Who Mows Easement

[rosetattoo]

What is the name of your state (only U.S. law)? Indiana
What is the name of your state (only U.S. law)? Indiana
I have a 20 foot easement for a driveway that crosses my neighbor's property. The easement document states that the easement is 20 feet, for ingress and egress and that I am responsible for maintaining the driveway. The driveway is approximately 10 foot wide with grass on either side. My neighbor created the easement for me to replace a previous easement that went through another part of his property, past his pole barn. Since the easement was created, the owner of the property has been renting the house out to tenants, none of whom knew about nor cared about the easement. Because none of the tenants ever mowed the grass on the lawn/house side of the easement, I just mowed the ten foot swath on the other side of the driveway that abutted a third neighbor's property. I have been mowing this way for 7 years. New people moved into the house a year ago and, because they never mowed the yard and there was trash all over it, I just assumed they were tenants like the rest of the people who had lived there. However...these people had purchased the property. They let me mow all last year and only recently did I find out...not from them...that the property had been sold. My easement document says that the 20 foot driveway easement is for my ingress and egress. It also states that I am to "assume all responsibility for the maintenance and repair fo the driveway." Because of this, I have always assumed I was responsible for mowing as well as maintaining the gravel. I sent the new owners a note telling them why I have been mowing only the one side and suggesting that we continue in this manner so that I don't encroach upon their house lawn. I received a reply telling me that the document says that the easement is for ingress and egress only, so I do not have any other rights to the easement and that I am responsible for maintaining the driveway portion of the easement ONLY and that if I contact them again regarding "this issue," they will be forced to "play the card" of "contacting a lawyer." I am not sure as to what purpose....suing me for offering to mow? Harassment with a note? Anyway, while I am not at all intimidated by their threat, I am concerned about the foot or more of weeds on either side of my driveway and who, indeed, is responsible for mowing those two five foot swaths that are part of my easement. If I am only allowed to drive in and out on the driveway, why is the easement 20 feet? Can I extend the gravel five more feet on either side to cover the entire easement? Can I spray weed killer on either side of the driveway, or only in the middle of the gravel part? The county fines people who allow their grass to grow over 6 inches tall. It's a foot out there right now! If it is indeed NOT my problem but theirs, I will watch my neighbor struggle with his little push mower with a big smile on my face as they have been quite nasty to me. If it is my responsibility, I want to mow before I get fined. Plus...it's really ugly!

 

[154NH773]

Not your responsibility; from my point of view.

 

[bdancer]

I'd keep that document threatening to sick a lawyer on you if you kept mowing.

It would also be a real shame if "someone" complained to the county about that ugly foot high grass.

THEN, you could sit back and smile as your new neighbor struggled with his little push mower. You could even smile and wave as you ingress and egress on the driveway easement. I'm sure you would have to make several trips somewhere when he's mowing ....

 

[justalayman]

http://scholar.google.com/scholar_case?case=11259451694740958858&q=easement+maintenance&hl=en&as_sdt=4,15

The law is well settled in the area of the determination of the correlative rights of dominant and servient owners of easements. "In the absence of an agreement to the contrary, the owner of a servient estate may use his property in any manner and for any purpose consistent with the enjoyment of the easement, and the owner of the dominant estate cannot interfere with the use. * * * All rights necessarily incident to the enjoyment of the easement are possessed by the owner of the dominant estate, and it is the duty of the servient owner to permit the dominant owner to enjoy his easement without interference." 11 I.L.E. Easements § 31 (1958). The owner of the servient estate may not so use his land as to obstruct the easement or interfere with the enjoyment thereof by the owner of the dominant estate. Ill. Pipe Line Co. v. Ind. St. Rl. Elect. Mb'sp Corp., (1940) 107 Ind. App. 372, 24 N.E.2d 805. See also, Buckeye Pipe Line Company v. Keating, (7th Cir.1956) 229 F.2d 795.


If, at the time of the grant of an easement, the condition of the place where the right is to be exercised is unfit for the purposes thereof, the grantee may make such alterations as will render the grant effectual, and, after such grant of an easement, it is the right of the owner of the easement to do whatever is reasonably necessary to effect the enjoyment of the easement. Mercurio v. Hall, (1924) 81 Ind. App. 554, 144 N.E. 248.

if it is not required to mow the land to enjoy the easement as you intend, I would argue that you do not have the right to mow. If plants encroach on the "driveway", then you would have all rights to maintain those plants. I know with my drive the plants on the side grow and lean into the drive. If you have that sort of issue, you would have the right to cut those weeds. I would argue that mowing a strip adjacent to the actual driveway would be allowable under your right to maintain the area such that you have full enjoyment of your easement.

