Building road across my right of way

[Murrini]

What is the name of your state (only U.S. law)? California

I bought a piece of property last year that has a appurtenant right of way through a neighbor's property to the county road. The road described in the right-of-way has never been built and we are ready to build it for access to our property. I know the neighboring property owners are going to attempt to fight the road so I have a few questions before we proceed to make sure we are legally clear.

The deed for the right of way is in a separate document than the title/deed for the property (This parcel was separated off the neighbor's parcel many many years ago and kept in the family at the time, the right of way was written later when one of the parcels was sold out of the family I believe.), but is legally recorded in the county books and is clearly linked to my property. The title company was not concerned about any legality issues with the right of way deed when I bought the property and I spoke with the county recorder who said it was legitimate.

The language of the right of way is very clear in stating that it is to run from the county road (which runs through the neighbors property) to my property in a Generally Easterly Direction and that once established it may not be changed, and in the event the road is not 50' wide my easement shall run 25' in each direction from the center of the road (not verbatim as I don't have the deed right here).

Now the questions: The owners of the property have gotten the old county road abandoned where it runs through their property and there is a gate before where we need to build the road. We are concerned they are going to lock this gate against us. The county recorder said as the old county road is the access to my right of way that I have the right to access the county road even though it was abandoned (though I'm not sure the abandonment by the county was formal, they may have just put up a gate without the county knowing anything about it, very common out here). Do they have any right to lock the gate against us?

Do they have any way of stopping us from building our road without a stop order from the courts? Since I have a copy of the right of way if they attempt to lock us out can/ will the Sheriff's department likely side with them or us on access until they could take it to court?

Do I have to provide them with any pre-notice of building the road (I previously notified them of our intent but did not give them a time-line)? Where it will cross their land they do not use at all so we are not impeding them at all. There is really only 1 location that makes sense to put the road as it starts going up a pretty steep hill and we are putting it in the location with the least grade in order to use as few switchbacks as possible, do they have say in where we can put it if the entire mutual property line is unused by them?

I really don't see that they have any recourse against our right of way, it is very clearly written and detailed except the exact location of where it goes which I interpret is up to us to pick (there was a clause that it had to be South of a certain point as recorded in some survey that no one can locate - the reference of books to where it should be does not exist and despite an extensive search no such survey seems to be on record so they said there, I'm just concerned that they are going to drag us into court to try and fight it. We already offered to plow the road all the way to their house and maintain the road and work a trade with them before we were aware of the right of way when we were investigating the possibilities of purchasing the property but they had no interest in working a trade and she was quite hostile and threatened lawyers when I informed her we found out we had a legal right of way and would be needing to build a road to our property. We would love to work with them but...

Once the road is built, since they initiated the abandonment of the county road - do they have the responsibility to keep that section of road maintained since the county is no longer doing it by their request or does some of that burden then fall on us? And they rarely leave their house during snow storms but we have to keep the roads clear as we are both emergency responders - do they share the burden of snow removal on the mutual road or is it up to us to keep it clear since we need it and they just benefit from it?

Thank you!!

 

[justalayman]

If your easement is specific that it was to connect to a road that no longer exists, you have a problem. Before getting to worked up about it, find out if the road was actually abandoned or not. If it was, you might have to sue for an easement to replace that section of the road needed to take you to a public roadway. If it was in use, it would be a different story but since it has never been used, it can present a problem. If nothing else, if they want to cause you grief, they can with this. The question I have though is you referred to the width of the road and your easement like your easement overlaps the road. Explain.

and in the event the road is not 50' wide my easement shall run 25' in each direction from the center of the road

police do not like to get involved with disputes such as this. They often stop any violence occurring and tell the parties to address the issue in civil court.

If there is not clear cut placement of the easement, they surely could tie it up in court arguing that wherever you are putting it is not allowed per the easement document. While they will eventually be forced to allow the easement be improved, they can tie it up and cost you money. How long usually depends on how much money they wish to spend.

