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  1. #1
    jim22265 is offline Junior Member
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    Arrow Ingress/egress easement rights

    What is the name of your state? Michigan

    The first 40' wide by 50' long section of my driveway is an easement "reserved for ingress/egress for the two adjoining parcels to the North described as follows"... I own this easement (I pay the taxes) and my two neighbors only have the right of ingress/egress over it and no ones title grants any additional rights. My questions are:

    The entire easement is currently paved and is cracked and in need of repair. When I do so my desire is to significantly reduce the amount of pavement, replacing about half with grass and some trees. So long as my neighbors continue to have a reasonable degree of ingress/egress, is it OK for me to grass and landscape a significant portion of this easement?
    Do either neighbor have any right to use the easement for parking when they have visitors? One does so frequently (which explains why they don't want the pavement area reduced).
    Do the neighbors have the right to locate their mail boxes on the easement? There are three mailboxes as well as some newspaper receptacles clustered on the easement and it looks like an unsightly apartment complex. The mail carriers can access the boxes just as easily if they were to relocate them to their land, so I would like them to do so.

    I have approached my neighbors about my plan and both were supportive of repaving. However, neither want the pavement area reduced, and neither agreed to move or replace their mailboxes with something less unsightly. They both say that doing so violates their rights yet neither neighbor agreed to contribute anything to the cost.

    As I plan to undertake this project anyway, I would like to eliminate the asphalt jungle look by reducing the pavement, adding more grass, trees or shrubs. What are my rights?What is the name of your state?
  2. #2
    Mrs Bridges is offline Member
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    Ingress/Egress, my favorite subject!

    I am not a lawyer, but I am a landowner burdened by an ingress/egress right of way easement across my property. So I feel your pain. And you should also know that I have done extensive research on this subject (Google), and consulted 4 different lawyers. I live in Maine, so things may not be 100% identical to Michigan, but this will give you some ideas of where to start looking and what questions to ask.

    First of all, if the grant specifically says ingress and egress, and nothing else is mentioned, then your neighbors may not park on your property -- even the part of it that is the right of way. Also, they may not store anything on it, such as a camper, snowmobile, trailer, boat, etc. Hey, they may want to park on it, and use it for storage, but you know what? That's a separate event. Meaning that they need to offer you money for that privilege, understanding that it is your right to refuse to allow them to do it (park and store) for any price. They cannot skateboard on it, play hopscotch on it, sunbathe on it, picnic on it, or set up a tent and camp out on it. Just because they have an easement does not mean that they have the license to do anything they wish on your property. As I understand it, the grant specifically stated ingress and egress. Of course they could ask your permission, and you would be free to say yes or no to all those other uses. But they are not legally entitled by the easement grant to do anything other than ingress/egress which means passing over your property.

    Also, if the grant is silent with regard to maintenance, then you are free to maintain as you wish. You may choose to pave or gravel or whatever. They are not allowed to touch your land in any way. The only exception to this is that if you choose not to maintain the road yourself, then you may not prevent them from keeping the roadway passable. For example, if a huge storm blew 3 large trees across the road, and you did not have the money to have them cut up and hauled away -- then you could not prevent your neighbors from doing it (either themselves, or hiring a contractor.) And they could not make you pay for it. However, even though they would have the "right" to maintain in a "blowdown" scenario such as I just mentioned, under no circumstances do they have the right to damage your property in getting the job done. If the land was wet when the trees were removed, and big trucks left big ruts, they are legally obligated to pay you for the damage.

    Here are some internet resources you may find helpful:

    "....Generally, an easement for ingress and egress confers only the right to pass over the land and not to control the real estate or install improvements....An easement is limited to the purpose for which it was created and cannot be extended by implication...."
    [url]www.in.gov/nrc/decision/95-041w.v7.html[/url]

    With regard to narrowing the right of way, here is something I found on the internet:

