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Easement problem

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tonkamankd

Junior Member
What is the name of your state (only U.S. law)? OREGON, The home that I purchased has a flag lot behind it. The person that I bought from built on the flag lot. The road to his flag lot goes in front of my house and shop and he retained ownership of the road. I have an easement recorded right on the deed of the house that says I have the right to Ingress and egress to the rear of my parcel. We also have a maint. agreement for the road. The easement clearly states that it is for the entire 25 foot wide, 250 foot length of my property and it goes from my southern property line to the adjoining neighbors property line. I have used the road to access my shop and I have permssion to use the adjoining land that runs along side the existng road. I do on occasion turn left onto this other property at the end of the road. The man that I bought from is upset that I use this other property and he installed a number (20 or so) metal fence posts along the property line that he shares with the other landowner to keep me out of the (field). The field owner does not want a fence and I have a letter so stating, but he is 85 years old and is trying to stay out of this mess. I pulled the fence posts because I couldnt turn around in front of my shop with them there and also to continue to access the field. My arguement is that the posts impede my use of the easement, we go to small claims court next week. My question is ..... does the flag lot owner have the right to fence the side of the road? He has stated that he will fence both sides and I will have to find new access to my home and shop (which cannot really be done). I run a trucking business out of the shop and a fence on the side of the road makes it very difficult to come and go with trucks and trailers. The fence also serves no purpose other than to stop me from access to the field and making it hard to turn around. Help me.What is the name of your state (only U.S. law)?
 


154NH773

Senior Member
The easement clearly states that it is for the entire 25 foot wide, 250 foot length of my property
If I have read correctly, the servient tennant (your neighbor-the owner of the easement property) may not block you from using the entire length and width of the easement. He can place a fence anywhere off the easement on his property.

The use of the third party's property has nothing to do with the easement, and if you use the easement to access the third party's property that may create an additional burden on the easement that will not be allowed by the court.

Without looking at Oregon law, the Small Claims court may not have jurisdiction over an easement dispute if it requires interpreting or reforming the easement. If the easement is unambigious, then they may be able to decide the issue.

Who initiated the Small Claims action? Have you talked to a lawyer? Be sure you bring all documentation of the easement, your prior use and continuing use, and any other information. Make sure you document the need to use the entire easement. Courts can suprise you with their decisions, be prepared, and look into appeal processes.
 
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tonkamankd

Junior Member
Thanks for the reply.

I left some things out I guess, here we go. When he put up the fence posts I could no longer pull up and then back in to my shop, nor could I turn around in front of the shop without fear of hitting a post.... so I took them out and piled them up on his property. He did retain an attny and I did likewise. His attny sent me 4 letters stating that I had to replace the fence or I would be sued for trespass and conversion. My attny sent back a few letters stating that he was blocking my easement with the posts and that I would not replace the fence. I spent about $800.00 with my lawyer and then told him to ignore any other letters from the other attny unless it was a summons for court. That is when my neighbor took me to small claims court for $1300.00. Not sure where he came up with that amount, all the posts are right there and not damaged. And yes I understand that the adjoining neighbors property has no right to the easement. I still believe that my argument about the posts (either on the line or on the easement blocks my comings and goings) is valid...and since the neighbor doesnt own the adjoining property then anywhere he puts a post is on the easement dont you agree? As a side note the easement owner now has his vehicle parked in front of my house in the road (for sale). It is right where my wife backs out of the garage and is blocking half of the road.... can I have it towed and send him the bill? Thanks for all your help. NEIGHBORS FUEDS SUCK
 

FarmerJ

Senior Member
Make sure you get pics of the blocking vehicle and its plate number and make sure to show it from several angles so the pics show it to be blocking your use of the easement and take them often and have them dated.
 

154NH773

Senior Member
since the neighbor doesnt own the adjoining property then anywhere he puts a post is on the easement dont you agree?
Yes, it would seem so, unless he placed them on a third party's property, which if he didn't have their permission, then he may have no standing to sue you for their removal..

