Can Easement violate Covenant?

[TransPlanNH]

New Hampshire

OK, here's an odd one.

Two parcels (X and Y) deep in the woods used to front on an old road. Road was discontinued completely in 1908 (I have the paperwork). Eventually the two parcels came under unity of title. In 1955 onwners 'K' bought parcel X and owner V kept parcel Y.

Parcel X has the following deed language "Meaning and intending hereby to convey the above tract of land up to the Town Line, and in no case grantees to cross to the easterly side of the [old road]." If there was any ambiguity as to where the boundary lies, deed of parcel Y says "situated on the easterly side of the old road.." metes and bounds as "... on the easterly side of the [old road] which is the town line".

For the 50 years that K owned X he built a new road parrallel to the old road, built a pond and shed over the old road and impeded the succession of owners of parcel Y to use the road(s). Property Y fell into complete disuse, buildings rotted away, driveway has trees growing in it. Furthermore K got into a 20 year fight with the town to subdivide X, never succeding but leaving behind a massive amounts of legal files, letters, and surveys.

I bought property X from K 3 years ago. A multi-million dollar logging corp bought Y last year and tried to come down my private road. I turned them back and their lawyer sent me a nasty letter (he thought the new road was the old road and told me to prove it was discontinued, which I did).

Apart from the obvious lack of an easement over my new road, it appears that whatever easement existed from the old road was extinguished during unity in title. So the only possibility is an implied easement by necessity.

So my question is: Can an implied easement-by-necessity violate an explicit covenant not to cross from property X to Y? I believe there's both horizontal and vertical privity, and to top it off property Y would be the dominant state on both the restrictive covenant and the permissive easement. Wouldn't that mean that they could keep suing me for an easement, and then for violating the covenant, and so on?What is the name of your state? Can I be forced to give an easement to rights which I myself do not have?

Thank you in advance for any thoughts on this.

 

[154NH773]

You say that the driveway of Y is overgrown. Did that driveway exit from the old road? If the road was the Town boundary, was the centerline of the road the Town line? Who did the property revert to when the road was discontinued, did X and Y get the property in their respective Towns? Is there a clear description of the old road that could provide basis for a survey? Is there any other access for Y from any other road?

Sorry about all the questions, just trying to visualize the situation.

I have been fighting road and access issues in NH for about 5 years and have filed a Quiet Title action in Superior Court. I am acting as my own attorney (pro se) and have argued some of the issues up to the NH Supreme Court.

I would suggest that you document all you can, figure out the most plausible solution and if you can't get the other party to agree, then file for Quiet Title asking the court to impose that solution.