Size of Right of Way

[miknwv]

What is the name of your state? WV

My neighbor has property behind our house and hte only access road to it is our driveway and a road extending off of the driveway. He has had adverse possession since he has traveled the road with a pickup truck for over 20 years. Now, he's trying to claim he has a 20 foot wide right of way and has cut trees, graded part of the road and increased it to over 20 feet wide, destroying part of our property. He also re-routed the drainage ditches on the part of this road that is on our property. He has a map showing a 20 foot right of way through there but there is no written legal documentation that exists giving him a 20 foot right of way. An oil company has been caught in the middle, they are legally bound to make changes to teh round since they have wells back there. I caught him today, he was wanting the oil company to take a large stretch of this road, knock out 4 feet of the bank and trees, and widen it on each side to 20 feet. I told them they will NOT widen the road and that I wanted my drainage ditches back the way they were.

1. Is he entitled to a 20 foot right of way?
2. Can he dictate where the drainage ditches are and where they drain to on this adverse possession?

 

[lwpat]

A twenty foot right of way would probably be considered reasonable. If you fight it a court could award more. The land is yours and any work would have to be necessary for ingress and egress and within the 20 feet. If he has changed the drainage you would be within your rights to make him change it back.

I suggest that you meet with him and the oil company to work out a compromise that all of you can live with.

 

[seniorjudge]

1. Is he entitled to a 20 foot right of way?

A: No, not unless he has a court judgment or a deed that says he does.


2. Can he dictate where the drainage ditches are and where they drain to on this adverse possession?

A: No.

 

[Orcons]

What is the name of your state? WV

My neighbor has property behind our house and hte only access road to it is our driveway and a road extending off of the driveway. He has had adverse possession since he has traveled the road with a pickup truck for over 20 years. Now, he's trying to claim he has a 20 foot wide right of way and has cut trees, graded part of the road and increased it to over 20 feet wide, destroying part of our property. He also re-routed the drainage ditches on the part of this road that is on our property. He has a map showing a 20 foot right of way through there but there is no written legal documentation that exists giving him a 20 foot right of way. An oil company has been caught in the middle, they are legally bound to make changes to teh round since they have wells back there. I caught him today, he was wanting the oil company to take a large stretch of this road, knock out 4 feet of the bank and trees, and widen it on each side to 20 feet. I told them they will NOT widen the road and that I wanted my drainage ditches back the way they were.

1. Is he entitled to a 20 foot right of way?
2. Can he dictate where the drainage ditches are and where they drain to on this adverse possession?

Not sure I understand what the neighbor has. You say he "has adverse possession" but it sounds like he would at most have a prescriptive easement for using the road for the prescriptive period in the proper manner. To "have" adverse possession typically requires a judgement of the court, has he taken you to court? If a judgement is entered for him giving him some piece of your land by adverse possession then he would own whatever land that was and could do with it as he pleased. If a judgement was entered for him giving him an easement it would typically to be to continue using the land as he had been and would in all likelihood not get him rights to widen the road or take other action to change it. (But if he had a judgement, as SJ points out, that would tell you exactly what he could and could not do.) If all he has is a claim that he has used the land and so has gained some rights over it (either adverse possession or prescriptive easement) then he probably needs to sue you to get a court to affirm those rights. You should talk to a local attorney (even though he thinks he has a valid claim, he may not, these cases are fact specific and none of us can know all the particulars) and if you are still convinced he will prevail you should at least try to negotiate with him. If he is reasonable, he should be willing to find a settlement with you to save himself the legal fees he will incur going to court.

(The other possibility is that he could get an easement by necessity since you seem to be saying that this is the only access to his property, but again he would need a court judgement for that.)

 

[miknwv]

No, nothing's been judged, nothing's been taken to court, just adverse possession where he has been travelling it with a pickup truck or tractor for 30 some years, nothing written saying he has any kind of right of way. We offered to literally give him a right of way through a different part of our property so he won't be driving back and forth in front of our house a lot (he is putting houses back there) and he refused, saying the only way he would is if we would pay half on the cost of the new road even though we would never use it.

 

[Orcons]

No, nothing's been judged, nothing's been taken to court, just adverse possession where he has been travelling it with a pickup truck or tractor for 30 some years, nothing written saying he has any kind of right of way. We offered to literally give him a right of way through a different part of our property so he won't be driving back and forth in front of our house a lot (he is putting houses back there) and he refused, saying the only way he would is if we would pay half on the cost of the new road even though we would never use it.

You really need to talk to a local attorney who handles these kind of cases. These cases are fact specific and while the basic ideas are similar across states, the laws of each state are different (and I don't know what WV law says). Usually the difference between adverse possession and a prescriptive easement is that the latter does not require exclusive use but the other requirements are the same. You don't say if you used this road or not but I would guess you did so he would not be likely to get adverse possession. As to whether or not he meets the other requirements, a court would have to determine that. Even if he has been using the road for a number of years it does not mean he would prevail if for example his use was sporadic, or there were gaps in his use, or he attempted to conceal his use, or if his use was not something that would have been known to you or others. Again, a local real estate attorney should be able to help you sort this out. Good luck.

