Neighbor has elected to damage over 20 trees

[cqaigy2]

I still contend that the road just needs to be in the easement, not centered on it. I'd have to read the deed and the covenants to be sure. How close would it have to be? If its one inch off? Two inches off? 5' off? Courts have shown in past rulings they are not concerned with trivial differences in distances. Of course the question is what is a trivial difference.

Most of the subdivisions i've seen, have the property lines "centered" down the road. I wonder who would be granted the easement or quitclaim for the property?

 

[plowhog]

" I cant imagine a judge granting a prescriptive easement for a recreational horse trail. "

A prescriptive easement is not something that is granted by a judge. My example of a recreational horse trail across someone's property came from an actual case. There are other similar cases, like people cutting through property for ocean beach access. Very, very wealthy property owners have litigated to stop people crossing their property, but lost in court due to the existence of a prescriptive easement.

 

[wagne223]

A prescriptive easement is not something that is granted by a judge. My example of a recreational horse trail across someone's property came from an actual case. There are other similar cases, like people cutting through property for ocean beach access. Very, very wealthy property owners have litigated to stop people crossing their property, but lost in court due to the existence of a prescriptive easement.

If not a judge, then who has the authority to grant an easement restricting use of your own property?

 

[wagne223]

A prescriptive easement is not something that is granted by a judge. My example of a recreational horse trail across someone's property came from an actual case. There are other similar cases, like people cutting through property for ocean beach access. Very, very wealthy property owners have litigated to stop people crossing their property, but lost in court due to the existence of a prescriptive easement.

I just did a search, could not find the horse trail case, but did find several other cases.
All had a court title and docket number.
Hence a judge had to make a ruling.

From what I read, a specific person or group has to file a claim in court, and meet the criteria (5 years use, no permission, in plain view, ect) and the court then decides on the easement.

 

[wagne223]

" I cant imagine a judge granting a prescriptive easement for a recreational horse trail. " There are instances here where long time canoe portages are deemed public highways under the definition of Public Highways Act.
Al

Very interesting......

Although, if deemed a public highway, then the municipality had to acquire the land through negotiations or imminent domain and Pay the landowner.

The landowner no longer has rights or responsibilities to that land.

An easement on the other hand, means the landowner receives nothing, or very little and still has a responsibility for the land.

 

[dodge man]

Why would there be any quit claim deeds, new easements etc be required just because the road isn't centered in the easement? As a land surveyor, I see it all the time where a road isn't centered in the ROW, although in most cases it is at least close to it, but not always.

Not really an issue to the OP's problem, but a prescriptive easement would in most cases be one where there is no written record, hence a judge or court would normally have to make a ruling, then there would be a recording of that case in land records. Its a similar thing, how often would someone have to walk, drive across someone property for an easement to occur? Usually the legal requirement is "long standing use". Almost all the township roads in Illinois have no written record. That doesn't mean I can go out and block off the roadway in front of my house. It also doesn't mean the township had to get a judge to rule that all the roads are in fact public rights of way. These roads have been in place for over a hundred years in most cases.

 

[plowhog]

From what I read, a specific person or group has to file a claim in court, and meet the criteria (5 years use, no permission, in plain view, ect) and the court then decides on the easement.

Not really, only if it is contested. And often it is the landowner who files in court, if anything is filed at all. Usually the landowner is the "aggrieved" party who wants the other party to stop doing something. But no action is needed at all.

My property in California has a dirt road through it. Vehicles pass along this every day and the County has a prescriptive easement for that road. It's my land, but the vehicles have the right of passage because the County has a prescriptive easement. The County maintains it.

 

[LD1]

The problem as I understan it....the deeds that keep claiming reference to center of road.....were spelled out BEFORE there was even a road.

So operating within 25' of where the road was "supposed to be" a dozer operator made a road. So what....the center may have wandered due to unforseen circumstances. Drawing something out on paper......and physically doing it are two different things.

So now just what does center of road mean???? Is it the center of the road as it was established way back when? Or is it center of where the road was "supposed" to be.

And some of you on here bickering about what the deed says.....none of us but the OP have actually seen the deed. Does the deed ACTUALLY say ROW is 25' from center of road? Of does it just say 50' ROW with no reference to the road?

And the guy doing the digging....even with road not being center....is he or is he not withing the ROW?

And regarding the claims about ROW only to be for access....and claiming he is stealing material for use on his property....still a tough sell to any judge or jury. Because this neighbor could probably just as easily make a claim that he DOES need a wider road. And rather than stealing anything....he is just saving others the hassle of disposing of spoils from doing the work.

I mean.....do you even know the neighbors intent? Sure....he could just be a bad apple and doing all this for bad intentions. Or maybe he is buying a huge RV or something and has a legitimate reason?

Still don't know the whole story....their is always another side to tell

 

[two_bit_score]

I still contend that the road just needs to be in the easement, not centered on it. I'd have to read the deed and the covenants to be sure. How close would it have to be? If its one inch off? Two inches off? 5' off? Courts have shown in past rulings they are not concerned with trivial differences in distances. Of course the question is what is a trivial difference.

Most of the subdivisions i've seen, have the property lines "centered" down the road. I wonder who would be granted the easement or quitclaim for the property?

Don't most rural roads tend to meander a bit over time anyway?



.

 

[hawkeye08]

Most of the subdivisions i've seen, have the property lines "centered" down the road. I wonder who would be granted the easement or quitclaim for the property?

Many folks think this and it is likely often true, but in our case, it is not. NONE of the easement or ROW is on our property, it is all on the neighbors property. We have about 1400 feet of frontage, but the power lines and road on not on our property.