I'll defer to someone with more accurate legal knowledge, but perhaps you should counter sue in Small Claims court. There must be some claim you could make for damages from his blocking of the easement (quiet enjoyment of your property?). Even if your claim doesn't have much merit, at least you would put the court in a position to evaluate the claims in relation to each other. In other words, the court would have to examine the reason why his placement of the post may have damaged you. It might bring some focus on him, where the focus now is on you.

can I have it towed and send him the bill?
I wouldn't have the car towed unless it is completely blocking you. Document it and complain in court that he is now harassing you with the parked car.
 
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tonkamankd

Junior Member
Again, THANK YOU SO MUCH FOR THE INFO
I did not counter sue him as of yet, my game plan is to win (hopefully) in small claims, then take him back to small claims for my attny fees and damages. At some point I will have to take him to a civil court and sue him for breach of contract I think. I was kinda waiting for him to put the fence up on both sides of the road before the final step.
Just a little more background on the man I am having problems with, he is a heavy drinker and seems to have a problem handling himself when intoxicated. He was cited and found guilty of reckless driving for attempting to run my wife and her friend over with his pickup right in the road in front of the house. He has a reputation for fighting with all the neighbors for the last 15 or so years but I just bought his place two years ago. His general approach is to do what he pleases and then threaten to call an attorney, which is exactly what happened with me.... I think I called his bluff and he just doesnt know how to get out of this and save face. Anyway, we go to small claims on the 11th of March and I will post and update you as to what happened. TONKA
 

justalayman

Senior Member
the bad part is:

the guy can fence his lot as long as he does not prevent you from using the easement as described within the deed.

that means he can fence the opposite side of the easement where it adjoins the neighbors property and there isn't a thing you can do about it. The easement is for you to gain access to your property, not your neighbors.

So, you are liable for the damages to the fence (at least labor to re-install) and have no claim to demanding the fence be removed.

If you cannot turn around on the easement, it is not his problem either. Again, he does have a right to fence his property.
 

tonkamankd

Junior Member
I do understand that the easement has no right to the neighbors adjoining property, but the neighbor will not give him permission to put the fence on his property and that puts the fence posts in the easement.I need the entire 25 foot width that the deed states. The stated 25 foot wide easement goes from property line to property line and with posts in it, it reduces my width by a few inches. My take on it is 25 feet means 25 feet, not 24 feet 10 inches. If it is ok for him to put a fence on that side, then what is to stop him from putting one on the other side of the easement and just making it 24 feet 5 inces wide? I am not arguing with you, I appreciate the help and am asking if I dont have a valid legal point? Thanks.
 

drewguy

Member
My take on it is 25 feet means 25 feet, not 24 feet 10 inches. If it is ok for him to put a fence on that side, then what is to stop him from putting one on the other side of the easement and just making it 24 feet 5 inces wide? I am not arguing with you, I appreciate the help and am asking if I dont have a valid legal point? Thanks.
You are correct about that--he can't place them in the easement.

If I understand correctly the 25' strip runs along the third-neighbor's property line. Since your neighbor can't place the fence posts on his property he's placed them in the easement by a couple of inches. This he cannot do.

That said, it sounds like for you to use the easement you actually need to be able to go into the third-neighbor's property a bit. Perhaps you have permission for this? I would ask him and maybe get it in writing that he has no quarrel with your trucks occasionally passing over his land in the process of turning around. That would allow you to show the court that the two inches matters more than just the two inches.
 

justalayman

Senior Member
a couple inches that it takes to install the fence is not going to be a problem for him if this ever gets to court.

while you and drew want to argue the guy cannot put a fence on the easement, I believe you will discover you are both wrong. A court is not going to allow the petty argument about 2 inches be an issue. If you cannot do something in 24' 10", that 2" is not going to make any difference to you.

the guy is going to be allowed to place a fence there. This is one I would be willing to put money on.


I run a trucking business out of the shop and a fence on the side of the road makes it very difficult to come and go with trucks and trailers.
depending on the area and exactly how the easement is written and how the grantor (that is very likely the guy that owns the land the easement crosses) you may find yourself not being able to drive a truck on the easement at all.

If a commercial use was not the intent of the original grant of easement, you would be over burdening the easement and he can seek an injunction to prevent you from driving trucks on the easement at all.

you might want to tread carefully here. You might discover you have a lot fewer rights than you think you do. If the neighbor realizes he may be able to make the overburdening argument, you may lose a lot more than those 2".
 

tonkamankd

Junior Member
JUSTALAYMAN**************... your killin me!!

