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Trying to use Easement Rights! Dealing with Swindler Type!

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tyjy

Junior Member
What is the name of your state (only U.S. law)? Wisconsin

We just bought a cabin with an "easement" to a river. The owner of the property we own the easement rights to built a fence and planted trees some time ago before we bought. The legal description of the easement states we have a "10 foot width of pedestrian and vehicular traffic" use and describes the dimensions on the plat. We approached this neighbor and asked for our access, he said if we touch a single branch he will sic his lawyer on us! What would you do to be able to use what's legally ours to use?? (trees & the fence block our use)

If we have it surveyed, should it be a "certified survey" (I think there's other types but not sure)?

If the survey is marked can we cut the trees that are in the 10 foot width of easement and take down a portion of the fence, or does he have to do it?)

If he sues us, will HE have to pay our attorney fees if we are proved in the right?

(word has it this neighbor sues every one and their cousin and is a "swindler" type of guy who racks up atty expenses till you cry uncle & he wins!)

Thank you so much for any advice!
 


justalayman

Senior Member
If he sues us, will HE have to pay our attorney fees if we are proved in the right?
almost assuredly not so keep that in mind


It might behoove you to start out in court seeking an injunction ordering him to either remove the trees blocking the path or allow you to remove them as well as any fence that does not have a gate in it allowing you to utilize your easement. That would save a lot of "sue them until they cry uncle" possibilities.

without a survey, unless the easement has a very generic description, you have no way of knowing exactly where the easement lies. Speak with a surveyor about what type of survey they suggest for a possible court action.
 

HomeGuru

Senior Member
What is the name of your state (only U.S. law)? Wisconsin

We just bought a cabin with an "easement" to a river. The owner of the property we own the easement rights to built a fence and planted trees some time ago before we bought. The legal description of the easement states we have a "10 foot width of pedestrian and vehicular traffic" use and describes the dimensions on the plat. We approached this neighbor and asked for our access, he said if we touch a single branch he will sic his lawyer on us! What would you do to be able to use what's legally ours to use?? (trees & the fence block our use)

If we have it surveyed, should it be a "certified survey" (I think there's other types but not sure)?

If the survey is marked can we cut the trees that are in the 10 foot width of easement and take down a portion of the fence, or does he have to do it?)

If he sues us, will HE have to pay our attorney fees if we are proved in the right?

(word has it this neighbor sues every one and their cousin and is a "swindler" type of guy who racks up atty expenses till you cry uncle & he wins!)

Thank you so much for any advice!
**A: there is an ALTA survey.
 

tyjy

Junior Member
Any tips how to save money trying to handle this myself? I can't waste a single dime : /
thanks
 

justalayman

Senior Member
ya, hire a lawyer if you are not comfortable doing this. You already said the guy is litigious. If you do not know what you are doing, he will run all over you.
 

154NH773

Senior Member
I haven't researched WI law, but in my state the servient owner may not block an easement or demand that the dominant tenant (you) divert from the path of the described easement. If the servient owner blocks the easement, you may travel outside the easement as necessary to get around his obstruction.

Is there an unblocked path to the water? Perhaps you can assert your right by driving a 4-wheeler through his property to the water, and if he complains, explain that you may bypass his obstructions as necessary to obtain your access.

Send him a certified letter demanding he remove the obstructions from your right of way, and explain that if he refuses, you will remove them yourself. Give him a reasonable time to respond, and then proceed with clearing the easement as necessary. Be careful to only clear it as necessary to provide the type of access stated in the language. He could claim that taking of some trees was unnecessary to get the access you are entitled to.

Have a competent surveyor mark the centerline of the 10' easement, and be careful to stay within the bounds.

If you can't handle a court case yourself, and can't hire a lawyer, then forget it and don't do anything.
 

tyjy

Junior Member
Did I say thanks? No I did not : (
I was waiting for additional comments but should have said "THANKS" much sooner than this...so sorry...

MY SINCERE THANKS to you all for your help! I very much appreciate it!
 

