Encroachment at rear property line

[notmyj]

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

As part of my property, I have a ROW that is included in my deed. This ROW was originally intended to be a street in the original plan of my neighbor hood in the early 60's. The street was never opened, paved, or even brought to the same grade as the intersecting street. This ROW is included in my tax roll, and I am paying taxes on this property. Now, it is generally understood that ROW's can not be rescinded. However, I found a state law that effects townships such as mine that reads:

53 P. S. � 67309. Time within which roads to be opened



� When proceedings have been initiated under this act for the opening and laying out of any public road in the township, the road shall be physically opened for use by the public within a period of five years after completion of the proceeding. If the road is not opened or if no proceedings have been commenced to compel the opening in five years, then the proceedings are void and the land proposed to be taken shall revert to the owners of the land free of any easement or right of the public to use the land.



1933, May 1, P.L. 103, No. 69, � 2309, added 1995, Nov. 9, P.L. 350, No. 60, � 1, effective in 180 days.

Considering the road has never been opened and the proposed road was completely on my property, it could be construed that the ROW is now null and void, making it my exclusive private property relating the part that is included in my deed.

With that in mind.... the neighbor behind me used the part of the ROW that went through his property to put a rock driveway in. No problem, I could care less. However, he went nearly 6 feet past my property line with the stone, killing my grass, which till this point I was maintaining. At no point did he ask me to go over the line. The driveway was put in last fall. As nicer weather has finally arrived, yesterday I used my garden tractor to push the stone back to the property line. An hour later, he came home, raked the stones back to where they were. He then drove through my yard, on the ROW to irritate me, then parked his truck even further on my property past the rocks over night, again to irritate me.

I was going to let it go after I pushed the rocks back, even pay out of my pocket to repair the yard and have it sodded. But I am now not going to consider this as his intentions to irritate have taken any good will I was willing to give. At this point, I willing to go to local magistrate to sue for damages to my property. However, I am not sure how to do this. Do I have to call the police for trespassing? What is my immediate course of action to get him to A: keep his driveway off of my property, and B: Have my yard repaired?

This issue is tied to the discussion of a "paper street" that I posted about months ago. At the beginning of the the thread, I believed it was a paper street. It was later discovered that is NOT a paper street, but rather a ROW. The discussion with illustrations can be seen at https://forum.freeadvice.com/neighbors-boundaries-108/paper-street-includes-relevant-pics-584778.html

What do I do from here?

 

[HomeGuru]

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

As part of my property, I have a ROW that is included in my deed. This ROW was originally intended to be a street in the original plan of my neighbor hood in the early 60's. The street was never opened, paved, or even brought to the same grade as the intersecting street. This ROW is included in my tax roll, and I am paying taxes on this property. Now, it is generally understood that ROW's can not be rescinded. However, I found a state law that effects townships such as mine that reads:



Considering the road has never been opened and the proposed road was completely on my property, it could be construed that the ROW is now null and void, making it my exclusive private property relating the part that is included in my deed.

With that in mind.... the neighbor behind me used the part of the ROW that went through his property to put a rock driveway in. No problem, I could care less. However, he went nearly 6 feet past my property line with the stone, killing my grass, which till this point I was maintaining. At no point did he ask me to go over the line. The driveway was put in last fall. As nicer weather has finally arrived, yesterday I used my garden tractor to push the stone back to the property line. An hour later, he came home, raked the stones back to where they were. He then drove through my yard, on the ROW to irritate me, then parked his truck even further on my property past the rocks over night, again to irritate me.

I was going to let it go after I pushed the rocks back, even pay out of my pocket to repair the yard and have it sodded. But I am now not going to consider this as his intentions to irritate have taken any good will I was willing to give. At this point, I willing to go to local magistrate to sue for damages to my property. However, I am not sure how to do this. Do I have to call the police for trespassing? What is my immediate course of action to get him to A: keep his driveway off of my property, and B: Have my yard repaired?

