Driveway Easement / Power Lines

[jman42]

New Jersey

Sorry for the length of this post!!!

I live on a 2 acre piece of property carved off of the neighbor's 20 acres back in 1959. There is a shared driveway. Due to a dispute, they want to fence off the shared driveway and have me build a new driveway.

Bordering their driveway are about 10 boundary pine trees (planted on their property by original owners, but trunks now straddle the property line). Originally, they said they would take them down since building a driveway will cause major damage to these shallow-rooted trees. Now they are saying they plan on leaving the trees.

Additionally, there is a power line that runs from the street, to a pole on my property and then to both my house and a cottage in the back. That pole needs to be moved (I'm going from the street directly to my house soon). To the best of my knowledge, this is a privately owned pole put in by the original owners.

My questions:
1. While I'd prefer to just build my own driveway and be done with these people, I worry about causing harm to their trees and ending up being liable. How hard is it to obtain an easement for use of the driveway? Remember that my property was carved out of their property 50 years ago and has had constant use of the driveway including payment for paving (both homes had previous owners then)??? Also, on our property survey from the town, it says 50' right of way along the shared part of the driveway. Does that mean that I already have some sort of legal rights? Or is that just for the town?

2. The power company is planning on relocating the pole farther down the property line. Personally, I'd like to not allow access over my property, but the power company rep says they have a legal right of way to access the cottage. There is another pole along the street on the other side of my neighbor's house that could allow access, so I wouldn't be preventing the cottage from having power. I see nothing about any easements for these lines in my deed, etc. Do I have to allow this access or can I force them to relocate the power to the other side of their property?

 

[jman42]

Would both of these uses be examples of prescriptive easements?

 

[drewguy]

If there has been 50 years of use and the driveway was "carved out" from the property when your piece was sold to you there's likely a prescriptive easement, or one could be obtained if litigated. But if there's something on your deed, it may in fact be a recorded easement.

If it is recorded, then you have no obligation to give it up. Translation: Ask them to pay you to give it up. If it is prescriptive easement that has not been established by court ruling, do you really want to pursue that?

Also, if you want your own driveway anyway and there are no obstacles, why not build it? What are you looking to get from the neighbors? If the trees are an issue, why not get them to sign a letter waiving any claims for damage to the trees as a result of your building the driveway? Seems like a fair resolution of whatever dispute you have--you build your own driveway; they agree not to complain or sue for damage to the trees. Promise you'll use best efforts not to damage them, but nothing more.

As for the power poles, this depends on state law. The power company may have an easement to run lines to other houses across your property. But they should be able to demonstrate that. In my case, the only easement they power company generally has is one you have to grant as a condition to obtain power. So when they had mistakenly strung my neighbor's line across my property as well, they quickly came to correct what they conceded was an error. But local/state laws vary on this, so that's not terribly relevant to your situation. I would push the power company to relocate the drop for your neighbor. Maybe even include that as a condition regarding the driveway--i.e., they will work with power company to redo the drop.

 

[jman42]

Drewguy - thanks for the quick response.

A waiver is one thing we are considering - hopefully my wife will have spoken with them by the time I get home. Originally, they had agreed to cut these trees down (as I have already cut down a second row that was on my property) and move the pole in order for us to build the driveway (they are the ones that want to put a fence up).

They have been balking now regarding trees and pole. I'm going to guess they won't want to sign a waiver releasing us from liability if we damage the trees (the driveway would be built to within 3 feet of the trunks and will cause significant loss of roots). At that point, I think we'll pursue the easement, even though both parties would prefer a separate driveway.

I have a call in with my power company contact regarding proof of easement - haven't heard back from her yet.

We are trying to be diplomatic about this which is why we haven't gotten lawyers or gone to court for easements - yet.

 

[drewguy]

Kind of amazing how obtuse people are. They want you to stop using a driveway you've been using (or predecessors in interest) for 50 years, and are unwilling to accommodate any of your concerns? Unreal. I'd just tell them the same thing again and again--"I'm willing to do it, but you have to meet me part way by giving me a waiver and moving the power pole; otherwise I'll continue to use the driveway to which I have a right to use. It's such a waste for us to have to go to court or hire lawyers to resolve something like this when there's an easy solution that benefits us both."

 

[nanomug]

Is there no legal document or recorded easement stating the usage of the common driveway or access to your home?

Usually there are documents somewhere and usually required for landlocked parcels for access.

How long have you lived there?

When its all said and done I'd give the option of continued sharing of the driveway or responsibility for the trees if they fall over after the new driveway is built. Being nice I would offer to let them pay a portion of the driveway construction along with the extra costs involved in the future when their trees damage your driveway.

 

[jman42]

I started typing a whole synopsis of the story (basically their dog has bit my child twice), but it isn't overly pertinent other than it would show that we've tried to act in good faith, while they haven't.

My wife and I have owned the house for 14 years, but I have lived in the house for 33 years as it was my parent's house prior. Have used the driveway continuously. Our property is not landlocked, but the driveway was built off the pre-existing driveway that accesses the original cottage back in the woods behind my house. The survey shows a 50 foot right of way which I would think gives me legal access to use the driveway.

I would think it would be easy to prove in court, but I'd rather it not come to that. On the other hand, the ball is in their court now - until they remove the trees or give me written permission to cut roots and get the pole moved to their property...or start building a fence anyway, we are going to continue to use the driveway and do nothing. We will go to court to force the prescriptive easement around August if things stay status quo.

 

[jman42]

Follow-up Question

OK. So my wife and I decided that we're not going to build a driveway unless the neighbors take down the trees and get the power pole moved as they originally promised. So we'll most likely end up in court pursuing either a prescriptive easement or a implied easement (I'm thinking implied since the driveway has been "shared" since the day my property was carved out of the neighbor's tract 50 years ago.

My question: should we go to court right away and force this easement now or wait until they try to build a fence across my section of the driveway and then go through the hassle of calling the police, getting a hold put on the fence and then going to court?

What I don't want is for this to blow over and then have to wait for him to try to threaten me with fencing off my driveway again sometime down the road...or have this be a headache when selling the house.

 

[blocked]

The police will not help you stop the fence from being built. It will be called a civil issue. Only a judge can stop it with an injunction. if the fence is built a judge may make you post a bond to reinstall it (if decided to remove) it before the case is decided.