Easements provide a right of way over someone else’s property. There are two general types: express and implied. Express easements are those found in a recorded instrument, such as a deed, right of way agreement, or other instrument. Implied easements are created by usage or other circumstances other than express grant.
Typical express easements include those granted to utility companies for construction and maintenance of power lines, to state agencies for expansion and maintenance of roads, to a group of individuals for community access to water privileged property or other community amenities, and to individuals for exclusive rights over another’s property, such as a driveway or access to a dock.
Implied easements most often arise through usage over an extended period of time. These are called easements by prescription, analogous (but not identical) to acquiring ownership by adverse possession. Other implied easements include easements by necessity and by estoppel.
Because easements give certain rights to a class of persons over the property of another, disputes often arise. These disputes include the types of usage of the easement, the persons who can use it, the size of the easement, whether one party is blocking the land, and the duty to maintain it. The more valuable the properties affected, the more contentious are the arguments surrounding the right of way.
The attorneys at Hartman have handled many such disputes. The following are just a few examples.
Vehicle or foot traffic?
One such case involved a set of easements established by deed during the 1800’s, when an historic property was subdivided. Each easement was created by a different deed. The language varied a bit from document to document. One of the rights of way specifically provided for vehicular traffic, presumably horses and buggies. Another deed, describing a different but connected right of way, did not mention vehicular traffic. Nearly 80 years later, that second right of way was physically cut off from vehicular traffic that had been using it over some indeterminate period of time prior thereto. That physical impediment existed for over 20 years.
A new resident wanted to use this easement to drive her car to the back of her house. The legal issues included whether the original deed intended for this easement to be accessible by vehicles, considering that there was no such specific language in the deed. It was argued that because the other easement, drafted at the same time, specifically granted vehicular access, it was intentional to omit such a reference from the deed establishing this one. Clearly, though, at some time after that, vehicles were permitted on this right of way; however, such permissive use would not establish a right of vehicular access.
On the other hand, the physical barriers to vehicular access have been in place for more than 20 years by the owners of the underlying fee simple land over which the easement ran. This can be considered a taking of the right of vehicular access over the easement by adverse possession, presuming there ever was such a right.
Ultimately, the parties reached an amicable compromise regarding the ability to use the easement, without having to go to trial; however, this only occurred after legal research, discovery, and being prepared for trial.
Express and implied over the same road.
One house is waterfront; the other is not. The non-waterfront owner does have an express written deed of easement, allowing access over a third person’s property to get to a small piece of waterfront property. Coincidentally, the waterfront house owners used that same easement to get to their pier, because the rest of their property was too steep to allow safe access to the water. The right of the non-waterfront is express, because it is found in a deed; the right of the other, if it exists, is implied, under a few theories, to be discussed.
After both parties used the right of way for more than twenty years, the holder of the express easement asserted that the waterfront owner had no right to use the right of way. Arguments were raised, including that the waterfront owners had obtained an easement by prescription, meaning that they had used it without permission for twenty years. Further, they argued that they had an implied easement by necessity, because it was the only way to safely get to their usable waterfront. Thirdly, they argued that they had an easement by estoppel, because the non-waterfront holders of the express easement stood by and watched them build a pier with water, electric, phone and cable TV, accessible only by the right of way; it would be inequitable to allow that to have occurred and fifteen years later prevent access to it.
Lastly, the implied easement holders pointed out that the express easement holders had no right to say whether an implied easement existed, because they did not own the underlying property. They only had standing to bring a claim if their express easement were somehow blocked or impeded, which it was not.
The parties reached an amicable resolution, after learning much more than they ever intended to know about easements.
Farm Road or Public Road?
Two adjoining farm owners argued over a right of way from the main road that went over Farm A to Farm B. Originally, this right of way was the only way to get to Farm B; however, more recently, Farm B acquired another larger access to that main road in anticipation of subdivision. Farmer A said that, therefore, there was no longer an easement by necessity, and that further, this used to be a public road that was officially abandoned by the County Roads Commission.
The matter went to jury trial in Caroline County, where the jury found for the owner of Farm B. Hundreds of years of old maps, aerial photos, and legal documents were reviewed, debated, and discussed. The jury found that the right of way was not a public road, that the State Roads Commission had no authority over private rights of way, that the right of way had been in continuous use for over one hundred years, and that Farmer A had no right to block it. The right of way was defined and identified in the court records, giving additional value to the subdivided farm, and establishing the value of private rights of way.
These are just a few of the easement and land related cases the attorneys at Hartman have handled over the years that we have been practicing real property law. Please let us know if we can be of assistance to you.