154NH773

Senior Member
Please keep us informed of the success or failure of the action you take. Many of the posts to this forum receive varying suggestions, and it would be nice to know what the outcome was.
There is no substitute for "real" legal advice from a local attorney, but in the end you have to decide what to do.
If your situation winds up in court, a good rule of thumb is; it will take 2 years and $20,000. If you litigate it yourself, against a lawyer, it would be less money, but the court will often lean to the side with the attorney.
 

154NH773

Senior Member
One last suggestion; If you decide to proceed in clearing the easement, make sure you act reasonably. Don't damage or discard his fence when/or if you remove it. Don't go one inch outside the easement. Document everything with photos. Have a surveyor draw a plot of the as-built path, showing it is totally within the granted easement. Don't be bluffed by his threats or letters from his lawyer, proceed until a court orders you to cease. Don't get into shouting matches with him; simply assert your rights firmly.
I have experienced almost exactly what you describe, and successfully asserted my rights.
 

drewguy

Member
Any tips how to save money trying to handle this myself? I can't waste a single dime : /
thanks
Lawyers are never inexpensive, but as other say you should hire one.

Keep in mind that the initial costs will not be too high - having a consultation with a lawyer and having him draft a letter shouldn't take more than 2-3 hours of his time, which is not a huge amount of money (likely less than $1000, which I realize isn't chump change).

If you get into litigation it could get expensive, but discuss with the lawyer ways to minimize fees. Maybe the lawyer has an associate with a lower billing rate that can do most of the work. Maybe the lawyer has handled similar cases (this is something to ask about at the beginning) so they don't need to learn the relevant law.

In your case, the law seems pretty straightforward, assuming the deed is correct and the survey is correct.

As others have suggested, if the neighbor is a fighter then you may be better off establishing your rights in court rather than pressing them in the field and then having to defend a lawsuit where issues of whether you acted reasonably are put at issue. Getting a ruling as to what you are allowed to do gives him no wiggle room.
 

tyjy

Junior Member
Thank you all for all the advice. I greatly appreciate it & the time it took for you to care to help!!
 

Mass_Shyster

Senior Member
I'm glad this popped back up. Last night's bar review was easements.

The way to enforce an easement is to file an injunction enjoining the servient tenant (other guy) from blocking your easement.

One question that I didn't see answered is "When did he block the easement"? If it's been blocked for 20 years, the easement may have terminated by prescription.

Since the other guy has already threatened litigation, I suggest firing the first shot, by filing a complaint for an injunction. If you do nothing, and he continues blocking it for 20 years, the easement will be terminated.
 

justalayman

Senior Member
The way to enforce an easement is to file an injunction enjoining the servient tenant (other guy) from blocking your easement.
gee, I think we have heard something like this before.

One question that I didn't see answered is "When did he block the easement"? If it's been blocked for 20 years, the easement may have terminated by prescription.
I disagree but won't stand too proud on that statement. If you could provide some support that this is possible would be really great. I, personally, have never heard of a person being able to claim a prescriptive action on their own property. While the servient tenant may be able to seek a termination of the easement due to a presumed abandonment of said easement (even that is difficult) I cannot see how one can claim a prescriptive right on their own property.
 

Mass_Shyster

Senior Member
gee, I think we have heard something like this before.
Yup. I was just casting my against self-help.


I disagree but won't stand too proud on that statement. If you could provide some support that this is possible would be really great. I, personally, have never heard of a person being able to claim a prescriptive action on their own property. While the servient tenant may be able to seek a termination of the easement due to a presumed abandonment of said easement (even that is difficult) I cannot see how one can claim a prescriptive right on their own property.
Honestly, I never heard of it before last night.


This is from Matoush v. Lovingood, 177 P. 3d 1262 - Colo: Supreme Court 2008 http://scholar.google.com/scholar_case?case=5457694698991142558
An easement is terminated by adverse possession upon a showing that use of the easement area was: (1) adverse to the easement holder's use of the easement; (2) open or notorious; and (3) continuous, without effective interruption, for the statutorily-mandated period of time for adverse possession. To be adverse, use of the easement area must be incompatible or irreconcilable with the easement holder's right to use the easement.
 
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