This issue is tied to the discussion of a "paper street" that I posted about months ago. At the beginning of the the thread, I believed it was a paper street. It was later discovered that is NOT a paper street, but rather a ROW. The discussion with illustrations can be seen at https://forum.freeadvice.com/neighbors-boundaries-108/paper-street-includes-relevant-pics-584778.html

What do I do from here?

**A: two issues- the ROW and the rock encroachment. Get a current survey and hire an attorney to deal with the encroachment issue.

 

[154NH773]

Considering the road has never been opened and the proposed road was completely on my property, it could be construed that the ROW is now null and void, making it my exclusive private property relating the part that is included in my deed.

The creation of a ROW in your deed, and the process for 'opening and laying out" of a township road are two different and distinct issues. I would say that despite the road never being established, it still exists as a non-extinguishable covenant upon your property. Only if the road was created or laid out by ordinance according to the statute would your quoted statute apply. That doesn't seem to be the case.

That said; whomever is the holder of the ROW right, be it the town or other landowners, it could be extinguished by all dominant tenants giving up their rights.

Depending on what the actual wording of the ROW covenant says, your neighbor may, or may not, have rights to spread gravel on your property within the confines of the ROW. You will have to research what rights he was given by the ROW easement, if any.

If the Township is the sole tenant of the ROW easement, and there appears no intent to ever "layout a road", you can go to court to have the easement vacated. Whether you are successful depends to a large part on if they object. There is a provision under the statute to petition the supervisors to "vacate" the "road", but that seems only to apply if the road was already "laid out" which it doesn't seem to be at this time. You should check the status of the ROW to see if the township ever "lay out" the road by ordinance as prescribed by law.

53 P. S. � 67304. Power to lay out, open, widen, vacate, et cetera

� (a) The board of supervisors may by ordinance enact, ordain, survey, lay out, open, widen, straighten, vacate and relay all roads and bridges and parts thereof which are located wholly or partially within the township.

 

[justalayman]

I would consider attempting to cancel the ROW based on your findings. Don't know if you will be successful but often times, in situations such as this, even if not actually supported completely by the law, since the ROW has effectively been vacated and there is no intention of ever using the ROW, they may relinquish it due to the cost to defend it.


Other than that, the ROW does not allow your neighbor to trespass onto your land. The only time the neighbor would be able to use the ROW would be if the ROW was put into use by the controlling government. He would have the same rights as every other member of the public in using the road created. Until that time, it is private property and under your control. Get a survey if you have not already gotten one so you can prove where the property line is.

 

[notmyj]

In 2012, the township had an engineering company draw a new map of the township, that is hung up in the township building. On this map the "road" in question is no longer listed on the maps. it shows my lot without the ROW or the street being drawn. It seems the township has "forgotten" about this "road". perhaps getting them to vacate the right of may be simple. Next question... how to bring this to the attention of the township? Name them in a civil suit, or just go to a board meeting and request they vacate the ROW.

 

[LdiJ]

In 2012, the township had an engineering company draw a new map of the township, that is hung up in the township building. On this map the "road" in question is no longer listed on the maps. it shows my lot without the ROW or the street being drawn. It seems the township has "forgotten" about this "road". perhaps getting them to vacate the right of may be simple. Next question... how to bring this to the attention of the township? Name them in a civil suit, or just go to a board meeting and request they vacate the ROW.

How about going down to the courthouse or city hall (whatever is the appropriate venue in your township) and making some inquiries first?

 

[Terminus]

ROW's

Interesting......The old time platted right of way?Is it a street, alley, just a plain ingress/egress R/W? You are implying by the statue you quoted that the road is a township road, but it sounds more like a limited r/w intended for the use of the adjoining parcels. So that is a definition of the r/w you will need to find out through the original records defining it.....but if I was a gambling man I would say there is limited reference to it beyond it just being a r/w....probably making it more of a private alley than a street. You are also going to be faced with what is defined by opening the r/w? Does that mean that there needs to be a paved street.....or a gravel driveway installed by the neighbor....or just neighbors occasionally using it to get to their backyard? There is so much to what is going on that you don't need free advice....you need to retain a lawyer.

