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  1. #1
    Kate Alberghini is offline Junior Member
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    Planting trees in a right of way

    What is the name of your state (only U.S. law)? Vermont
    Can anyone other than the owner of a known right-of-way, including the actual land owner, plant trees in the known right-of-way which was at one time a used road but is no longer?
    Last edited by Kate Alberghini; 09-04-2009 at 09:11 AM.
  2. #2
    Stevef is offline Senior Member
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    Quote Originally Posted by Kate Alberghini View Post
    What is the name of your state (only U.S. law)? Vermont
    Can anyone other than the owner of a known right-of-way, including the actual land owner, plant trees in the known right-of-way which was at one time a used road but is no longer?
    Yes, it's possible.
  3. #3
    Kate Alberghini is offline Junior Member
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    Trees in a rOW

    How would one protect the right-of-way then and if a 3rd party (not the land owner or the right of way owner) planted trees in the right of way, would/could they be liable for legal repercussions by the right of way owner?
  4. #4
    Some Random Guy is offline Senior Member
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    Who is this random person planting trees on somebody else's property? Did somebody give them permission or ask them to plant trees? Are they a government agency? Are the trees mature or can they be trimmed down to grass level with a lawnmover?

    Have you considered offering the trees for free to anyone willing to uproot and relocate them?

    In general, yes a third party can be sued for damages if they trespass on a landowner's property and damage it without permission. Not sure yet if this is the case for you.
  5. #5
    drewguy is offline Member
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    Quote Originally Posted by Kate Alberghini View Post
    How would one protect the right-of-way then and if a 3rd party (not the land owner or the right of way owner) planted trees in the right of way, would/could they be liable for legal repercussions by the right of way owner?
    You would remove the trees. You could take the further step of suing the planter for the costs of removal and any damages that may have resulted.

    The question is a bit odd. The owner of the land should not plant trees in a right of way (I'm assuming this means a valid easement) or should at least be prepared to have them removed to provide access to the easement holder. The easement holder cannot plant trees in the right of way unless the easement is a planting easement (which I've never heard of but perhaps exists somewhere).
  6. #6
    FarmerJ is offline Senior Member
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    If the party who had the benefit of the easement has not used it in many years and the easement is actually recorded the easement could be formally ended by the one who had the benefit of it if they have own access to public street/road and is willing to sign a agreement giving up any further right to it Im sure the agreement could be prepared by a local real estate atty at a low cost and properly recorded. Try the links above to locate a real estate atty to assist you.
  7. #7
    154NH773 is offline Member
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    There are generally two parties to an easement. One is the servient tenant who owns the property; the other is the dominant tenant, who has the right to use the property for some specific purpose.

    An appurtenant easement exists regardless of who owns the property and the rights transfer to new owners of the dominant rights. An easement in gross may expire when a dominant tenant moves or dies.

    The wording of an easement usually prevails, but if the terms are not spelled out or are ambiguous, then a court may be asked to decide the rights and responsibilities of the parties.

    A servient tenant may not block the rights held by the dominant tenant, and the dominant tenant may do things to the easement in order to ensure his rights may be exercised.
    A third party, with no rights to the easement right-of-way, may not block the dominant tenant, and could be sued by him if they did.

    You really didn't give a detailed description of your particular problem, or what your position is, so it's difficult to answer with anything but generalities.
  8. #8
    Kate Alberghini is offline Junior Member
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    more ROW ???

    so more specifically about the trees in the right of way and more background.
    It has to do with a supposedly landlocked piece of land that my father owns and wants to put a modular home on. His lawyer found a deeded right-of-way from the 1920's for the property above him that seemingly provided an easement by necessity for my father's piece through a lower piece. The lawyer gave my father the go ahead to cut trees in this deeded ROW (deeded to the property above him). He did cut some small trees only in the ROW, thinking he was okay to do so. Now the guy in the lower piece is suing him for timber trespass and wants him to replace the trees that he cut - planting trees in the ROW. I am still researching all the deeds and with them going so far back there seems to be gray language and exchanges that were not recorded and so on.
    So does the dominant tenant or the servient tenant have the right to sue him, if either as it is a deeded ROW.
    In digging for information there are various factors of ancient roads, easement of necessity of which this is as there are no other feasible access routes to the property.
    I would appreciate any tips, ideas, thoughts to help my dad. Thanks to all!!!
  9. #9
    154NH773 is offline Member
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    If he has an easement right of way, then he has the right to cut the trees, but should have left the timber for the owner of the property.

    I'm not sure what you mean by
    His lawyer found a deeded right-of-way from the 1920's for the property above him that seemingly provided an easement by necessity for my father's piece through a lower piece.
    If your father only has a "seemingly" easement, that doesn't sound like he has a clear easement, which he may have to obtain through a court in a quiet title action.

