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Easement rights beyond those deeded.

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154NH773

Senior Member
New Hampshire
I have been involved with a right of way dispute for over seven years. While I am pretty sure of my position, the lawyer for the other party(s) made a statement I'm not sure that I agree with. I no longer have access to caselaw, so maybe someone can advise me on this specific issue. This is the issue;

Despite only having a covenant in their deeds stating, "Together with a right-of-way over [a 50' road] as same leads from [the highway] to the within described premises, said right-of-way to be used in common [with all others] having rights therein," their lawyer has said that because the private road providing their access was created as part of an approved sub-division, they have travel rights over the entire length within the subdivision. Thus, meaning they could travel on the road beyond their premises.

The subdivision creator held the ownership of the roadway property for over ten years, and finally gave it to a road association. There is no requirement for anyone using the road to belong to the association. The road also serves others outside and beyond the subdivision.

I questioned what authority provided additional access to parts of the road clearly not meeting the deed criteria of "from the highway to their premises" as spelled out in their deeds. He said it is a "common-law principle."

Can anyone cite such a principle, or an example from NH caselaw?
 


154NH773

Senior Member
At this point I would like even an opinion or WA-guess. I'm just trying to gather information that may be helpful in obtaining a more definate answer.

The question is:
There is a private road that is partially within a subdivision, and the section within the subdivision was laid out as part of the sub-division approval.
The landowners within the subdivision have covenants within their deeds giving them only ingress and egress rights on the right-of-way.
Does the fact that the road is depicted on the subdivision plat give the landowners within the subdivision rights to utilize all parts of the road within the subdivision, even though the only covenant providing rights to the road only specifies ingress and egress rights?
In other words; does a subdivision approval imply extra rights for the landowners other than what's stated in their deeds (which were granted by the creator of the subdivision)? It would seem to me that clear and unambigious deed language would trump any implied easement. But I've been known to be wrong...
 
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drewguy

Member
I'm not aware of such a common law principle. The use "in common" provision applies only to the portion that they have rights to use, as do others.

If you want a useless reference, I have an easement to get to my house. I'm 2d to last one on the easement and my rights go for the full length of the easement. People closer to the main road don't by their deeds have rights to come up to the end where I live. Of course, that's based on the wordsof the easement, not any common law principle.

I would put the lawyer to his claim. Tell him that the ordinary meaning of the words gives his client rights to go to his house and no further, and that he needs to provide you with some law that shows the words' meaning is modified by a common law principle.
 

154NH773

Senior Member
Thanks drew,
I found a new free source of caselaw (Google Scholar), and was able to determine where the opposing lawyer might have gotten his opinion. I believe he has misinterpreted the established law (as many lawyers do).

What he has said might apply if there were no explicit covenants in the deeds, but in my view that is not the case here.

Looking at two NH cases, Arnold v. Chandler, 121 NH 130; and Traficante v. Pope, 115 NH 356; it would appear that "An equitable servitude may arise when a 'general scheme of development (a subdivision) [is created to benefit a property]." However, the cases also state that "if restrictions appear on the face of the deed they may be enforced as covenants."

So, I believe that their lawyer is painting with too wide a brush, since the rights he is claiming are clearly contrary to the explicit wording in his client's deeds.

To paraphrase; it also says that the equitable rights he is claiming must be implied in order to benefit his clients property. There is no reason why his clients need any rights to travel beyond their own property, as there is no access to anything that benefits them there, such as a beach or recreation spot.

I should be meeting with their lawyer this week, and I'll do as you suggested and let him provide the citation or law that he's relying on.
 
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drewguy

Member
Isn't an equitable servitude more commonly used for restrictions on land use (like covenants) rather than to establish affirmative rights of use (such as an easement)?

So he might be wrong on two points, because if those cases discuss equitable servitudes they are more likely referring to restrictions such as to height, paint color, open space, agricultural uses, business uses, etc. as one might have in a particular subdivision.
 

Terminus

Member
Legal description wording

Does the legal description contain the words " right of way as shown on plat such and such recorded in"? The common doctrine is that the right of way is conveyed to all lots as shown on the plan and includes full use of all the right of ways as shown on said plat.

I was involved in a similar situation in that a lot had right of ways (different streets...same plan) in the front and back. The house was accessed from the front and the owners wanted to access an out building from the back....which of course the owners on the street in the back did not like. It was determined that the lot had access to either right of way because both were shown on the plan...conveying rights to all lots to all right of ways as shown on the plan.
 

154NH773

Senior Member
Does the legal description contain the words " right of way as shown on plat such and such recorded in"? The common doctrine is that the right of way is conveyed to all lots as shown on the plan and includes full use of all the right of ways as shown on said plat.
That is the position taken by the lawyer for those living in the subdivision. However; the deed to each lot in the subdivision only grants access from the lot to the highway (see wording in first post).

The creator of the subdivision held the ownership of the land containing the roadway for almost 10 years after the subdivision was created, and then deeded the land to a corporate entity (road association). In the deed to the road association it states, "This conveyance is expressly subject to rights previously granted, of record, to others for purposes of ingress and egress. These rights exist not only as to owners of lots within the sub-division but also extend to others who have previously granted rights of record and who are not owners of lots within the subdivision."

There is no requirement in anyone's deed to belong to the road association, and even their lawyer admits that no existing deed language, nor the road association, has any legal power to create obligations for anyone using the road.

So it appears to me that even though the creator of the subdivision referenced the subdivision plat containing the roadway in the deed to the road association, he specifically limited the rights, in each individual deed and also in the deed to the road association, to ingress and egress to the highway. In his "general scheme of development" he did not imply that the existance of the road on the plat gave full use; on the contrary, he specifically limited such use by covenant in all deeds.

I would likely agree that without those specific covenants you would be correct that the "general scheme of development" would include full use of the roadway to all within the subdivision, but that doesn't appear to be the case in this situation.

Thanks also to mcheng for the link. It may prove helpful in the future.
 
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Terminus

Member
interesting

It would almost seem that the term "leads from" is ambiguous in this application. Usually that term is applied to a single private road R/W....not to an entire subdivision. It definitely leaves an interpretation to what actually defines "leads from" in the description.

Two neighbors in this situation could hit a tee intersection with one going right and the other going left all the time....but ending at roughly the same place. So would that preclude the left turning neighbor from having rights to turn right? Interesting. Sounds like a poorly worded deed....but that happens.
 

154NH773

Senior Member
Two neighbors in this situation could hit a tee intersection with one going right and the other going left all the time
I agree the wording could be confusing or ambigious if there were more than one road in the subdivision; however, there is but one road that leads from the highway straight through the sub and allows access for all. In this case, my position is that the wording gives them all the right to turn out of their driveways toward the highway, but not the other way.
 

Terminus

Member
I agree

A single road with the legal worded in it's manner....I would agree with your interpretation. The owners would have the right to cross from the highway to their premises....no farther. Probably wasn't the original subdivider's intent, but without his testimony there is no way to know.

I suppose at this time the road association could grant full access to all owners along the entire right of way, but that would mean a new legal description and recorded deed.

Good one...definitely made me think a bit.
 

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