    "....As a rule, where the intention in granting an easement is to afford only a right of ingress and egress, it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder....A right of way along a private road belonging to another person does not give the [easement holder] a right that the road shall be in no respect altered or the width decreased, for his right * * * is merely a right to pass with the convenience to which he has been accustomed * * * ....Thus, in the absence of a demonstrated intent to provide otherwise, a landowner burdened by an express easement of ingress and egress may narrow it, cover it over, gate it or fence it off, so long as the easement holder's right of passage is not impaired (see, e.g. Dalton v Levy, 258 NY 161, 167 [narrowing of a right of way by construction of a building on it]....affording the landowner this unilateral, but limited, authority to alter a right of way strikes a balance between the landowner's right to use and enjoy the property and the easement holder's right of ingress and egress....."
    [url]http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ny&vol=i98&invol=0127[/url]

    "....This holding properly applied the principle that the owner of the servient estate (the landowner) may use the land in such a fashion as he pleases as long as the use does not interfere with the purpose for which the easement was created...."
    [url]www.wisbar.org/res/capp/z1999/99-0257.htm[/url]

    Good luck, and let us know what happens!
  3. #3
    Ozark_Sophist is offline Senior Member
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    My ingress/egress easement grants me the right to ingress/egress over all that part of subserviant landowners land described in the deed. Narrowing the easement by building, planting, or otherwise encumbering the easement with a fence, gate, landscaping, etc is an encroachment upon the easement.
  4. #4
    Mrs Bridges is offline Member
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    Evidently the state of New York sees it differently, to wit "Dalton v Levy, 258 NY 161, 167 [narrowing of a right of way by construction of a building on it]".

    I do not know how Michigan might view it.

    Also, if the servient estate would like more grass and less of an asphalt jungle, I don't know if grass would be viewed as an obstruction or not.
  5. #5
    Ozark_Sophist is offline Senior Member
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    Quote Originally Posted by Mrs Bridges View Post
    Evidently the state of New York sees it differently, to wit "Dalton v Levy, 258 NY 161, 167 [narrowing of a right of way by construction of a building on it]".
    My easement grant was for All that part of. An encroachment on the easement negatively impacts my ability to use all that part of my neighbor's property described by deed for ingress/egress regardless of my continuing ability to ingress/egress. This demonstrated intent to provide my property with an easement of a specific width would nullify Dalton v Levy.

    The OP should take copies of the relevant deeds to a local real estate attorney for a consultation.
  6. #6
    lcannister is offline Senior Member
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    I have properties in 3 other states with like deeded usage and I would not be allowed to narrow or otherwise change the terms of the entire DEEDED usage of this area.

    In the state where I reside the mailbox locations are dictated by the Postmaster and are in many subdivisions located on one side of the street. In otherwords my neighbors mailbox would be located right beside mine on MY land and that is where it will stay.

    The best way to keep people "off your property" is NOT to purchase any properties that contain easements/ingress/egress/.

    Local Atty versed in real estate matters.
  7. #7
    Mrs Bridges is offline Member
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    A local real estate attorney would be best able to advise, both in regard to Michigan's actual laws, and how the Michigan courts have interpreted them over the years.

    If the deed is silent about maintenance, then the dominant estate (Original Poster, that's you) is under no obligation to pave or repair anything, and cannot be forced to do so. If the road is getting shabby and OP wants to remedy this, and if OP is willing and able to pay for it all alone, then go for it. Don't be too surprized that the easement users are not chipping in -- remember the little red hen. No one wanted to help her bake the bread, but they were more than willing to help her eat it.

    Having said that, if OP decides that all he can afford (or is willing to do) is to resurface part of the road (for example a 20 foot wide strip), and assuming that Michigan is a state where the dominant estate is forbidden to grass over part of a paved easement, then his neighbors would have the choice of coughing up some cash and paving the remaining 20 foot width of the road -- or, they could choose to do nothing, and watch the unmaintained part of the road crumble over time.

    If as OP claims, the neighbors want the entire width of the ROW paved so that they can park on it -- that's not going to fly. Ingress/Egress does not mean parking.