    My neighbors also threatened me with timber trespass when I removed trees from a deeded right of way. I resolved the issue by having an expert estimate the value of the removed trees and paid the servient tenants (owners). Timber trespass in NH might result in a fine from three to ten times the value of the timber.

    Your father probably should have informed the owner he was going to cut the trees, and asked what he should do with the timber. In my case, the owners would have insisted that I not cut the trees, so I cut them without asking. My mistake was to not leave the timber for them.
    Last edited by 154NH773; 09-08-2009 at 10:05 PM.
  10. #10
    Kate Alberghini is offline Junior Member
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    Thanks for your help on this - this case continues to get more complex.
    So the "seemingly" part - lawyer #1 wrote a letter to my dad giving him the go ahead to cut the trees in this right of way. He did not ask because like your neighbor they would have said no. The trees are still piled on my dad's land for the neighbor. The trees have been valued by the state forester at $13.00 (really just small scrub trees). The neighbor suing for timber trespass values them at $189,000 and doesn't want my father to be allowed to use the current private road to get to his land - the neighbor is trying to take my father's land and shut down the right of way. In my father's deed it does state "no known right of way" but the property above my dad owns a right of way across my dad's and through the neighbors where my father cut the trees - hence the right of way by necessity.
    My dad admits to the mistake of cutting the trees but it was based on advice from lawyer #1 and not with any malicious intent.
    I need to find ideas to research so my dad can keep his land without losing his shirt over a handful of scrub trees. This neighbor is just nasty and vicious. The cutting did not hurt any view.
  11. #11
    154NH773 is offline Member
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    the property above my dad owns a right of way across my dad's and through the neighbors where my father cut the trees - hence the right of way by necessity
    The fact that another neighbor has a right-of-way doesn't create a "right of way by necessity" for your father. Only a court can create such a right.

    What is the position of the other party who does have a right-of-way? If your dad had cut the trees for him there might not be a problem, because he would "probably" have a right to clear the easement in order to utilize his rights.

    Check the following website for some understanding of timber trespass in VT.
    [url=http://www.vtbar.org/Upload%20Files/WebPages/Attorney%20Resources/juryinstructions/civiljuryinstructions/timber.htm]I[/url]

    I would make sure you have an estimate of the value from an expert, and photos of the trees before they disappear.

    The fine for timber trespass is three times the value, so it might be fairly small. That doesn't mean that your father couldn't face a civil suit for more. Where did the $180,000 figure come from, that seems quite excessive for $13.00 worth of trees?

    If your father's land is landlocked, begin a court action to gain an easement by necessity, and make a case to the court that it should follow the path of the existing right-of-way.
    Last edited by 154NH773; 09-11-2009 at 07:26 AM.
  12. #12
    Kate Alberghini is offline Junior Member
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    Thank you. I really appreciate your ideas and suggestions. If you think of any thing else I will be continuously checking in.
    my very best, kate
  13. #13
    Kate Alberghini is offline Junior Member
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    oh, the 180,000 figure came from the neighbor suing my dad for replacing the trees because it "ruined a view from a 3rd story office" and even though the value of the wood cut was only $13.00 (certified state forester value) and certainly not enough or big enough trees to ruin a view. As mentioned the neighbor is trying to "take" my dad's land because he thinks my father will lose and he will not be able to pay the bill and thus have to give up his land. My father is an old Vermonter who has worked hard all his life and just wanted to retire on this land and do some sugaring and mind his own business.
    so much more but I hate to bore you with all the details - it is just unbelievable
  14. #14
    154NH773 is offline Member
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    it is just unbelievable
    No, I believe it. Many people take advantage of the legal system by initiating frivolous lawsuits, hoping that the other party won't be able to afford to defend themselves.

    Unfortunately, this could escalate into a very expensive litigation for your father.

    While I won't make a judgment on whether he actually "ruined a view" and deserves to pay a judgment, there should be an expectation that someone actually holding the easement could have done the same thing legally, and therefore; the damage claim seems unreasonable.

    Have you contacted the party above your father's? That person holds an easement for a right of way, and would have the right to remove the trees blocking it. He could say your father was clearing the trees for him. If you don't know the person, you can get his name and address from the Town's tax records.
    Last edited by 154NH773; 09-12-2009 at 02:56 PM.
  15. #15
    Kate Alberghini is offline Junior Member
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    We are working on contacting the people above my dad. It is a corporation and hard to get a hold of. There was an old talc mine that operated on that land in the 1920's and I guess quite a community of workers that lived up in there - it has been long since closed to mining and is now just unused land. thanks for the tip - I will keep trying to contact them.

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