Culvert Pipe Quandry

dave1949 · May 30, 2014

Gosh, that's an odd property situation.

If I understand it, you do have legal access, it's just going to cost you. Is the property worth spending the 50-60 grand for you own driveway? That's a decision I would make if in your shoes.

Is your property the only access to the Cherokee land, or is it just the least expensive and less trouble for them to use yours to get to theirs? Maine property law forbids denying access to landlocked parcels if there is no road frontage or deeded right of way. If your property is the only access, then building your own driveway won't prevent the Indians from using your existing road to access their land.

State laws all vary, and who knows what legal complications are added with a US Govt. Trust for Indian lands. In Maine, since you do have owned access to your property, you are being done a favor by allowing you to cross the Indian land to reach your driveway. By the same token, if the Indian land can be accessed without crossing your property, then there is no legal necessity for them to use your land.

If you deny the use of your road, then it's likely they would deny your use of their land to access your driveway, or make your life miserable in some way or other. I don't think you have many good options other than to make the best of an odd situation.

ovrszd · May 30, 2014

Dave, that's why I mentioned the easements. They answer all questions. Without them, you have nothing more than the mood each particular party is in on any given day.

dave1949 · May 30, 2014

ovrszd said:
Dave, that's why I mentioned the easements. They answer all questions. Without them, you have nothing more than the mood each particular party is in on any given day.

Easements and deeded ROW's are certainly preferred. However, under Maine's property laws you can't prevent reasonable access to a land-locked property--easement or not. I guess it becomes an adverse easement. I'm sure those laws vary from state to state.

The owner of the land being crossed gets a lot of latitude in the choice of access location, and the cost is borne by the person needing to cross. But bottom line, you cannot legally stop them from crossing no matter what mood you are in.

That is what I was told by a lawyer when we bought some adjoining land. The parcel was inherited by two brothers, they split it up between them and one brother kept the part we didn't buy, which became land-locked due to the split. That is what prompted me to ask the lawyer about that.

The land-locked parcel is accessed via the driveway of yet another parcel in front of it. It's been that way for years and apparently has never been a problem. There is a small hunting camp on the land-locked parcel. I don't think it gets used very much and certainly doesn't generate much traffic on the neighbor's driveway. But, you never know what the future may bring in these situations.

square1 · May 30, 2014

If you've been using that 100 sq. ft. of driveway for 11 years you have probably established a prescriptive easement or adverse possession. Sounds like you have 3 choices: spend $50-60,000 on a driveway, a good lawyer, or a helicopter

There may be a 4th the Tribe is going for, if they can get you to abandon the property they can buy it at the tax sale for pennies on the dollar if they make it known there is no access.

Claire Knowles · May 30, 2014

Already checked into adverse possession, color of title, etc...great ideas but you can't file that against government land..(although as taxpayers we technically OWN it). House is owned outright, so no tax sale now or ever. Wonder if they'd want to buy the whole kit-and-caboodle if no-one had access to THEIR homes for a week or so....??

square1 · May 30, 2014

I don't own the very bottom of my 325' long driveway, (about 100 square feet).

So the 100 sq. ft. (or about 10 linear feet, if drive is 10 ft. wide) closest to the road doesn't belong to you. Is that 10' linear feet possibly in the road Right-of-Way (ROW). Typically the ROW extends beyond the actual road surface some distance. Here it's 31 (maybe 32) feet from the center-line of the roadway (not the center, the center-line which could be pertinent if there's any curve in the road). Are there utilities running along the road, possibly that 10 lineal feet is in the utility ROW?

Having just ended a bitter property dispute and the accompanying anxiety, sleepless nights, etc... I really feel for you and wish you the very best.

dmccarty · May 31, 2014

100 square feet or 100 linear feet? I would not think it would cost that much, even if there is a hill side that has to be blasted, to clear 100 sf. 100 linear feet I could see costing a bunch of money to clear. Are you sure about the accuracy of the survey? Have you checked the GIS office? I can look at parcels in my county on the Internet and this include aerial photos and plots. I think Google maps and Bing also show property lines. Those lines maybe not be perfectly accurate but it is a start. Have you checked your deed? I have seen deeds that mention distinctive features to locate the property lines.

I mentioned MDBarbs discussion that started in 2002, http://www.tractorbynet.com/forums/rural-living/14251-help-i-need-legal-advice.html. There are 54 pages of discussion that lasted over a decade. The summary of MDBarb's situation is that he had an easement issue with a neighbor, and in the end, it cost him hundreds of thousands of dollars even though he appeared to be in the right. Easements problems can be very painful.

My understanding is that in NC, landlocked parcels are not allowed. There has to be access to that parcel but it does not have to be via someone else's land even though that may be the most convenient and cheapest route. It sounds like you own most of your driveway and the Indians are using your property to access their land. At this point, it seems it comes down to a couple of points.

If you clear enough room for your own access, can you prevent the Indians from using the rest of your driveway? Do they have an easement on your land?
Do you have an easement on their land for that little bit of driveway?
Are you absolutely certain you do not own that little bit of driveway?

I have a family member who shares an easement with a few other neighbors. A group of friends bought the land together, subdivided it, and setup an agreement which worked great for years until on friend died and the surviving spouse went mental and the other couple went mental as well. Literally, one of them has been sent to a mental institution and a couple more should be committed. Easements are just bad news. Having said that, you just might have to have an easement as the least bad option.

Later,
Dan

Claire Knowles · May 31, 2014

Hi--The land I don't own is 100 square feet....and as far as being landlocked, the front of my property faces a paved road, though it's down a 45 degree angle and about 125 feet long. Engineers have been here and all agreed that the land is virtually impossible to put a driveway there, despite what the Title Company says. As far as claiming a prescriptive easement or color of title to the bottom of the driveway, I can't do it because it is technically government land....all owned by taxpayers of course, of which I have been all my life. The lay of the land is such that putting in a separate driveway at the end of my property line would almost be the same as building an "ON" ramp to meet another road...more $$ than I have to spend at this point. It's already cost $26,000 for an underground retaining wall to keep the house from sliding down the mountain due to years of logging trucks, heavy equipment, and loaded truck vibration that weakened my foundation. My only other thought has been to block off my dirt road, therefore denying them access, and forcing their hand on buying my house and land. My dirt road is the only access they have to that acreage behind me.

lilranch2001 · May 31, 2014

I do not see any mention of liability.....
I would not want a new development using my property as access due to simple liability reasons!

Claire Knowles · May 31, 2014

This story just keeps getting weirder and scarier....I went to town today and the front page of the weekly newspaper has a nice big article about NC Resource and BS Department meeting in July with the Cherokee Indians to determine whether they would open up their land for FRACKING.....I venture to guess it's the 3500 acres behind me they're talking about, though I hope with all my heart I'm wrong. Since I own the only real access to their land, I guess my next fight will be with the real government. This whole thing is crazy.....I can't thank you all enough for taking the time out of your day to help me deal with all this bull and giving me all of your collective thoughts. It's helped me SO much to know I'm not alone in the nasty neighbor neighborhood.