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Easement: How Broad Can I Interpret the Word "Assigns"?

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davyjones

Junior Member
What is the name of your state (only U.S. law)? Wisconsin

I have an easement as follows:

"The Grantor, by this Deed, also grants and conveys an easement over the existing roads and trails across, through and surrounding the above described property, with said easement being granted to 'my name', his heirs, successors and assigns. Said easement shall run with the land and be binding upon the parties, their heirs, successors and assigns."

I have 40 acres that includes a ridge that separates fields north and south of this ridge, and this easement allows me access from the north side to the south side fields without having to traverse my very steep ridge and this is done by way of other owner's properties. Now, these properties were once owned by one owner (who gave me the above described easement) but have since been sold to three different owners. I am having difficulty with one of these new owners.

My questions is this... do I have the right to allow others to use my easement? For example; a friend who uses the easement to access my south acreage to cut firewood for me, a farmer who uses the easement to plant and harvest the south fields for me, a friend who hunts my land and also uses the easement to access the south side? Does the word "assigns" allow me to have others use my easement to access my south side property? Do I really have any restrictions as to whom I allow to access my property by way of this easement?
 


154NH773

Senior Member
do I have the right to allow others to use my easement?
Yes
Does the word "assigns" allow me to have others use my easement to access my south side property?
Not necessarily
Do I really have any restrictions as to whom I allow to access my property by way of this easement?
In general; No

It is not necessarily the word "assigns", which generally means someone you have granted title to by transferring your rights to them, but the reasonable use of an easement by people who are working for you and need access to your property that would control the situation you describe. If you were to allow an ATV club to use the trails, that might not be viewed as reasonable and would be an additional burden on the easement that a court probably would not allow. The hunter might be viewed as not allowed, (only a court can interpret that) as he could access the back property without crossing the servient property.

If you were to sell off a section of property that needed access via the easement, you could include/"assign" , that easement along with the deed to the section being sold
 
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tranquility

Senior Member
Do I really have any restrictions as to whom I allow to access my property by way of this easement?
It would depend on the facts. You can overburden an easement by assigning rights not really contemplated. For an obvious one, say you wanted to hold the next Woodstock on your back 40 and had all the attendees use the easement to get there. That would (Again, depending on the facts.), overburden the easement and you might be subject to damages or injunction. How much less the intrusion would need to be and still be a violation, is impossible to tell in the abstract.
 

davyjones

Junior Member
What is the nature of your "difficulties" with the new neighbor?
First of all, my neighbor doesn't think that an easement exists. This problem is easily addressed as there is a record of the filing associated with the tax parcel number that he owns. Never-the-less, I received a letter from his attorney stating the following:

"As I understand it, my client has asked you why you believe you have the legal authority to give a second party the right to cross his lands. We've ordered a title search to see if there are any easements from my client or his predecessor giving you the right to cross his lands. We have found nothing. Presently it's the position of my client you do not have a legal right to cross his lands or give a second party the right to cross his lands."

Now, within five minutes at the county court house I found the properly filed easement that I referenced in my original post. This easement was given to me by a previous owner in 1996 who subsequently sold the property to someone who then re-sold three parcels to my three new neighbors - one of whom is the person giving me difficulty.

I was very certain that I had a legal right to cross his lands via the easement but my main concern was if I had the right to allow others access to my land via this easement. I have someone cutting firewood for me, and a farmer planting fields, a friend hunts my land so he drives his truck back to my property as there is no other access for a vehicle. My kids drive back there for target shooting, riding ATVs, etc. As an aside, this neighbor has repeatedly trespassed onto my lands for hunting purposes which I have repeatedly asked him not to do.
 

justalayman

Senior Member
"As I understand it, my client has asked you why you believe you have the legal authority to give a second party the right to cross his lands. We've ordered a title search to see if there are any easements from my client or his predecessor giving you the right to cross his lands. We have found nothing. Presently it's the position of my client you do not have a legal right to cross his lands or give a second party the right to cross his lands."
So, of course, you sent him a copy of the document that does provide you with the rights you claim, right?

and they responded with....?
 

davyjones

Junior Member
So, of course, you sent him a copy of the document that does provide you with the rights you claim, right?

and they responded with....?
Actually, I have NOT sent the document as yet. I am in the process of preparing my response to his atty. but wanted to first be certain that my easement included the right for me to allow others to have access as I have described. I just wanted to make sure I was on solid ground with regard to my allowing others to use the easement to do work for me.
 

tranquility

Senior Member
Actually, I have NOT sent the document as yet. I am in the process of preparing my response to his atty. but wanted to first be certain that my easement included the right for me to allow others to have access as I have described. I just wanted to make sure I was on solid ground with regard to my allowing others to use the easement to do work for me.
Why send the document? Just tell him you have an easement and he should review the title search ordered before any filings made against you or be at risk of malicious prosecution. Inform him that it is YOUR position the attorney's client should not be on your land for any reason and that any license he feels he has to do so is hereby revoked.

