neighbor planting grass and placing boulders on the road on which we both have a Right of Way

[Lily2468]

What is the name of your state? New Hampshire. My neighbor owns property on which three houses, including mine, have a 40 ft wide deeded right of way leading to public road. There are trees which have grown over 15 ft of the right of way and the other two neighbors (who are relatives) with the same 40 ft wide deeded right of way have grown grass and placed boulders over about 8 ft of the road (right of way) thereby extending their property to include the 8 ft of the right of way on which they have grown the grass. The police have said I cannot drive over the grass they planted reducing my right of way by the 8 feet.They also removed the surveyor's boundary marker and dug up almost a foot of my land between our houses extending about 100 feet (nothing to do with the right of way.) The land owner has called these two property owner's (with the right of way on his property) and told them not to grow grass on the right of way and to have a surveyor replace the boundary marker. He gave them written notice not to park cars, or place anything on his road (on which they have the deeded right of way.)

I called the police and they are saying the land owner will have to take them to court and I cannot drive over the grass or move the boulders which are dangerous to have on the road. The police would not even tell them to replace the grass they dug up on my land. The owner of the road on which we have the right of way only has rental property on his land and he never uses the right of way so I doubt he will want to pay the legal fees to take them to court. I am considering asking the land owner if I can purchase the right of way. Does this make sense?

 

[justalayman]

Your rights are to use the land as the easement allows. Generslly, as long as your use is not restricted, whether you have full use of the entire width isn’t going to make a court make the servient tenant (the guy that actually owns the property) move things


You have an arguable legal right to remove the boulders and drive in the grass but realistically, if the servient tenant does nothing about it, should you drive on the grsss, you could end up being charged with a crime. It isn’t worth it

Unless the servient tenant follows through with his demands, I suspect it will be a costly action with little to gain

You do have the right to sue if your easement is blocked. You can list th the servient tenant as a party under the basis that he has allowed others to obstruct your easement and you can list the actusl obstructing party due to their actions. As I said, it probably won’t be worth the cost


As to the trees: if they block the right of way, it’s your right to have them removed, at your cost of course unless the easement grant designates some specific party other than you as liable to maintain the easement.

 

[HRZ]

So long as there is a reasonable width passageway I don't think it's a war worth starting .

Tenchically I would agree you have right to use any portion of the 40' and demand the servient owner remove obstacles they placed etc but I'm again not sure it's a fight worth starting . I doubt the police have true power to stop you from driving on any portion of the private easement where you have a deeded right to do so. ...You probably have a right / duty to maintain the easement ...including removing new trees and rocks which block it....but I'd not start unnecessary wars.

HOWEVER I most certainly would go out from time to time and walk the full width and full lengt of the easement and video same and keep good dated records of same ...just in case some idiot down the years seeks to claim you abandoned the easement by non use .and they get a bigger yard by default..

I disagree that it's a crime to drive on grass planted in easement where you hold deeded passage or use rights and you may have legal right to clear trees if they actually block passage .

I'd be worrried about fire truck access if there are too many trees and boulders ...and local codes might specify minimum clear passage widths for private roads .
14' around me but I'm not in NH . ...and even 14 ' is up for debate if it's unsafe for heavy fire equipment. Go visit local fire chief in person?

 

[justalayman]

So long as there is a reasonable width passageway I don't think it's a war worth starting .

Tenchically I would agree you have right to use any portion of the 40' and demand the servient owner remove obstacles they placed etc but I'm again not sure it's a fight worth starting . I doubt the police have true power to stop you from driving on any portion of the private easement where you have a deeded right to do so. ...You probably have a right / duty to maintain the easement ...including removing new trees and rocks which block it....but I'd not start unnecessary wars.

HOWEVER I most certainly would go out from time to time and walk the full width and full lengt of the easement and video same and keep good dated records of same ...just in case some idiot down the years seeks to claim you abandoned the easement by non use .and they get a bigger yard by default..

I disagree that it's a crime to drive on grass planted in easement where you hold deeded passage or use rights and you may have legal right to clear trees if they actually block passage .

I'd be worrried about fire truck access if there are too many trees and boulders ...and local codes might specify minimum clear passage widths for private roads .
14' around me but I'm not in NH . ...and even 14 ' is up for debate if it's unsafe for heavy fire equipment. Go visit local fire chief in person?

Damaging others grass can be treated as a crime, even if it is on land such as is being discussed. Bigger than that though is the cop has already advised the op to not drive on it.. it sounds like whether right or wrong, if the op drives on the area in question, the op,will have to answer to that cop. It isn’t worth testing the cop

One example

On this forum, there was s poster where the neighbor extended their fence and attached it to the house or possibly a fence post owned by and on the ops land. Op removed the attachment. Care to guess who was charged with destruction of property for removing the neighbors fence on the ops own property? I don’t know the outcome but I suggest op not act in contrast to,what the cop advised. It isn’t worth testing those waters.