As for the stone.....since you are making the assumption that the r/w doesn't exist, I can see why the neighbor is irritated. Obviously in his mind the r/w exists and he is using his rights to use it.....while you have limited his right to use it by moving his stone. In the end you are potentially in the bad as much as you think he is. I think this neighbor will be your biggest problem in the end.....he is using the r/w and it will be hard to make the r/w cease to exist if it is being used.

 

[154NH773]

Some good and thoughtful answers, but all speculation.
You must find out who are the dominant tenants on the right-of-way, and whether the township ever legally, by ordinance, lay out the road, or enacted the road.
Until you determine those issues, everything is just a guess.

 

[FarmerJ]

? How many other houses lots are in the same spot as yours ( meaning that this never developed roadway is at the rear and as you said with in your lot lines ? ) I ask because if there is more than just you perhaps they will join you in speaking to a Attorney & going to town council meetings and expressing desire to have them formally vacate the undeveloped road?

 

[154NH773]

As part of my property, I have a ROW that is included in my deed. This ROW was originally intended to be a street in the original plan of my neighbor hood in the early 60's.

I think everyone is jumping the gun in believing the town has any interest or right to the ROW easement at this time.

It is likely that the ROW was reserved by the developer of the "original plan" of the neighborhood to develop a road which would be turned over to the township at some point. The common process for a sub-division road in my town is for the developer to build the roads and THEN petition the town to "lay out" the road, or otherwise "enact" the road. We don't know if that ever happened in the OP's case.

The fact that the OP states that it is a ROW leads me to believe that the township has no current interest in the roadway, as normally they would take title to the property if they had "layout" the road.

The first step is to determine the CURRENT legal status of the ROW, who are the dominant tenants, and did the town ever take any legal action to "layout" or "enact" the road.

 

[notmyj]

I just got back from the Township Supervisors meeting. I gave each one a packet of all relevant info to the ROW/paper street. Had 10 min of discussion, questions, explanation, etc. I requested that they pass an ordinance to formally vacate the street. The majority of the board was ready to grant the vacation, the solicitor was on board with it as well, but wanted time to go over the packet, as well as make sure the wording was right to specify that they are only vacating the street/ROW as indicated on my deed.

So provided I get the vacation from the township, then what? The solicitor alluded that I would then have to bring an action of quiet title in the court of common pleas and in doing so I would have to serve notice to every home in this plan of the action of quiet title. I was thinking I would be able to get a default judgement in motions court (quiet title actions are heard in daily motions court) considering I would have proof of vacation along with the above quoted law that states that the property is to revert back to the property owner (me). I am probably wrong on this, but thats why I'm here asking questions... So how far out of reality am I?

My current plan is to first handle the the vacation of the ROW/paper street, then dealing with the encroachment after I wholly own that part of the party. Good plan?

 

[154NH773]

Don't assume the supervisors know what's going on, or are giving you good legal advice or information. Only a competent lawyer can do that.

From your previous comments you have not stated any facts that would actually allow anyone to comment intelligently on your situation. Maybe if you share the information you presented to the supervisors with us, we might be able to actually suggest something useful.

What is the EXACT wording in your deed that refers to the ROW easement?

Did the township ever "layout" the road or "enact" the road by ordinance?

Did the township ever hold a dominate tenancy in the ROW easement?

You would only have to commence a quiet title action if there are dominate tenants to the ROW easement across your property that will contest the extinguishment of the easement, or will not sign documents giving up their rights to the easement on your property. For that, you have to know who the dominant tenants are. Who are they?

 

[notmyj]

Don't assume the supervisors know what's going on, or are giving you good legal advice or information. Only a competent lawyer can do that.