. It also states that I am to "assume all responsibility for the maintenance and repair fo the driveway."

I think you have an issue with the term driveway. Driveway and easement may or may not be synonymous. It will be based on the intent of the original grantor. I would argue that a driveway is the actively used portion of the easement though.

If I am only allowed to drive in and out on the driveway, why is the easement 20 feet?

because that is the stated intent of the easement and that is what is important.

Can I extend the gravel five more feet on either side to cover the entire easement?

well, yes, you can.

If it is my responsibility, I want to mow before I get fined. Plus...it's really ugly!

the local authority most likely has no idea you have a legal easement on that property. They know who owns it based on what they have in their tax records so any citations will go to the registered taxpayer. That's the servient tenant.

 

[rosetattoo]

I'd keep that document threatening to sick a lawyer on you if you kept mowing.

It would also be a real shame if "someone" complained to the county about that ugly foot high grass.

THEN, you could sit back and smile as your new neighbor struggled with his little push mower. You could even smile and wave as you ingress and egress on the driveway easement. I'm sure you would have to make several trips somewhere when he's mowing ....

Actually, they threatened to sic a lawyer on me if I contacted them again "about this issue." I have no idea what they would do if I just went out and mowed the easement. I suspect the sheriff would be knocking on my door. Although, if that happened, the sheriff would see the tall grass so maybe it would be a win win for me. The county was informed yesterday evening of the grass violation via a friend of mine who happens to be a county commissioner. It's all so stupid, especially since the hostility goes back 11 years to when I bought the house. The family who owns the land the easement is on is related to the family who owns other adjoining property and who is closely related to the person who sold me this house. No one wanted him to sell the house because they sold or gave him the land it's on with the promise he would never move...then....surprise....he moved and subsequently they have all, including the man who sold me the house, been hostile ever since.
At some point in the near future I will have to contact a lawyer to explain to me exactly what the easement document says about my rights and responsibilities. If I am supposed to mow, I will mow and they can react accordingly. If not, then they will be reported to the county every time the grass gets a foot high.

 

[rosetattoo]

Thanks for your comments. This is what I know: There was a "20 foot driveway easement" that was "conveyed, granted, devised and quitclaimed" to me by the former owners of the property for "ingress and egress." This document "runs with the land" and is for me, my "successors and assigns." The document also states that myself, my successors and assigns have assumed "all responsibility for the maintenance and repair of the driveway."
The people who own the property are telling me that I can ONLY drive across the graveled driveway and have "no other rights to the easement." They are also telling me that because the easement document says "all responsibility for the maintenance and repair of the driveway," this doesn't include the rest of the easement, ONLY the driveway....so they appear to be the ones who are hung up on the term, driveway. The entire easement is a 20 foot wide swath that goes in a straight line from the road to my property. The driveway part of it is graveled and 10 foot wide. There is five foot of grass on either side of the driveway that is the rest of the easement. I realize that they own the property, I can only drive on it and not park or store, plant or build anything there. I know I am responsible for keeping the driveway graveled and repaired.
What I don't know..... and perhaps someone has answered this and I am being obtuse (if so, I apologize).....is what rights and responsibilities I have to that five foot swath of easement on either side of the graveled driveway. I understand that I am being told on this forum that I have the right to widen the graveled part, provided I stay within the 20 foot as stated for the easement. The property owners have threatened me with litigation if I contact them again regarding the issue. They are extremely hostile (although not physically) so there is no point in attempting to talk to them further. They do not mow their yard and subsequently, the weeds encroach onto the gravel and while I realize I can go out with weed killer and kill the weeds that are in the gravel, what I don't know is if I can spray or mow the five feet of easement on either side of the driveway. What I don't know is if, should I choose to, I can drive my car along the grass part of the easement, provided I don't go beyond the 20 feet as stated in the easement. The papers are quite clear on where exactly the easement is with precise descriptions (12 degrees 45 minutes west a distance of 521.83 feet...) It also includes utilities for the easement. So I guess what I keep asking is if the entire easement is mine to maintain or is it just the graveled part? I think it is the entire 20 feet and they say just the graveled part. I don't care who mows it, provided it gets mowed. If they don't mow it, I want to be within my rights to go out and mow it, weed it etc.