 

[154NH773]

Having fought these types of issues in NH, I would suggest you consult a good land use attorney. There are a lot of unknowns in your inquiry, but in general the police will not take any action on what is actually a civil complaint.

You have a right to remove any impediment to your use of the right-of-way, but if you cut down a tree, the tree belongs to the servient owner. You could be liable for “timber trespass” and sued if you remove the trees from the property after you cut them down.

There is NH caselaw that has found a dominant owner liable for removing trees that were not actually blocking the use, so be careful. Your definition of “dangerous” may be biased, so also be careful of relying on only your opinion. Have the fire chief assess the restrictions.

Check your local building codes and ordinances for minimum widths of access roads, which may vary depending on the number of houses accessed. State law has some requirements for road widths when issuing new building permits, but many of the restrictions may be overridden by local government actions. It is too complicated to explain here, but it may be important to know when the right-if-way was granted and when building permits were issued.

If you purchase the right-of-way it would certainly give you standing to enforce any violations of the easement rights, but it would not give you any power to create new restrictions or make what a court might consider “unreasonable” demands on the dominant owners.

 

[HRZ]

THe OP is the dominant user of ROW as I read it.

ALso as to road width...check if there are any changes or upgrades triggered by other changes . For example , one local ancient narrow roadway of 13' passable ran into debate about being able to upgrade it to a mere 14 ' , a width long ago ruled as too narrow for roadways ...the new local min passage way must be 30' and an even larger right of way . My point being that if two neighbors got too creative to narrow a passage way below the historical requirement then upon removal of the obstructions they might be required to address new code..if any.

My local fire department makes periodic runs of big equipment down some small roadways inc private ones just to be sure they can get thru...ask you local department ? I know for a fact one neighbors very big tree no longer obstructs passage past his yard . And don't overlook how unhappy Fire or emergency vehicle operators may be to be stuck in mud in some guys grass area!

I read and agree ownership of timber needs to be considered ..probably dates to British history of the colony. ( My British text on land use is full of such issues )

BUt I disagree about a dominant tenants inability to pass over some change made to the ROW by one servient tenant , be it planting grass or paving it with his favorite colored pavers ...police probably want to defuse conflicts ..they are not there to decide civil disputes....but it's smart not to pick a fight with a police officer

 

[justalayman]

THe OP is the dominant user of ROW as I read it.

ALso as to road width...check if there are any changes or upgrades triggered by other changes . For example , one local ancient narrow roadway of 13' passable ran into debate about being able to upgrade it to a mere 14 ' , a width long ago ruled as too narrow for roadways ...the new local min passage way must be 30' and an even larger right of way . My point being that if two neighbors got too creative to narrow a passage way below the historical requirement then upon removal of the obstructions they might be required to address new code..if any.

My local fire department makes periodic runs of big equipment down some small roadways inc private ones just to be sure they can get thru...ask you local department ? I know for a fact one neighbors very big tree no longer obstructs passage past his yard . And don't overlook how unhappy Fire or emergency vehicle operators may be to be stuck in mud in some guys grass area!

I read and agree ownership of timber needs to be considered ..probably dates to British history of the colony. ( My British text on land use is full of such issues )

BUt I disagree about a dominant tenants inability to pass over some change made to the ROW by one servient tenant , be it planting grass or paving it with his favorite colored pavers ...police probably want to defuse conflicts ..they are not there to decide civil disputes....but it's smart not to pick a fight with a police officer

thenpolice are not going to get tape measures out and figure out where the boundary lines are. If the grass looks like it’s part of one of the neighboring properties and the op drives over it, the police may see it as criminsl

How do I know this? Land I own is at the end of a dead end street. The street row actually extends onto my property. There is an area about 20 feet long from the end of the pavement to my property line. The last property owner along the street put a fence up blocking my useage if the road. I called the police and explained the issue. They said they,weren’t going to make the neighbors remove the fence. I said I was going to take it down.. they simply said they would arrest me if I did

Fence stayed up for a short period after that, but not long.

 

[HRZ]

With that logic one neighbor could block 1/2 the row with boulders and the other block 1/2 row with grass.

when it's too narrow it's darn time for Op to engage counsel. In the meantime walk the full width and length and record same on a periodic basis.

And copy / read that deeded row word for work and clarify it with counsel as appropriate.especially any language as to who maintains what at whose cost.

 

[justalayman]

My point was the police did threaten to arrest me if I took the fence down.

And yes, the legal access to a public roadway was blocked because of the fence.

I had just purchased it and was starting to develop it so it wasn’t a big deal at the moment.

 

[thaliadaniels]

Don't take off the fence. There's a legal way for that especially if it is an obstruction in a public road.

 

[Just Blue]

Don't take off the fence. There's a legal way for that especially if it is an obstruction in a public road.

Let me guess...You didn't read the opening post did you?