Actually I have permission from the city to run my trucks here... the shop and easement was originally a logging shop so they are fine with me and the trucks. The only person that ever has complained about my trucks is the man I bought the property from and he is the one that used it for logging equipment!
The 2 inches or so that the posts take up (and the 4 or 5 inches the railroad ties he put in every 50 feet**************.....where does it stop? If he can take a few inches here and there I wont have any easement.
I of course dont want to go to court and get my butt handed to me, I am just hoping for the judge to have some common sense and rule in my favor!
THANKS FOR THE FEEDBACK, THIS IS REALLY HELPING!
 

154NH773

Senior Member
I am just hoping for the judge to have some common sense and rule in my favor
The first thing you should get out of your mind is the notion that the courts will always have "common sense and rule in your favor." Step back and look at it from the other perspective.
Justalayman is correct in warning you that a small encroachment of the fence posts may be allowed by the court, especially if he can claim that you have no right to travel from the easement onto the third party's property, and are increasing the burden on the easement by doing so.
Even if the third party allowed you access to his property, the easement grant may not allow such access.
 

justalayman

Senior Member
tonkamankd;2499119]JUSTALAYMAN**************... your killin me!!
Not trying to actually take any sides here but trying to be very realistic as to the situation.



Actually I have permission from the city to run my trucks here... the shop and easement was originally a logging shop so they are fine with me and the trucks.
it is not the city that has any control of what we are talking about. If the grantor of the easement (I presume the current owner of the flag lot) did not intend the easement to be used for commercial use, he can argue and quite possibly win that the use you are now using the easement for was not the intention of the easement. With that, you would be overburdening the easement. If he wins that argument, he could successfully prevent you from using the easement for any commercial traffic.



The 2 inches or so that the posts take up (and the 4 or 5 inches the railroad ties he put in every 50 feet**************.....where does it stop? If he can take a few inches here and there I wont have any easement.
I of course dont want to go to court and get my butt handed to me, I am just hoping for the judge to have some common sense and rule in my favor!
THANKS FOR THE FEEDBACK, THIS IS REALLY HELPING!
realistically, that is something the courts ultimately would answer. Until you get to that point, all you really have is maybe, possibly, might, and a million other defining terms.

I would suggest a couple inches would not be seen as a problem. There is no solid rule as to how much he could encroach within the easement before a judge says "whoa, too much". A lot will be based on all the other info such as; did the guy intend the easement for truck use. If not, I would imagine unless the guy actually blocks the easement totally, it might be allowed.

I would suggest that ultimately, he would most likely be allowed to place a fence at the edge of his property regardless what the neighbor will allow. The neighbor has no dog in this fight and as such, his input is irrelevant. The easement is to allow you access to your property and as long as the guy does not prevent your access to your property, the easement is not being restricted and as such, you have no real argument. He does not have to allow you access to the neighbors property.
 

tonkamankd

Junior Member
Update on easement issue

Wow I am living next to a crazy man! We are now in moving towards court. My neighbor has attempted to drive over my wife in the road with his pickup (he pled guilty to reckless driving) he has also put up a fence on both sides of the road (fencing me out of my garage) He also has called the city to complain about my trucks (I now have a grandfather permit of non compliance for my shop) He called the deq (they sent me a letter that said I had no violations) and he called the county to make sure I pay my taxes on my equipment (I do). He was also arrested for 2nd degree criminal trespass for refusing to leave my property (I have a great video of it) he pled guilty and is awaiting formal sentencing. I am now sueing him for harrassment and nuisance along with blocking me out of my property and loss of enjoyment and loss of value of my home. The latest issue is that he is trying to sue me in small claims court for taking a wire down off of his fence, which I didnt do. I had that case moved to circut court along with my case.....

any thoughts ???

My attny fees are over 6 thousand dollars so far and climbing but I have no choice but to fight. He spent most of the summer sliding around the corner and doing burnouts in the gravel in front of my house, he spent a week or so beeping his horn every time he drove by (I closed the blinds and he gave that up) Now that he has been served papers I seem to have his attention.

I am surprised how slow the court system works but I am being very patient.
 

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