 

[justalayman]

The people who own the property are telling me that I can ONLY drive across the graveled driveway and have "no other rights to the easement."

rights; correct.

Responsibilities; a very different thing and there are responsibilities that go along with being a dominant tenant of an easement.

The document also states that myself, my successors and assigns have assumed "all responsibility for the maintenance and repair of the driveway."

yep, there's some of those responsibilities right there. Now that responsibility also affords you rights to perform those responsibilities as well.

" this doesn't include the rest of the easement, ONLY the driveway....so they appear to be the ones who are hung up on the term, driveway.

I suggest they are correct though. Generally the liability for maintenance falls to the dominant tenant but the responsibility for maintenance of an easement remains with the servient tenant. That means; they do the work or hire it; you pay for it.

Now, in your situation, the maintenance responsibility of the driveway has been transferred to you via the grant. A driveway is not all the land that surrounds it but the portion of the land being maintained for the purposes of driving on. Think of it in a different situation. While I own some acreage, my driveway consists of an area 20 feet wide and 900 feet long. So, if I am going to maintain the drive, would that include all my acreage outside of the driveway? Of course not so by the plain language definition of driveway, your responsibility is to maintain the driveway itself while the servient tenants responsibility is to maintain the easement outside of the driveway.

and remember, while you have an easement, they still own the actual land the easement crosses. So, if you are not utilizing a portion of the easement for purposes granted to you, they have a right to do whatever they wish to that area.

It's a shame you are having such problems and if you want to put them to rest, file a suit with the court seeking declaratory relief. Let the court give you the answers to your questions. Otherwise I would suggest fixing the actual driveway as needed and let the servient tenants take care of the grass outside of the actual driveway.

What I don't know..... and perhaps someone has answered this and I am being obtuse (if so, I apologize).....is what rights and responsibilities I have to that five foot swath of easement on either side of the graveled driveway.

you have the right to use it for the purposes stated in the granting document and nothing else. That means you can turn the entire width into a driveway but if you do not, then you have no rights to do control anything regarding the unused portion.

I understand that I am being told on this forum that I have the right to widen the graveled part, provided I stay within the 20 foot as stated for the easement.

yes, you do.

The property owners have threatened me with litigation if I contact them again regarding the issue.

so don't contact them.

They do not mow their yard and subsequently, the weeds encroach onto the gravel and while I realize I can go out with weed killer and kill the weeds that are in the gravel, what I don't know is if I can spray or mow the five feet of easement on either side of the driveway.

not if you are not using the 5 feet on either side as a drive, no, you don't.

What I don't know is if, should I choose to, I can drive my car along the grass part of the easement, provided I don't go beyond the 20 feet as stated in the easement

.yes you can

So I guess what I keep asking is if the entire easement is mine to maintain or is it just the graveled part?

my interpretation is that you have the responsibility and right to maintain only the actual driveway portion of the easement you own.

I think it is the entire 20 feet and they say just the graveled part.

I believe you are incorrect.

I don't care who mows it, provided it gets mowed. If they don't mow it, I want to be within my rights to go out and mow it, weed it etc.

I do not believe you have a right to mow it nor do you have a right to demand they mow it. Unused portions of the easement remain their land and if you do not use them for the purposes allowed, then the servient tenant can use the land as they desire, including letting it look like a hay field.

 

[rosetattoo]

Thank you for your response. I have a friend who works for a lawyer who does real estate law, among other things, and she will check on all of this. Your comments make it clearer for me and I think I understand the situation better. I will have to see about widening the driveway. I have utility trucks that come down it (propane, septic, etc.) and it would make it much easier for them if the driveway were a bit wider. Also, while I may not be able to mow the easement myself, my neighbors will not be allowed by the county to let their yard turn into a hayfield.

 

[justalayman]

I would appreciate it if you would return with any advice given by the lawyer friend. As advertised, I am justalayman and support of or rebuttal of my statements is always welcome as a means to improve my knowledge base.

 

[154NH773]

I agree with all that justalayman said except;

So, if you are not utilizing a portion of the easement for purposes granted to you, they have a right to do whatever they wish to that area.

