyer giving legal advice, I might think about sending a letter to the guy saying that his MH is on your land, that you are withdrawing your permission, and will have to have it towed away if it is not removed by, say, Tuesday.

Good luck. BTW, did I mention . . . I'm not a Cal lawyer and not giving Cal legal advice?

 

[heehaw]

if he moves his rv, park something there, or dump some big rocks there so he can't pull it back in.
heehaw

 

[Anonymous Poster]

Have you considered a ligthning strike on his RV ??

Maybe starting a pig farm ???

Of couse I'm kidding !!!!

If their being such jerks now ...it's only gonna get worse when they get done with court.

Settle this now and avoid a future of battles. You should both be able to sort it out. You may be in the right, but sometimes its better to suck it up and avoid the cost and hassle of the battle.

Does he have any land that you would benefit from if you arrange a foot for foot swap ??

Good luck...

 

[wasabi]

Tough deal. Bad neighbors try our patience and create stress!

My .02 ---You have previous verbal "agreements" with your now disagreeable neighbor that he is apparently not honoring. Consider your actions going forward as part of ongoing negotiations and seek closure. Fault to the conservative side and don't over-react.....Stay in the court's good graces....that, and "what is right", may wear him down eventually.

I side with those that advise you to immediately send him (via his attorney) a letter demanding that the RV be moved. By all means cite your right to, (be prepared to enforce) per diem storage fees. You might even go so far as to state they will be retroactive if RV is not moved in X days. That is called leverage, and while not necessarily appreciated, it is nonetheless likely to be respected.

On the other hand, taking matters into your own hands by moving the RV will likely give rise to exchanges of passive-aggressive blows for years to come.

If the RV is moved, build the fence....if not, put a lien against it. You will eventually collect....then take a deserved vacation from the jerk (after rigging your property against possible adverse intrusion)

"the sharpest sword is rarely unsheathed"

 

[mdbarb]

boy do i ever wish he would move the rv just once > all i need is about one second> but unfortunately he has moved it twice in seven years and i"m sure he won"t budge now>

 

[mdbarb]

Thanks for the non legal advice from not a Cal lawyer.
Correct - I also feel that they lose the adverse possession as they didn't pay the taxes and I gave permission. I'm not clear on what "possession was held under either a claim of right or color of title" means but even one of these points is sufficent to deny the claim.
The prescriptive rights issue is almost as much a given as I gave permission when I bought in Sept. 94. It gets just a little fuzzy though: He bought in March of 89 - five years and six months before me. They did not live there - They had a tenant which they removed with some difficulty before moving in themselves. I don't yet know the dates but I feel confident the tenant did not park in this area as there is a two car garage closer to the house. So if they rented to the tenant and/or didnot use that space for about 6 months and a day from when they bought in 3/89 to when I gave permission in 9/94 then they have no prescriptive rights. At least thats how I see it.... not being a lawyer.
I can send him a letter revoking permission but it will just go ignored as they attempt the othre junk mentioned above.
BTW now the judge wants us to see a mediator. I dunno I just have a feeling a mediator will just seek a middle ground compromise so no one is happy. And anyway how can I compromise on some one trying to take a 30' srip of my land - by giving him half?!

 

[rmorgan]

mdbarb--

As to the 5.5 years prior to you--even if he had managed to establish a right at that time, I think he gave it up by not asserting at that time that he already had the adverse interest. Certainly it would be his burden to show that he believes he had a right established by 1994, and if so, why didn't he pursue it then? Courts don't look kindly, as a general rule, at sleeping on one's rights. The phrase "claim of right" means that he said it was his and you were wrong to say it was yours, which he didn't. "Color of title" means that a title error had created the belief that the land was within his lot based on a colorable title--the more common adverse possession situation being when a botched legal description gives somebody the mistaken belief that land is theirs, and the "real" owner doesn't do anything about it. As to mediation--the mediator can't make you do anything, and just because there is a dispute doesn't mean that the truth lies in the middle. It often doesn't. You definitely need Cal advice from a Cal lawyer on this one, but I do believe that if you demand removal and it does not occur, you have the right to have the vehicle removed.

Good luck.

 

[mdbarb]

thanks rmoran

i will keep you posted> all is quiet in the battlefront so i will try to enjoy that for a few days> we shall see

 

[Anonymous Poster]

MDBARB,

I'm not an attorney but I'll toss my hat into the arena. I'll focus my comments on the RV issue. Is the RV licensed and registered?? If not, are there any local ordinances that prohibit unlicensed/unregistered vehicles on a persons property (i.e. abandoned vehicles)? Two, are there any local ordinances that establish setbacks whereas the RV being parked too close to a property line would constitute a violation and thus have to be moved? Three, circle the wagons. Fence in his RV. If he tries to obtain the property by adverse possession, perhaps he'll be limited to that which the RV actually occupies. Four, if the RV has sat for a number of years, perhaps a call to the local conservation dept with a message that his lawn ornament is leaking oil/antifreeze might turn up the heat abit. I hope the issue does not linger in court, been there.

Russ

 

[micromike]

Yep, about time to build that fence and goat barn you've always wanted. Why heck, that abandoned RV would make a perfect goat barn!!! All you have to do is fence in your property. Maybe need a few roosters to keep em company! Well, if you can't use the RV surely you can find some old boards and nail something together., maybe some old 55 gal barrels (for the roosters) and such. If I was at home right now, I'd attach a picture I took a few years ago of a goat living in an old railroad engine. Really cute! I'll see what I can do this weekend. Anyway, if all else fails, be creative!

Good luck

Mike