From your previous comments you have not stated any facts that would actually allow anyone to comment intelligently on your situation. Maybe if you share the information you presented to the supervisors with us, we might be able to actually suggest something useful.

What is the EXACT wording in your deed that refers to the ROW easement?

Did the township ever "layout" the road or "enact" the road by ordinance?

Did the township ever hold a dominate tenancy in the ROW easement?

You would only have to commence a quiet title action if there are dominate tenants to the ROW easement across your property that will contest the extinguishment of the easement, or will not sign documents giving up their rights to the easement on your property. For that, you have to know who the dominant tenants are. Who are they?

I just noticed that you were involved in my first thread here about this issue. it is located at

https://forum.freeadvice.com/neighbors-boundaries-108/paper-street-includes-relevant-pics-584778.html

It shows some more relevant information and you seemed to have a decent handle.on where we going with it. I started this thread as I was concerned about the encroachment, but after the responses here I am trying to clear the ROW prior to dealing with the encroachment further.

with the link above, if any more relevant info is needed, let me know and I will get ASAP. currently I am on my mobile so its difficult to get images. However, the info I gave to the supervisors was a copy of my deed showing the relevant part that describes the ROW (which is in the above link), the original plan of lots (also in the link) and some of the statutes that pertain to a township of the second class.

As for dominant tenants, there doesn't seem to be any. the township stated last night that they have no interest in the ROW as it was never opened. As the lots in the plan were built different than the plan shows, it seems the road was never officially opened by ordinance.

Let me know if there is any more info I can provide to make this easier.

 

[154NH773]

Oh yeah, I remember. My original statement from the original post still stands:

You probably can't remove all easements from the property, because a utility easement is necessary for the utility company that has its services buried there. Removing the easements is not necessary to try and have the street vacated. They are two separate issues.

While the street was never "layed out" or otherwise "enacted", the town may still have a dominant interest in the ROW which will have to be extinguished, not vacated as per the statute which relies only on a road that was "laid out" as per an ordinance, but never actually built. You must determine what the township's legal interest in the ROW is. You say they are not a dominant tenant, but there must be a reason you are dealing with them.

As pointed out in the original post on this issue, a google street view showed pipes being laid in the ROW. Either the utility has an easement, or they lay the pipes illegally, which I doubt. You say your neighbor has no rights on the ROW lying on your property, but you have not proven that with any document search, and your other statements do not seem supported by facts or documents. I think you have some research to do before you can definitively say your neighbor, or the township, do not have rights as dominant tenants.

In case you misunderstand the meaning:

In Property Law, the estate to which an Easement, or right of use, is given is called the dominant tenement or estate, and the one upon which the easement is imposed is called the servient tenement or estate.

You are the servient tenement upon the property within your deed. If there is no dominant tenant, then you don't have to do anything. There are surely one or more dominant tenants and you must identify them. The easiest method would be to have a title company search the deeds and report back to you. Tell them what you are trying to establish so they have an idea what to search for.

 

[notmyj]

OK, time to bring this back up... The wheels of government hindered by life, turn slowly.

Over the past few months, and multiple meeting with the folks at the township, we are finally getting somewhere. In 1985 the township had, by ordinance, officially laid out the road in question. It was never opened as previously stated. They have agreed to vacate the road, exactly as it is described on my deed, and currently have the proposed ordinance advertised in the paper, as per the rules governing new ordinances. It is scheduled for final passage just before the end of the year, with no current opposition from the board.

So, lets say the township passes the ordinance officially vacating the road, that was laid out by ordinance in 1985. What would my next step be? Am I wrong to assume that since it was laid out by ordinance in 1985 and not physically opened within 5 years, that the above mentioned statute would be applicable? The statute coupled with ordinance vacating the street should set me up for an uncontested action to quiet title, correct? A quiet title would remove the ROW from deed going me sole rights to the property in question, is that correct?

I know this has been dragged out for so long, but things are moving along.