    I live on a city street which is a dead end. There are only 5 houses beyond me. The street in front of my house has been paved and re-paved over the years. The current paving is not as wide as some of the previous ones have been. Currently, the pavement measures 15 feet wide. On the far side of the road, there is about 2 feet of dirt / old pavement. It is shallow, and we drive over it and park on it all the time. On the near side of the road is my lawn, and people drive over it (mostly just the Mail Lady), which has killed some (but not all) of a 1 foot strip of grass along the road. My point is that my grass lawn, and the broken down pavement on the other side of the road is not an impediment or an obstruction to someone using it to drive over.
  8. #8
    Mrs Bridges is offline Member
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    [url]www.publications.ojd.state.or.us/A107753.htm[/url]

    This is a case from Oregon which involves a 25 foot ROW. The easement contains a gravel road that varies between 14 and 20 feet in width. The dominant estate wanted to widen the road, pave it, and put a gate across it. Widening and paving the road would require the removal of trees, large rocks, and a dirt berm placed near the road by the landowner (servient estate).

    The trial court, after viewing the property, ruled that the easement was sufficient for ingress and egress, that paving was not necessary and that a few trees would have to be limbed or totally removed in order to allow continued access to the dominant estate....

    The defendant (dominant estate) appealed the court's ruling asserting that the standard by which the appellate court should review the trial court's decisions is "reasonableness." His contention was that if his requested actions are reasonable, he should be allowed to make them.

    The plaintiff (servient estate) responds that the driveway as ordered by the court is sufficient to provide defendant with ingress and egress, which is the purpose for which the easement was granted. Plaintiff contends that the standard by which to evaluate defendant's request is whether his proposed changes are reasonably necessary for ingress and egress and whether they would infringe in any significant way on plaintiff's dominion and control over his property.

    At the end of the case summary is this reference:

    2. "When the purpose of an easement is attainable by using less than all the designated area, courts typically require the easement holder to use only as much of that strip of land as is reasonably convenient or necessary." Bruce, Law of Easements and Licenses in Land S 7.02[5] (1995).....when grant of easement is for 'roadway' and physical description is of strip of land 25 feet wide, easement holder can be restricted to use of existing 9-to-11 foot wide road)."

    The trial court ruling was affirmed by the appellate court, largely in favor of the servient estate.
  9. #9
    Ozark_Sophist is offline Senior Member
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    Quote Originally Posted by Mrs Bridges;1654607
    2. "When the purpose of an easement is attainable by using less than all the designated area, courts typically require the easement holder to use only as much of that strip of land as is reasonably convenient or necessary." Bruce, [I
    Law of Easements and Licenses in Land [/I]S 7.02[5] (1995).....when grant of easement is for 'roadway' and physical description is of strip of land 25 feet wide, easement holder can be restricted to use of existing 9-to-11 foot wide road)."

    The trial court ruling was affirmed by the appellate court, largely in favor of the servient estate.
    Again, it is the exact language of the easement grant that determines what may be done to the easement. In this example, the dominant party was not granted the right to maintain, improve, or place improvements upon the easement. It is the language that is important and given that language for easements vary widely, it is difficult to find case law that addresses each particular example. Which is why the OP should take the documents to a local real estate attorney.

    I am agreeing that any other use other than ingress/egress is prohibited unless included within the four corners of the easement deed.
  10. #10
    jim22265 is offline Junior Member
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    Any More?

    First, I'd really like that each of you for taking the time to post such educated and well thought out responses to my query. I am finding this very helpful.

    My property is located at the end of a dead end public road whose last 500 yards is a township recognized private road servicing the last 15 homes. The private section begins at a half gate restricting traffic to one side. This half gate is posted with signs saying "Private road", "Dead End", "No turn around", "Residents and guests only". Regardless, being a lake front road with a nice view quite a bit of public traffic (house hunters, heavy trucks, maintenance people etc.) ignore the signs, drive around the half gate and find themselves in need of a turn around. They must avail themselves of a turn around by using any driveway not protected by a chain, gate or other ingenious obstruction. Being the last house, my wife and I get more of this than anyone and suspect this explains the poor condition of our driveway (both the easement section and my private portion).

    Drunk or otherwise impaired motorists have actually driven into my brick on at least two separate occasions when they failed to stop. On a third occasion someone drove around my house, through the side yard (just 8' wide and bordered by a fence on one side and my home on the other). After managing to navigate this torturous path, the individual ended up in my boat well!

