How is the word mean?

[mcheng]

What is the name of your state (only U.S. law)? New Hampshire
I find NH law (508.2) contains the following words:
"No action for the recovery of real estate shall be brought after 20 years from the time the right to recover first accrued to the party claiming it or to some persons under whom the party claims."
My understanding to these words sounds too simple: no body can bring a case to court to change a fact after 20 years the fact exist. If my understanding is right, such case should not appears in court document. It should be dismissed immediately by court clerk during petition. However, I saw several such cases even reached supreme court. Even though those petition finally got judged matching this rule, I am wandering why those petition not get dismissed earlier. Is my understanding wrong about this rule?
The reason I have this question is: I have a neighbor want to stop me to use the driveway on his land. The reason he claimed is original document only allow 3 users (including himself), but now 4 users are using it because my lot created by a subdivision 23 years ago, 9 years after the easement document issued by original owner, and my house is the newest, only 21 years. Others have age of 25 - 32 years, so he want me out.
I understand claim prescriptive easement is also OK, but ask court to dismiss his petition maybe is easier according this rule.
Is my understanding correct?

 

[justalayman]

you must support your claim, not just allege it. That is one reason this type of case continues on to an actual trial.

 

[154NH773]

The reason he claimed is original document only allow 3 users (including himself), but now 4 users are using it because my lot created by a subdivision 23 years ago, 9 years after the easement document issued by original owner, and my house is the newest, only 21 years.

As you've been told, you will have to support your position in court.
My questions are: Was your lot created from one of the original lots that was granted an easement? Do you have access from some other route? At the time of the easement grant, could your lot have been subdivided legally from it's original lot? In other words, did the zoning ordinance in effect at the time allow for the subdivision of the lot that created yours?
Just because you meet the criteria for a prescriptive easement, it doesn't necessarily mean the court will grant you one. There may be a chance that you already have an implied easement passed to you through the subdivision of your lot from a lot that already had an easement. There is some support in NH law that says that there is no additional burden on an easement if the possibility existed at the time of the original easement grant.
This is a legal question that depends on exact wording of the original easement, and may also be affected by NH caselaw. Have you talked to a lawyer? Interesting... I'd like you to follow-up on the outcome.

 

[mcheng]

Thank you both for comments.
All the lots involved subdivided from 1 lot in 1978. The original owner issued a easement as follows:
"I, ..., do hereby give a permanent easement, located on lot 2, to all owners of abutting lots No. 1 and No. 3 to enter and exit from their properties but not further than 300 ft. from the entrance."
The lot 1 and 3 was sold to a person in 1978, and lot 2 was sold in 1979.
In 1987, the owner of lot 1 subdivided lot 1 into 2, and my lot is lot 1-1. The subdivision plan proposed to relocate the existing to lot 1-2 to serve both lot 1-1 and 1-2, but never been constructed after approved in 1987.
My house was being built in 1987-1989. After passed 2 other owners, I purchased it 5 years ago. Now the owner of lot 2 complains the original easement only allows 3 users, now have 4 users and is over-burdened. The reason he challenged me is because my house is the newest. House on lot 1 was built in 1978 and lot 1-2 is in 1985. But my house was completed in 1989.
What I plan to defend is: 1, the original easement is for "all owners of lot 1 and lot 3", no limit on number. My lot completely located within the original lot 1. 2, claim prescriptive easement based on 20 years (1989-2009) or 22 years (1987-2009, this including construction, not sure reasonable, could some give comments?) factual usage. The reason I count on only 2009 is because he started to complain last year, so this year may not be accepted by court.
However, if RSA 508.2 is really in effects, I think the best way maybe asking court to dismiss the case, that will be intuitive.

 

[mcheng]

Hi 154NH773,
I missed one of your question: My house do not have any other drive way out.

 

[justalayman]

Thank you both for comments.
All the lots involved subdivided from 1 lot in 1978. The original owner issued a easement as follows:
"I, ..., do hereby give a permanent easement, located on lot 2, to all owners of abutting lots No. 1 and No. 3 to enter and exit from their properties but not further than 300 ft. from the entrance."
The lot 1 and 3 was sold to a person in 1978, and lot 2 was sold in 1979.
In 1987, the owner of lot 1 subdivided lot 1 into 2, and my lot is lot 1-1. The subdivision plan proposed to relocate the existing to lot 1-2 to serve both lot 1-1 and 1-2, but never been constructed after approved in 1987.
My house was being built in 1987-1989. After passed 2 other owners, I purchased it 5 years ago. Now the owner of lot 2 complains the original easement only allows 3 users, now have 4 users and is over-burdened. The reason he challenged me is because my house is the newest. House on lot 1 was built in 1978 and lot 1-2 is in 1985. But my house was completed in 1989.
What I plan to defend is: 1, the original easement is for "all owners of lot 1 and lot 3", no limit on number. My lot completely located within the original lot 1. 2, claim prescriptive easement based on 20 years (1989-2009) or 22 years (1987-2009, this including construction, not sure reasonable, could some give comments?) factual usage. The reason I count on only 2009 is because he started to complain last year, so this year may not be accepted by court.
However, if RSA 508.2 is really in effects, I think the best way maybe asking court to dismiss the case, that will be intuitive.

since the easement was granted for only 3 homes, splitting the lots and adding homes may or may not be seen as over burdening the easement. Depending on the circumstances, it can be a very valid defense.