I wouldn't show all my cards up front. It's always nice to have an ace left to play.
 

justalayman

Senior Member
Not sure if having a document that is in a public record is an ace. I suspect the lawyer is playing chicken and is waiting to see if the op actually does anything. Providing the document may be the only necessary blow since, if the guy missed it it will provide proof of actual notice and knowledge of its existence which establishes a time after which any act to exclude op and assigns from the easement is intentionally disregarding document and it also lets the lawyer know op isn't just making claims based on presumptions and is aware of the proof of his claim
 

tranquility

Senior Member
Not sure if having a document that is in a public record is an ace. I suspect the lawyer is playing chicken and is waiting to see if the op actually does anything. Providing the document may be the only necessary blow since, if the guy missed it it will provide proof of actual notice and knowledge of its existence which establishes a time after which any act to exclude op and assigns from the easement is intentionally disregarding document and it also lets the lawyer know op isn't just making claims based on presumptions and is aware of the proof of his claim
I agree, which is why I'd call his bluff. If the PITA neighbor wants to bring in the attorney to make invalid threats, he should be made to pay for it. Do you think the neighbor is going to give up his quest just because he loses? The letter I described will cost neighbor some money to have his attorney read and inform the neighbor about. It also will give the neighbor a legal warning that if he pushes things he may lose and not just not win. (As a trespassing suit could be had against him in theory.) Let the other attorney think what he wants. If the OP has a valid easement that is recorded properly, if the other attorney is wrong it is only going to cost the nasty neighbor more in the end.

Of course, all this is predicated on the OP having a properly recorded easement. (In that it was recorded and not just dated before any sale so there is no bona fide purchaser problems.)
 

davyjones

Junior Member
I agree, which is why I'd call his bluff. If the PITA neighbor wants to bring in the attorney to make invalid threats, he should be made to pay for it. Do you think the neighbor is going to give up his quest just because he loses? The letter I described will cost neighbor some money to have his attorney read and inform the neighbor about. It also will give the neighbor a legal warning that if he pushes things he may lose and not just not win. (As a trespassing suit could be had against him in theory.) Let the other attorney think what he wants. If the OP has a valid easement that is recorded properly, if the other attorney is wrong it is only going to cost the nasty neighbor more in the end.

Of course, all this is predicated on the OP having a properly recorded easement. (In that it was recorded and not just dated before any sale so there is no bona fide purchaser problems.)

The easement was properly recorded 10 days after it was created in 1996. Oddly enough, the document was drafted, signed, and filed by another named partner at the same firm - which, of course, is a fact that my neighbor's atty. is unaware since he supposedly doesn't know that the easement exists. Do you think in my response to his atty. that I should mention possible action against the neighbor if the trespassing continues, or should I just mention that I would report any trespass to the authority?
 

justalayman

Senior Member
revoking any license (permission) to enter your property has an implied threat of reporting a violation as a trespass. No need to hold the lawyers hand along with wiping his nose. He's a big boy and they take classes: reading between the lines 101,102, and 103 :D
 

davyjones

Junior Member
revoking any license (permission) to enter your property has an implied threat of reporting a violation as a trespass. No need to hold the lawyers hand along with wiping his nose. He's a big boy and they take classes: reading between the lines 101,102, and 103 :D
Oh, there is one other issue that I forgot to mention. My troublesome neighbor has also placed two locked gates, one at each end of his property blocking access to my land via the road for which I have an easement.
 

tranquility

Senior Member
Oh, there is one other issue that I forgot to mention. My troublesome neighbor has also placed two locked gates, one at each end of his property blocking access to my land via the road for which I have an easement.
To start, justalayman got the reasoning right. Smart people don't like threats, but accept the reality of the situation.

But, this little thing you forgot to mention is a big old darn deal. While you could probably enforce your easement by self-help, such things tend to inflame the situation and don't really make things better. And, since you don't really want to go to court to enforce your easement, I retract my previous advice. I think justalayman was correct. It is better to just turn over the easement up front and inform the attorney his client should remove the locked gates or provide you with access (perhaps by giving you a key you can copy) within 10 days or "you will explore your legal remedies".
 

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