Idaho Easement Question

[fredfurter]

My home has part of its driveway on the land of the house (zoned for offices) next to mine. There is clearly defined curb of where my driveway starts and ends; and a yellow line marking the curb/easement. My house was built in 1943 and this implied driveway easement has been in continuous use for much more than 5 years. There is a large, old tree planted at the end of my driveway and partially blocks my official property access (over time is has grown and the roots erupted through the driveway on my side of the property line). If I was to drive over the roots of this tree on a regular basis to access my home and garage, it would definitely kill a beautiful healthy tree on my property.

I have read through some info on Idaho easement law and it seems to me that a Prescriptive Easement and a Necessity Easement might be applicable here.

My question is: What do I need to do to formalize the implied easement? Do I need to file in court to formalize the easement? The business property next to me is currently unoccupied and for sale. I plan to continue to use the part of the driveway on their land (as a implied Prescriptive Easement exists). I want to make sure to protect my use easement to my home and protect the tree on my property.

Thanks in advance for your help.

 

[justalayman]

prescriptive easements and implied easements are two different things.


a prescriptive easement is where a person uses another land without their permission (adverse)

an implied easement an easement is implied by what would be the servient tenant by their actions. an example would be if you purchased a lot that is otherwise landlocked but there is a drive across the sellers land adjacent to the lot you are purchasing. Nothing is mentioned regarding access and there is nothing recorded providing an easement. The easement is implied as that is the obvious means to access the landlocked lot.

There is a large, old tree planted at the end of my driveway and partially blocks my official property access (over time is has grown and the roots erupted through the driveway on my side of the property line). If I was to drive over the roots of this tree on a regular basis to access my home and garage, it would definitely kill a beautiful healthy tree on my property.

is the tree on your property or the neighboring property? Are the roots you are concerned with on your property or within the area you are addressing as the easement?




have you verified there is not actually a recorded easement regarding this issue?

have you ever received communication from the owner of the property regarding you driving on their property?

in your case I do not see how an easement of necessity would be applicable. You can access your land without entering the neighboring property if you removed the tree or roots or whatever is blocking you. A tree cannot be the basis for the need for an easement of necessity.

but it would appear you may have a claim of a prescriptive easement.

to have it confirmed and recorded as a true easement, you would have to file suit seeking a declarative order from the court acknowledging the validity of the easement claimed. The owner of the property would have an opportunity to dispute your claim.

 

[fredfurter]

Thanks for the response and clarifying the easements.

The tree is on my property and its roots run under the part of the driveway on my land. There are no surface roots on the driveway that is on the neighboring property, but I'm sure the roots run under the neighboring part as well. If was to use my "official" driveway entry, it would kill the tree and I would need a 4x4 vehicle to go over them; and to completely remove them, I would have to tear up the easement pavement.

The easement is about 6 foot wide directly to the right of the tree roots. I drive to the right of the tree roots and inside of the yellow painted curb. One thing I failed to mention previous is, I also park my car in the easement on a regular basis.

I have not received any communication about my use of their property, I would just like to be preemptive so if it is sold, I protect my easement.

I have not verified an that a recorded easement exists... silly question time: Where would I go to find that out?

And, to complicate matters, I don't have a huge amount of money spend on retaining a lawyer. In your opinion, can some of this be done Pro Se?

 

[justalayman]

.

If was to use my "official" driveway entry, it would kill the tree and I would need a 4x4 vehicle to go over them;

but since it is your tree, that is your problem to contend with.

and to completely remove them, I would have to tear up the easement pavement.

so you remove them up to the claimed easement (it isn't one until recognized as one by the court). you don't get to argue your tree is what is causing the need for an easement across another's land but realistically,that is irrelevant in your situation. If you have a claim for a prescriptive easement, it really doesn't matter why the use of the neighboring property arose.

.

I have not verified an that a recorded easement exists... silly question time: Where would I go to find that out?

could be any of several places. The first place I always suggest looking is in the deeds for your property. Then, any planning/plat maps held by the municipality involved.

And, to complicate matters, I don't have a huge amount of money spend on retaining a lawyer. In your opinion, can some of this be done Pro Se?

maybe but if the neighbor hires one, it puts you at a real disadvantage. Much can be done pro se but understand there is a reason we still have lawyers. They are actually trained for the purpose. You will also likely have to put in a considerable amount of research to support your claim, especially if rebutted by the neighbor. You will also have to study procedural rules. It would be a good idea to research to learn how to write proper filings for the court too. Sometimes something as simple as an improperly written filing can cause it to be tossed out.