    By limiting the easement's pavement to half it's width I am hoping to curtail some of this unwanted traffic. However, I don't want to infringe on my neighbor's right to ingress/egress in the process. That said, one of the two benefactors of the subject easement has a reputation for being quite difficult. When I told her about my repaving plan she was very rude and assertive regarding her perceived rights of use of the easement. Then she not only refused to chip in but wanted to ensure I was planning to use a 6-8 inch thick, 6-bag mix, reinforced by rebar and mesh. Just last week this neighbor cut down two shrubs on the easement and left the stumps in the ground. She claimed they were scratching her car if she backed up too far. You would have to see the location of these shrubs to her driveway in order to appreciate just how ridiculous her concern was.

    Suspecting I was going to have my hands full trying to appease this individual I need to get educated on each of our rights (which prompted this thread).

    Again, I appreciate all the advice and differing perspectives.
  11. #11
    Mrs Bridges is offline Member
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    Correction

    I need to correct an earlier post I made on this thread:

    "If the deed is silent about maintenance, then the dominant estate (Original Poster, that's you) is under no obligation to pave or repair anything, and cannot be forced to do so."
    I should have said servient estate. The servient estate is the land owner, and the dominant estate is the holder of the ingress/egress right of way. Sorry!

    Also, in contacting a local attorney, ask questions and be sure that s/he specializes in real estate matters such as yours. The first attorney I spoke with was our family attorney who handles probate/estate issues, and he was just dead wrong on several points. What he was telling me did not seem right at all, so I pursued the matter with another attorney who advertised himself as specializing in real estate issues like mine, and I have been more than satisfied with his expertise. The thing that bothered me about my family attorney was that he didn't frame his advice with "this is what I think, but it is not my specialty...." He passed off his advice as gospel. I am so glad that I did not assume he was right, and stop there.

    My parents granted the ingress/egress ROW to close, long-time family friends when they sold them a corner off our 8 acres. The purpose of the ROW was to allow the non-waterfront neighbors access to the wharf on our waterfront property so they could attach a ramp and float to the wharf and keep their boat there. The grant was silent about maintenance, and it said nothing about storage. However, my parents gave permission to their friends to landscape the area, keep it mowed, to repair the wooden wharf, and to store their float on that land during the off-season (our float was stored there, too). My family lawyer asked if the friends had done this for more than 20 years. I said yes, but it was with my parents' express permission. The friends always asked, and my parents' always gave them permission. Well, the family lawyer told me that because it had gone on for more than 20 years, the dominant estate had now acquired the right to continue with those acts. I can't remember if he used the term prescriptive easement or not. The trouble was that these friends had died, and their property was being sold to people we did not know. The new owners were planning to pick up where our family friends had left off. They told me they were delighted to buy their property because they could "have all the benefits of waterfront ownership without having to pay the taxes." Gulp. And they all moved away on the Group 'W' bench.

    What I found on the internet, and what the real estate lawyer confirmed was, "If the use of the easement is permissive, no right to prescription can arise, no matter how long the permissive use continues. When the use originates by permission, it is presumed to continue with permission." The new neighbors were trying to expand the existing easement usage rights.

    So another issue that the OP might want to ask a local real estate atty about is how to prevent the dominant estates from acquiring a prescriptive easement to expand the existing ROW ingress/egress usage rights (e.g. parkiing on it). I found this on the internet, and it is from Michigan, his state:
    [url]www.mlswa.org/Legal/Legal42.htm[/url]
  12. #12
    Mrs Bridges is offline Member
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    Just so you know....

    Your neighbor has absolutely no right to be cutting, mowing, or trimming anything on that easement without your express permission. If she has a problem with something, she needs to come to you first, and allow you the opportunity to handle it. You may have felt that the shrubs could have been trimmed rather than removed entirely. Or you may have wanted to transplant and relocate the shrubs. In any event, the shrubs do not belong to her, and as we say in Maine, she needs to keep her hands "offen 'em". What she did was to commit a trespass.

