driveway easement and fence

[howehome]

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

We purchased our home just short of a year ago that had an easement recorded in 1999 for a land partition and access to the back parcel. The easement calls for a 30 foot strip of land. The lot is currently empty but the owner stops by periodically to pick up a trailer or drop off debris. He came by yesterday asking what we were going to do to get him his 30 foot and demanded that he have 30 foot or he's getting a lawyer so we started measuring and the existing well house and house well fall at 27' in this easement. According to the county surveyor it was on their plat as the well was 50' from the boundary or they never would have issued the easement that way. Funny thing is that the owner of this parcel is the one that created the easement and partition back in 1999 and everything is exactly the same as when he signed it back then except we put up some retainer bricks to hold off erosion on the drive which actually widened the drive by about 1'. Also in measuring we found that his fence sits about 8' over our property line?What is the name of your state (only U.S. law)?

[drewguy]

You need to start by informing your neighbor that an easement does not mean outright ownership. You may use that land as it is yours. The only thing you cannot do is use it in a way that is inconsistent with his use of the easement for its stated purpose--e.g., access to the back lot. 30 feet wide is more than enough for access. Is the well going to block access?

Absent something express in the easement, you don't have an obligation to pave it for him. He probably has a right to pave it if it's for a road/driveway (unless easement says no), but that paving has to be reasonable as well. (So not sure he could construct a 30' highway through your yard.)

Finally, if he is the one who sold you the property subject to the easement, then he may be estopped from requiring removal of your well. Depends on circumstances, but if the well was existing when he retained easement, you may have argument he can't force you to move/remove it.

[howehome]

we put up a retainer wall to stop erosion, can he come tear that out if he wants?

[154NH773]

According to the county surveyor it was on their plat as the well was 50' from the boundary or they never would have issued the easement that way

It is unclear what this reference is meant to imply. The County would have nothing to do with "issuing an easement". They may have approved the subdivision which depicted the easement, and may have withheld approval if they had known about the encroachment, but it is probably too late to do anything about that.

An easement is a right to use a piece of someone else's property as if it was your own. Only the owner of a property can create or grant an easement on that property. A former owner of your property granted the easement, and you purchased the property subject to the burden of that easement. The use is either restricted by the easement language, or is reasonable in light of the rights of both parties.

You don't state the exact language, so we are somewhat in the dark as to what you and the dominent tenant (your neighbor) are allowed or obligated to do.

I agree with drew, but also caution that only a court can decide what the ultimate rights of the parties to an easement are. If your well or retaining wall restrict the reasonable use of the easement, you may have a problem.

As drew said, if it was your neighbor that granted the easement, and he was aware of the well at the time, then you might have a case to retain the well where it is. Again, if the easement is ambigious or doesn't state the conditions, only a court can ultimately decide.

I would try and settle this agreeably outside court, as court can be an expensive and not always satisfactory process.

[howehome]

exact verbage of the declaration is as follows:

we as tenants by the entirety, being duly sworn, depose and say that we are the owneres on "Land Partition 21-98" more particularly described in the annexed surveyor's certificate and that we did cause the same to be partitioned and platted as shown on the annexed map, and that we do for ourselves, our heirs and assins, herby create the 30 foot access easement as shown on the annexed map, said easement to provide access to parcels 1, 2 and 3 as shown on the annexed map. These lands are within the KBI district and the enterprise district, no other water rights are appurtenant to this plat."

He wants us to build him a 30' road for access. From what I understand it is our obligation to allow access but not our financial responsiblity to build it.

And again the issue of the well and pump house lying in this easement space which means he sold this house to the previous owners without a viable well???

[FarmerJ]

HH your city/county govt center might have a record of when the well was put in. Try the permit desk, if that well was put in at a time when permits were required then that would give you a idea of how long ago it was installed. Your city /county govt center can give you information as to zoning rules regarding driveway surfaces too.

[154NH773]

He wants us to build him a 30' road for access. From what I understand it is our obligation to allow access but not our financial responsiblity to build it.

You are correct!

The other issues still remain, i.e. the placement of the well and the retaining wall.

If he sold your house to a previous owner with the well in its current location, and created the easement with the well in that location, then you have a good case to keep it where it is. Once again, a court would be the ultimate decider of that issue.

[efflandt]

There is nothing that says that "you" have to improve his easement, only that you have to allow access. It sounds like 8 feet (more or less) of the easement may be on his side of the fence. Have you ever had any actual survey of your property?