They can't do anything to the unused portion that would prevent you from utilizing it or making improvements that might be necessary in the future.

Let's say; you might need to get a tractor trailer in, and have to widen the "driveway" or transit the grass area. The servient tenant cannot have put a concrete barrier on that portion not presently used by you. Your access across the entire 20 feet cannot be blocked, even if you currently don't use it.

 

[rosetattoo]

I can't tell you how much I appreciate all of you taking the time to respond to me. By the time this is sorted out, I will probably be an expert myself. I will be happy to pass along whatever information my friend's lawyer boss comes back with. It's difficult to put emotion aside in favor of patience and facts. I had no real inclination to contact my neighbors again after the mowing note until they told me not to, and then I had an almost overwhelming urge to write a diatribe to them about their attitude. I didn't do it, of course, but had a very sleepless night and kept telling myself that they cannot take away my access to the road and that's the important part.
So, I can spray the weeds that are turning my gravel driveway into a hay field and I can add gravel to my driveway to widen it provided I stay within my 20 feet. I added gravel this spring but looks like it needs some more. I can also call the county commissioner every time they neglect to mow their lawn.
One final question....there are brittle locust trees that line the driveway. They seem to lose limbs every time we have wind or storms. If a big limb falls from their tree onto my driveway, who is responsible for removing it? We have a chainsaw. They do not. If they were nice to me, I would remove it myself regardless of who's responsibility it was. However, if it is their responsibility, I am petty enough to enjoy standing and watching while they haul the limb off the driveway, preferably in the pouring rain.

 

[Zigner]

I can't tell you how much I appreciate all of you taking the time to respond to me. By the time this is sorted out, I will probably be an expert myself. I will be happy to pass along whatever information my friend's lawyer boss comes back with. It's difficult to put emotion aside in favor of patience and facts. I had no real inclination to contact my neighbors again after the mowing note until they told me not to, and then I had an almost overwhelming urge to write a diatribe to them about their attitude. I didn't do it, of course, but had a very sleepless night and kept telling myself that they cannot take away my access to the road and that's the important part.
So, I can spray the weeds that are turning my gravel driveway into a hay field and I can add gravel to my driveway to widen it provided I stay within my 20 feet. I added gravel this spring but looks like it needs some more. I can also call the county commissioner every time they neglect to mow their lawn.
One final question....there are brittle locust trees that line the driveway. They seem to lose limbs every time we have wind or storms. If a big limb falls from their tree onto my driveway, who is responsible for removing it? We have a chainsaw. They do not. If they were nice to me, I would remove it myself regardless of who's responsibility it was. However, if it is their responsibility, I am petty enough to enjoy standing and watching while they haul the limb off the driveway, preferably in the pouring rain.

It's on you to remove the limb if an act of God knocks it down.

 

[justalayman]

They can't do anything to the unused portion that would prevent you from utilizing it or making improvements that might be necessary in the future.

actually, they can but when the dominant tenant wishes to exercise their rights to use that section of the easement, the servient tenant is responsible to remedy the encroachment.




and if you doubt me; think about a utility easement. Do you really think the servient tenant can't use their land under power lines as they wish as long as they do not inhibit the power company's use according to their rights?

 

[justalayman]

. If a big limb falls from their tree onto my driveway, who is responsible for removing it? .

You answered this yourself previously:

"all responsibility for the maintenance and repair of the driveway."

removing a limb that is on the drive is maintenance.

 

[rosetattoo]

Well, they muddied the waters for me with the grass issue so I wasn't sure. So...I can remove it from the gravel driveway and shove it over to the grass easement part and they will have to remove it? JUST KIDDING! Doesn't matter. I would probably wait till hell froze over before they would remove the limb anyway as they are lazy so it's probably good that it's my responsibility. After obsessing about this for about a week, I think I can finally let it go and wait to see what my friend's lawyer boss says and perhaps make an appointment with him. Later this summer I will have more gravel put down on the easement part of the driveway. It didn't get as much as my own property did this spring so needs it. I'm not particularly worried about them utilizing the driveway themselves for anything. They have their own driveway, rarely leave their porch and can't be bothered to pick up their trash or mow so I can't see them having the motivation to obstruct the driveway unless it becomes obstructed by the trash they don't pick up.
Thanks again all!