Once the road is built, since they initiated the abandonment of the county road - do they have the responsibility to keep that section of road maintained since the county is no longer doing it by their request or does some of that burden then fall on us?

it isn't their easement or road. Unless they are using it, there is generally no requirement they assist in the maintenance.

do they share the burden of snow removal on the mutual road or is it up to us to keep it clear since we need it and they just benefit from it?

where is there a mutual road? I though you had an undeveloped easement that lead to a road that is now abandoned (maybe) by the county. Are they using the road for access to their home? another statement suggested it was not such:

The language of the right of way is very clear in stating that it is to run from the county road (which runs through the neighbors property) to my property

 

[Murrini]

If your easement is specific that it was to connect to a road that no longer exists, you have a problem. Before getting to worked up about it, find out if the road was actually abandoned or not. If it was, you might have to sue for an easement to replace that section of the road needed to take you to a public roadway. If it was in use, it would be a different story but since it has never been used, it can present a problem

Sorry for the confusion, the old county road is the main road they use to access their property. The abandonment is on the part of the county, not them, the old county road is in good shape and is used. We need to build our road from the old county road (now their driveway) after it goes through their gate. The only part that has never been used is our deeded right of way.

The question I have though is you referred to the width of the road and your easement like your easement overlaps the road. Explain.

I'm not sure, it seems to be written that once the road is established that we have an easement that runs 25' from the center line of the road. I'm not sure of why we would need an easement that wide, esp as it states we cannot change the road in any way once it is put in so we could never widen the road. Here is the exact wording: "An easement for ingress and egress to 15.1 acres of real property located in .... Which easement shall be appurtenant to said land and shall be 50 feet wide running in a generally easterly direction. (location descriptions and redacted mention of the point which road was supposed to be south of here that no one can find)) Once said route is established it may not be changed in any manner. In the event that the road is less than 50 feet wide the easement shall run 25 feet to each side of the center line of said route when it is established. "

As far as the sharing of maintenance I'm talking about the shared portion of the road (again my fault on explaining the situation badly), not after our easement takes off, I'm aware that is all on us.

Thanks! and sorry again for the bad explaining...

Edit: Oh, and most importantly - can I get an opinion on do I need their permission to start building or can we just start building it since I have the legal document in my hand that says I can and they don't have an order from the court to stop me? I've tried appeasing them with no luck and have a short opportunity of equipment free to punch the road now and would like to get it done. I've already told them the road was going in (told them a few months ago it was happening in the next 2 weeks from then, but weather hit and I couldn't do it then) and they have not presented me with anything to stop it.

Thanks!!

 

[Ozark_Sophist]

Are you planning a straight shot across their property?

 

[FarmerJ]

When any road it vacated there is public record of it , no matter if its a county road or alley. Your local government has to have records of this. Inc meeting minutes and records of how affected properties were notified of a pending change in the roads status.

 

[justalayman]

wow, so many issues.


ok, can you start building?

sure BUT if they want to actually cause problems, they could go to court and get an injunction to halt the action until a court hearing to present their argument as to why you can't do what you are. Obviously at some point they will lose as you do have a right to build a drive but the description is ambiguous enough to allow for them to make an argument to whatever you do.

It would be best to attempt to agree to the location of the easement, if possible. Obviously that may not be possible so you may have to just start building and hope for the best.

as to the maintenance issue of any shared portion:

Cal. civil code 845

(a) The owner of any easement in the nature of a private
right-of-way, or of any land to which any such easement is attached,
shall maintain it in repair.
(b) If the easement is owned by more than one person, or is
attached to parcels of land under different ownership, the cost of
maintaining it in repair shall be shared by each owner of the
easement or the owners of the parcels of land, as the case may be,
pursuant to the terms of any agreement entered into by the parties
for that purpose. If any owner who is a party to the agreement
refuses to perform or fails after demand in writing to pay the owner'
s proportion of the cost, an action for specific performance or
contribution may be brought against that owner in a court of
competent jurisdiction by the other owners, either jointly or
severally.
(c) In the absence of an agreement, the cost shall be shared
proportionately to the use made of the easement by each owner.
Any owner of the easement, or any owner of land to which the
easement is attached, may apply to any court where the right-of-way
is located and that has jurisdiction over the amount in controversy
for the appointment of an impartial arbitrator to apportion the cost.
The application may be made before, during, or after performance of
the maintenance work. If the arbitration award is not accepted by all
of the owners, the court may enter a judgment determining the
proportionate liability of each owner. The judgment may be enforced
as a money judgment by any party against any other party to the
action.
(d) In the event that snow removal is not required under
subdivision (a) or under any independent contractual or statutory
duty, an agreement entered into pursuant to subdivision (b) to
maintain the easement in repair shall be construed to include snow
removal within the maintenance obligations of the agreement if all of
the following exist:
(1) Snow removal is not expressly precluded by the terms of the
agreement.
(2) Snow removal is necessary to provide access to the properties
served by the easement.
(3) Snow removal is approved in advance by the property owners or
their elected representatives in the same manner as provided by the
agreement for repairs to the easement.
(e) The provisions of this section do not apply to rights-of-way
held or used by railroad common carriers subject to the jurisdiction
of the Public Utilities Commission

.

I highlighted the section I did in reference to the fact they allow themselves to become snowbound in the winter. While you can generally use a 50/50 share of costs for maintenance when there are two parties or households served by an easement, I can see where they could make a reasonable argument that they have no need and do not use their drive during the winter months and as such, are not liable to share the snow removal costs. Personally, I would rule with them unless you can argue they do utilize the drive and it does benefit them. Their share of costs, of course, are only attributable to the shared portions of the drive. Anything that is for your exclusive benefit is all on you.

 

[Murrini]

Thank you for your help! I think we will go ahead with the road and let them get their injunction if they choose as they have proved they are not interested in working with us. The section of road is very short (and runs mostly straight though due to a steep grade may need a small switchback on the end just entering our property, however it will maintain the generally easterly direction) and can be built in a day so they won't be able to block it that quickly. They are very stingy with money so I'm hoping their lawyer tells them that we will eventually get our road by the sounds of it, that it will be fruitless in the long run to fight it. Should it go to court, where we have tried to communicate with them and they have not been receptive to working with us I will have to hope the court agrees that we took reasonable consideration on our location choice as to cause the least amount of disturbance to them and the most sensible place to put it with the terrain involved. I know it's a lot of hoping, but I have the equipment there and ready to go and it will cost us a fortune to not do it now. Luckily this is a very small county (# of people wise) and the 2 Judges are pretty sensible and come from rural and ranching backgrounds so I don't think they would have a ton of tolerance for a lot of posturing on their part.

As far as the maintenance and snow removal that makes sense. We will make sure to document and photograph if they do use the road and benefit after we remove snow as I believe they have previously chosen to remain snow bound because it is easier, I think if the road were open they would use it as they eventually use a tractor to open the road now if they need to get out. I just wanted to clarify that if they were benefiting from us putting money into a mutual use access that they are partially responsible for those costs.

 

[154NH773]

All good advice.

Your easement says that it goes through the neighbor's property to the county road. The fact that he had, or didn't have' the road abandoned is of little consequence as you can go through his property to where the county road was, or presently is.

The reason for the 25' from the centerline language is simply that a road may be built narrower than the 50' usually required, and the language gives you the right to a 50' right of way regardless of the actual width of the as-built road. That's a good thing.

I experienced a similiar situation. I built the road without any notification to the neighbor(s), and they were screaming at the excavator operator, but he just continued. I received a cease notice from their lawyer and ignored it, but they didn't go for an injunction. Now, all I can say is; you better be sure where the easement goes, as I was in court arguing over inches for several years, and had three separate surveys to prove one inch of gravel was removed from outside the easement. How much of a fight do you want to take on, and how willing is your neighbor to engage you?

My suggestion would be to discuss your plans one on one with him, but be ready to proceed quickly if he appears to be resistant. It's better to ask for forgivness than to plead for permission. Get a good survey and stake out the route according to the best interpretation of the easement description by a competent surveyor. Stay well within the easement, which shouldn't be hard with 50' to play with (I only had 20').

 

[154NH773]

By the way, it may be much easier to deal with them if they actually get a lawyer. My neighbors were adamant over their claims until they got a lawyer who immediately told them they were wrong and I was right.