Prescriptive easement

[oteu159]

What is the name of your state (only U.S. law)? California
My 1000' driveway on 20 acres was constructed over 30 years ago. The driveway comes onto neighboring 40 acres about 10' for 60'. Two previous owners tried to block our access to no avail, since we had been using without permission for over 5 years. It has been in use ever since. Now, new owner says I must file to quiet the title or move road over. If I do neither, can he put in locked gate and keep me and another neighbor from getting to our houses?

 

[HomeGuru]

What is the name of your state (only U.S. law)? California
My 1000' driveway on 20 acres was constructed over 30 years ago. The driveway comes onto neighboring 40 acres about 10' for 60'. Two previous owners tried to block our access to no avail, since we had been using without permission for over 5 years. It has been in use ever since. Now, new owner says I must file to quiet the title or move road over. If I do neither, can he put in locked gate and keep me and another neighbor from getting to our houses?

**A: yes he can and then you will need to got court. Why not be proactive rather than reactive.

 

[154NH773]

Two previous owners tried to block our access to no avail, since we had been using without permission for over 5 years.

How did the previous owners "try to block you to no avail"? Did they go to court with you? If a court has ruled on this issue, then it is settled; if not, then I agree with HomeGuru that you will have to go to court in a quiet title action.
Either you or he can initiate the action. If he simply blocks you without going to court, you will have to get a court order preventing him from blocking you until a court rules on the quiet title. Either way, it will probably end up in court, so you might as well initiate the action.

Although Californian law specificies 5 years for adverse possession, you must meet the criteria for "adverse" as spelled out in the law. It is not always clearcut as to the outcome when you actually go to court. Judges have wide discretion and their rulings can surprise you.

You have other means to relocate the road onto your property; that might be the smartest thing to do. It is probably cheaper to relocate 600 sq ft of road than go to court.

There is twist to all this; and that is your other neighbor seems to have been granted an easement across your property. Whatever you do with YOUR access does not necessarily affect any easement granted across your property. If the third party has a described easement that doesn't lie on the roadway as constructed, he could attempt at any time in the future, to relocate the roadway to its rightful location. If you go to court, the third party will also have to be brought into the quiet title action and the result should be binding on all parties and describe the final location of the road right-of-way easement.

 

[oteu159]

prescriptive easement

It is not a simple matter to move road. This point is where creek is crossed, so along with moving the crossing, about 5 huge pine and cedar trees need to be removed, We recently paved that stretch. I am confident no court would see any merit in the move. This guy , 1st of all, this guy needs to do a survey. No one knows where one corner is exactly, so he knows not where the line actually is. In 6 months of dealing with the other neighbor and her lawyer, he has not involved a lawyer that anyone has heard from. Could he not save us all the money of quieting the title by granting easement? If he were to be so pleasant. And there is no other way for either me or the third party neighbor to get home. By the way, this guy does not use said driveway. Thanks for you input. After 33 years, i am not in the mood to be forced to spend money on this. The road is not moving. Simple as that.

 

[drewguy]

Look, you can say it's simple and you're not spending money, but it's not easy and all options cost something. I assumed that you've already told the neighbor that the road has been there for 30 years and you'd be happy to review options after he's had a survey conducted by a licensed surveyor and presented the results to you. If you haven't had that discussion that's the first thing to do.

Assuming talking through the issue hasn't worked, you have 3 choices:
1) Move the road
2) Sue the neighbor to quiet title/confirm the prescriptive easement and record it
3) Let the neighbor install gates or sue you to move the road. In either instance, you'll need to hire a lawyer, either to defend yourself or to get the gates removed.

So, you're going to have to pick your poison. As 154NH said, you're probably better off being proactive and suing to establish the easement is yours rather than driving up to find some gates one day.

 

[154NH773]

The road is not moving. Simple as that.

If you think a judge won't make you move the road, you may be surprised. The judge won't care how many trees and how much it might cost; he will only care whether you met the conditions for adverse possession, and he has wide discretion over that decision. Of course, if you don't like his decision, you can always appeal. Figure 4 years and $20,000 plus, and you still might not prevail.

I understand adverse possession and would use it myself under certain conditions, but it is actually a legal right to steal someone else's property. Courts don't always go along with that, regardless of the law.

 

[drewguy]

If you think a judge won't make you move the road, you may be surprised.

I suppose technically a judge isn't likely to make him move the road -- he's more likely to bar is use and, perhaps, order that the road bed be removed. He wouldn't be likely to order it rebuilt somewhere else.

 

[Terminus]

Just be nice

First it seems as both you and you neighbor don't know exactly were the boundary cross the road...as you stated that nobody knows exactly where the corner is. So the road might not even encroach on your neighbors property. I would start by asking the neighbor to see a recent survey map showing the encroachment including details of where the driveway encroaches on the boundary (dimensions from a corner).

If the road does encroach you can sue for an easement, offer to swap matching sized pieces of land to get the road on your property, or try for adverse possession. I would think though adverse possession would be hard to win since previous neighbors have informed you of your encroachment and no legal action was taken to fix the issue. So it would actually appear that you are trying to steal the road bed.

1-Find out where the driveway crosses the line
2-Ask for an easement
3-Offer to do a land swap
4-Sue for an easement
5-Try for adverse possession

And as the others have noted....it may be financially safer to try 1 through 3 and then maybe four.....adverse possession cases in my experiences are very expensive crap shoots.

 

[John_DFW]

.
1-Find out where the driveway crosses the line
.
3-Offer to do a land swap
.
And as the others have noted....it may be financially safer to try 1 through 3 .

Doing 1 first might put an end to any further steps.

 

[154NH773]

I suppose technically a judge isn't likely to make him move the road -- he's more likely to bar is use and, perhaps, order that the road bed be removed. He wouldn't be likely to order it rebuilt somewhere else.

True, but the effect would be the same. Remember, there is a third party neighbor holding rights to an easement.

If, as I think is probable, the third party neighbor joins the suit, he would probably ask the judge to rule in a manner that he would retain his right-of-way. The court's remedy, if not retaining the road where it is currently located, would be to move its location to the OP's land. In that case, the judge's order would be to move the road; or, at the very least, allow the third party to reconstruct the road on the OP's property.

 

[oteu159]

Thanks for all the responses. I'll chew on it.