    Where it gets murky is that if you trim the bushes, but she decides it is not good enough...well then, the two of you have an issue, which will probably continue to be an issue at some level until it is resolved legally.

    Or, if you tell her that the bushes are not an impediment, and you want them left alone, but she cuts them down anyway....then you might be entitled to damages, but you would probably have to take her to court to get it, because it sounds like she would not pay you otherwise. And here is where the local real estate atty can tell you how the Michigan courts have viewed these scenarios in the past, and what your chances for prevailing are -- as well as the estimated costs.

    Let us know how this turns out!
  13. #13
    jim22265 is offline Junior Member
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    The plot thickens...

    First off, I liked the reference to Alice's Resturant. One of my favorites, Kid.

    I checked all three titles and discovered I may not be the owner. Each of the three describe the easement as follows:

    Ours:
    ... RESERVING PARCEL OF LAND FOR INGRESS & EGRESS TO ADJACENT PARCELS TO NORTH DESC AS FOLL: COMM AT PT 50.0 FT S88*19'E FROM SE COR LOT 1 SUPERVISORS PLAT NO 10; TH EXTENDING S89*34'30"E 56.0 FT; TH S0*03'W 40 FT; TH N89*34' 30"W 56.0 FT; TH N0*03'E 40.0 FT ALG E END OF XXX RD (40 FT WIDE) TO POB. SPLIT ON 02/19/2005 INTO 1050 0009 01;

    Neighbor 1:
    ... RESERVING A PARCEL OF LAND FOR INGRESS & EGRESS TO ADJACENT PARCELS TO NORTH DESC AS FOLL: COMM AT PT 50.0 FT S88* 19'E FROM SE COR LOT 1 SUPERVISORS PLAT NO 10; TH EXTENDING S89*34"30"E 56.0 FT; TH S0*03'W 40.0 FT; TH N89*34'30"W 56.0 FT; TH N0*03'E 40.0 FT ALG E END OF XXX RD (40 FT WIDE) TO PT OF BEG. Split on 02/19/2005 into 1050 0008 01;

    Neighbor 2:
    ... AND ALSO A PERMANENT EASESMENT FOR INGRESS & EGRESS OVER THE FOLLOWING DESC LAND; COMM AT A PT 40.0 FT S88* 19'E FROM THE SE COR LOT 1 SUPERVISORS PLAT NO 10; TH EXTENDING S 89*34'30"E 56.0 FT; TH S0*03'W 40.0 FT; TH N89* 34'30"W 56.0 FT; TH N0*03'E 40 FT ALG E END OF XXX RD (40 FT WIDE) AT THIS POINT BEING A PRIVATE ROADWAY.

    I am the Southern most parcel so the phrase "ADJACENT PARCELS TO NORTH" made me think this verbiage would only be on my legal description (it doesn't really make sense for theirs to say this). Additionally, Ours and Neighbor 1's legal description reads differently than Neighbor 2's (RESERVING... vs. AND ALSO...). I will have to talk to the township to see who is 'servient' and who is 'dominant'. However, in the past the Township wasn't much help as this area was split up back in the 60's.
  14. #14
    Mrs Bridges is offline Member
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    Certainly reviewing the city tax maps is part of your fact-finding mission. However, all that endeavor will show you is who the city thinks owns that section of real estate. And they may not be right. And quite frankly, as long as someone is willing to pay the taxes on it without question, they don't care.

    If the deeds are inconclusive, or undecipherable, then I believe your only recourse is to take your plight to someone who specializes in title searches. From the wording of the deeds, it sounds like you know exactly where the ROW is, you just aren't sure who owns it. But if you feel that you are not too sure about the exact location of the ROW, then you need a surveyor to assist you. Perhaps he will provide you with 27 8-by-10 color glossy pictures with the circles and arrows and a paragraph on the back of each one explaining what each one was. (I'd try for it at least.)
  15. #15
    Ozark_Sophist is offline Senior Member
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    Quote Originally Posted by Mrs Bridges View Post
    Perhaps he will provide you with 27 8-by-10 color glossy pictures with the circles and arrows and a paragraph on the back of each one explaining what each one was. (I'd try for it at least.)
    I say what?

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