Landlock/Implicated Easement

Sweet Home said:

What is the name of your state? Alabama
Bought 22 acre farm 3 yrs ago. No visible or recorded easements & have clear title & insurance. It fronts a small county hwy. Elderly female neighbor lives across hwy on 92 acres. She also owns 20 acre parcel (parcel A) behind my farm. She prev owned another 20 acre parcel (parcel B) behind that, that fronts a small public road. She sold (parcel B) to her brother-in-law in 1969.
She & her adult children sued me for a prescriptive easement to get to (parcel A), but Circuit Ct Judge ruled against them because they had previous owner's permission (permissive use). Now they are sueing me claiming they are landlocked.
There is a large visible easement from the small public road across (parcel B), and we proved (by video & witnesses) they have used it to access (parcel A).
Although it isn't recorded on the deed of sale of (parcel B), I understand that an implicated easement was created and exists because you cannot landlock yourself, correct?
In 1970's the bro-in-law sold access of the easement to the Water Utility Board so they can access a Water Tower located on (parcel B). It is not exclusive. Also - a relative of the bro-in-law recently built a house on (parcel B) and uses same easement road for ingress/egress.
Since the Probate Judge is Plaintiff's nephew, he "unwillingly" recused himself - due to our persistence,... (we went thru this twice). The State appointed a local RE attny to hear the case as a Spec.Probate Judge. (She tries cases daily in front of the Prob.Judge - nephew.) CONFLICT!
She has ruled in favor of the plaintiff that they are landlocked, and have no "adequate & reasonable" access to their (parcel A) and has condemned our property so that they can cross from their residence across the Hwy & the middle of my pasture. Their one & only argument was "inconvenience" to their residence- that's all. It is 1.5 mi from their driveway to their easement road.
Because the easement road is not exclusive, (and is reasonable & adequate for both the Water Works Board, and the residence on parcel B) it would be reasonable & adequate for plaintiff. Also - "convenience" is only considered for the determining of the condemnation path - ONCE YOU PROVE YOU HAVE NO OTHER ACCESS, right? I also understand that "reasonable & adequate" relates to the access to a public road, NOT to the plaintiff's path to her residence, correct?
The County Commission is meeting in 2 weeks to determine my $$ damages.
The Prob.Judge (plaintiff's nephew) is also the Chairman of the Commission. - another huge conflict!
I have what most consider the best RE attorney - from the City. But - I feel like we are getting railroaded with this "small town mafia" in the local government. What can I do to get this case before a jury, and ensure that Probate Judge doesn't have any access to the jury pool? The Spec.Prob.Judge that was assigned total disregarded their current easement. Can I file complaint on her? There are many more details. Can I file complaint at State Attrny Gen office or Judicial Ethics?

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Sweet Home said:

Thanks for replying HG. I realize it may not be likely that I will get a result, but if I don't file a complaint, I am 100% sure nothing will be done. I would not expect the decision to be overturned - except by appeal.
My point would be to raise awareness, and to document. I have decided to do something - anything I can instead of lying here and letting the train run over me.
After appeal is over, I am preparing to become more involved in community & council affairs. I will do what responsible people do - educate myself and stay aware of what is happening, and work during the next election to gain public awareness of these injustices, and get these folks out of office. I know it won't be easy or quick. I figure if some of our ancestors gave their lives so that you and I have the right to own property, it is a very small sacrifice to stand up and defend it. My husband agrees.
Just like the war against terrorism - would you say that we will never be able to get rid of 100% of these radicals, so why try? Certainly not.

What about my other questions?
1 - By law, a person cannot landlock themselves, correct? I have been reading and I understand that an implicated easement is created whether it is recorded or not. I understand that this law was created so that adjacent parcels of common ownership prevents landlocking from occurring. Is this not correct?

**A: you are sort of correct. The law actually states that a property owner has a right not to be landlocked.
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2 - Also - "convenience" is only considered for the determining of the condemnation path - ONCE YOU PROVE YOU HAVE NO OTHER ACCESS, right?

**A: condemnation is not a part of this action unless government aquired land is involved.
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It is not part of the requirement of the existing easement road, correct?

**A: I don't know what you are talking about.
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3 - I also understand that "reasonable & adequate" relates to the access to a public road, NOT to the plaintiff's path to her residence, correct?

**A: no and I have no idea where you are getting your info from. You may be doing various internet searches and mixing up all the information.
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Everyone that is aware of this situation cannot believe that my neighbor is capable of taking my land because they want a shortcut. I suppose this is an example that ultimately, it doesn't matter if you depend on the courts to apply and uphold the law. It only matters who you are, and who you know, who you are related to, and who owes who a favor.

HG - I am curious. Do you specialize in RE law?


**A: read my profile.
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Also - I would like to hear Nexie's take on this, too.

Thanks in advance for your replies. Respectfully, Sweet Home Alabama.

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Sweet Home said:

HomeGuru -

1 - If an unfavorable decision is made by Probate about this landlocked issue, and we pursue the decision reversal in appellate court, does a jury or judge review the entire decision?
Or does the judge in appellate court review the actual decision, and then jury reviews the width of easement, and damages amount?
Is there ANY way we can get jury to hear and decide on ALL of it?

**A: I suggest you read the appellate court procedure.
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2- When we purchased our property, there were many gates because the property is fenced and cross-fenced. Through litigation, it has been determined that the neighbor seeking the easement purchased and installed 2 of these gates - when previous owner gave him "permissive use" years ago.
I understood that gates (as well as all other fencing and barns) were included in my purchase. (They are not mentioned specifically "gates" on my deed, but are not excluded either.) Does neighbor get to use these 2 gates to set up ingress/egress at the designated site that judge orders? or are they mine to do with as I wish?

3 - This one is a toughie: Owner of the "landlocked" parcel owns it by herself (and her children are inheriting upon her death.) Her name is only name on deed. She inherited the 2nd parcel blocking her from public road (along with other inlaws). Later, they sold this 2nd parcel to a nephew.
Because she was an owner of both parcels for some time (even though there are other names on the second deed) can I not argue the point that she created this landlocked situation herself?.... or at least failed to provide adequate (deeded) easement while she had opportunity?
Remember - There is a large easement across this parcel and is used by Water works board to get to water tower, and a newly built residence.
AND - we have landlocked neighbor on video & multiple testimonies confirm ing they have used it for years. Although unrecorded - specifically for them.
We have confirmed that is is a non-exclusive easement.

4- Any other advice or thoughts you have would be very much appreciated.

Sweet Home

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