Since you appear to have met the prescriptive easement period as well, that should be a winning argument regardless of the outcome of the argument of the granted easement. You should argue both.


Again, cases are not simply dismissed on your allegation of meeting the requirements. It is often required to proceed to court where you would support and substantiate your claim and the other party would have the opportunity to defend against your claim.

As long as the servient tenant wants to fight this, you most likely will end up actually in court.

 

[Viol8r]

since the easement was granted for only 3 homes, splitting the lots and adding homes may or may not be seen as over burdening the easement. Depending on the circumstances, it can be a very valid defense.

Since it states "lots" 1 and 3, should it not go by the particular plot of land instead of number of houses? One would think that even with lot 1 being sub-divided, the same area of land would fall under the easment...

 

[justalayman]

no. the intent at the time of the grant would be to provide access to a home on each of the lots. By subdividing, you are creating more lots and more homes. In some cases, such as if the easement was to provide access to a large area that would reasonably be seen as likely to be subdivided, one could argue that the easement was intended for access to all subsequent tenants of all the possible lots. In a situation where one would not expect the lots to be subdivided, any additional homes accessed by the easement would be seen as overburdening the easement as it was intended.

One thing that must be understood is with easements; If there is nothing explicitly written into the grant, it is the grantors intent that is important when determining the use of the easement. If the original creator of the easement did not consider the possibility of additional homes that would need the easement, then it could be reasonable to limit its' use to the original homes on the easement.

so, depending on the totality of the facts of the situation, it could easily be seen as any additional homes would be over burdening of the easement and as such, not allowed.

The problem with the servient tenant is the use has been allowed for so long that attempting to limit its' use now will likely be a losing position. He has allowed the newer houses to be built without objection and he has allowed the use of the easement for access for many many years. He will quite likely lose if this goes to court.

I am surprised a bank even loaned money for the purchase of the house without written documentation of the right to use the easement. Many won't.

 

[154NH773]

Justalayman has given you the best answer, however, I believe there is precedent in NH caselaw for expanding the use of an easement to accommodate access to additional properties.

One thing that must be understood is with easements; If there is nothing explicitly written into the grant, it is the grantors intent that is important when determining the use of the easement. If the original creator of the easement did not consider the possibility of additional homes that would need the easement, then it could be reasonable to limit its' use to the original homes on the easement.

The key here is whether the original intent can be determined, and what was possible at the time. If a subdivision of Lot 1 was possible at the time of the easement grant, then it may be assumed that the grantee knew that, and was therefore granting access to Lot 1-1 even though it didn't exist at the time.
Your best approach is the prescriptive easement, but I believe you should use all available claims if it goes to court (the kitchen sink approach).

 

[mcheng]

Justalayman has given you the best answer, however, I believe there is precedent in NH caselaw for expanding the use of an easement to accommodate access to additional properties.

I find some cases in supreme court similar, but not exactly the same. I wander if the case in other state can be quoted? I find a case in VA is almost exactly the same and court have given very clear opinion which will favor my defense.

If you know a case in NH close to my situation, I will really appreciate it.

 

[154NH773]

You might look at: Heartz v. City of Concord 808 A.2d 76 (2002), a NH case.

The case allowed a third party to use a right of way because it didn't change the historical use. There was wording relied upon by the court that allowed "any and all use," which may not be present in your situation.
The bottom line is that the court will make the final decision.

 

[154NH773]

do hereby give a permanent easement, located on lot 2, to all owners of abutting lots No. 1 and No. 3 to enter and exit from their properties

The case might be made that you are now an owner of part of lot #1, and there is no specific wording precluding you from using the easement. As it states in Heartz, the use was possible (foreseeable) at the time of the easement grant, and therefore not a change in the historical use.

 

[mcheng]

You might look at: Heartz v. City of Concord 808 A.2d 76 (2002), a NH case.

QUOTE]

Thank you. This is probably closest case in NH.
I wander is it is allowed to quote case in other states? I noticed some state, like AL, the suprement court sometimes quote case like CA or MA in their decision, but I did not see that in NH court opinion.

 

[154NH773]

is it is allowed to quote case in other states?

I was told by a NH judge that quoting a Federal case had no value in his court, but quoting out-of-state cases is done all the time when there are no applicable local cases and the attempt is to create new precedent based on what other states have decided.
I would use any and all arguments; they don't have to follow them, but they certainly help them consider what others have decided.
NH decisions are full of quotes from other states.

 

[154NH773]

I understand claim prescriptive easement is also OK, but ask court to dismiss his petition maybe is easier according this rule.

If your neighbor has already filed a petition, you have specific things you must do to answer, or the court may find for him in default.
I would advise getting a lawyer immediately. With all due respect, from your written statements and misspellings on this forum, you may have difficulty filing the proper answers and counter claims. Although you have a good grasp of the basics, you will need a lawyer or risk losing without one. Good luck.