 

[justalayman]

You can simply call his bluff by blocking off his access to the lane.

He either abandons the lane or sues you in court for a prescriptive easement. If he calls the police, they will tell him it is a civil matter and since there is nothing giving him use of the lane, they should tell him to staty off the lane until a judge settles it.

Until the courts say he has rights to use the lane, he has nothhing.

The one advatage you may have by forcing this into court is since you are willing to allow an easement, you can offer that to the judge. A reasonable judge would see this as an offer to compromise and should jump on it as the right thing to do.

Actually the difference between adverse possession and prescriptive easement is this;

prescriptive easement gives the other rights to continue to use whatever land is of concern. You continue to own the property

adverse possession;

the other person actually takes ownership of the proeprty in question and can actually prevent you from ever using it again.

BIG difference.

especially since he is developing the land behind you, he needs to be concerned. He cannot pass a prescriptive easement to the owners of the divisions of his property so, if they are using it, you need to stop that right now. Again, getting it in court seeems to be a good thing.

another thing that comes to mind in your defense. It would seem you have allowed the neighbor to use the lane. One of the requirements of prescriptive easement claims is the use is adverse to the intent of the true owner. If you gave permission, then the time he had permission will not count towards the required use of the property. it may be a fine technicality but it may be of use to you.

 

[miknwv]

we've both used the road equally************** its not like he's used the road adn we haven't. plus, an oil company has rigs back there so they're the ones who have to take care of the road adn they're the ones who have a right of way. i greatly appreciate all of the input.

 

[Orcons]

You can simply call his bluff by blocking off his access to the lane.

Not a good idea. In some states either a prescriptive easement or adverse possession is vested in the claimant when the claim ripens. Yes he would need a court order to enforce it but the neighbor might already have rights over this land and you could end up paying damages for interfering with his rights if he ultimately prevails.

The one advatage you may have by forcing this into court is since you are willing to allow an easement, you can offer that to the judge. A reasonable judge would see this as an offer to compromise and should jump on it as the right thing to do.

Not sure I understand what is being proposed. Either the neighbor has adverse possession or he doesn't and either he has a prescriptive easement or he doesn't. The judge will rule on those issues, and may encourage the parties to come to some other agreement, but the judge isn't going to find something that isn't there because the OP is offerring it.

Actually the difference between adverse possession and prescriptive easement is this;

prescriptive easement gives the other rights to continue to use whatever land is of concern. You continue to own the property

adverse possession;

the other person actually takes ownership of the proeprty in question and can actually prevent you from ever using it again.

BIG difference.

True, and this is a distinction that I made in an earlier post. The distinction of exclusivity (for AP) versus not (for an easement) has to do with what it takes to prove the claim, not the result of a succesful claim.

 

[miknwv]

Let me see if I can put into perspective what you're basically saying here.....

It's been our property our entire lives, he's only used our road to access his property. Now that he's been traveling it for so long with no documentation anywhere saying it is his or that he has a right of way, he can just take the property and it'll be his? I wish I could draw a map to put it into better perspective.....Like I said, we've offered to give him a 20 foot right of way off the back side of our property to connect to the road on past our house. Our main concern is our children. My parents have several grandchildren who play in the yard, and they have to cross the road a lot to get to some of their stuff, i.e. trampoline, fishing lake, etc. It's just an old 10 foot gravel road from beginning to end.

 

[justalayman]

Orcons;1658704]Not a good idea. In some states either a prescriptive easement or adverse possession is vested in the claimant when the claim ripens. Yes he would need a court order to enforce it but the neighbor might already have rights over this land and you could end up paying damages for interfering with his rights if he ultimately prevails.

I will simply have to disagree with this. There is nothing until a court orders it. What you are saying is if a person comes up and says "ia have a prescriptive easement" you would simply roll over? Good luck.

Not sure I understand what is being proposed. Either the neighbor has adverse possession or he doesn't and either he has a prescriptive easement or he doesn't. The judge will rule on those issues, and may encourage the parties to come to some other agreement, but the judge isn't going to find something that isn't there because the OP is offerring it.

What I was proposing is an equitable solution. Even if there may be a viable claim, a judge can move the easement to a more preferred position if he feels the need as long as it provides the same constructive purpose. OP had offered to allow an easement in another location more conducive to his lifestyle. A judge can allow the easement to be placed there, even if the actual path has been a dfferent place.

True, and this is a distinction that I made in an earlier post. The distinction of exclusivity (for AP) versus not (for an easement) has to do with what it takes to prove the claim, not the result of a succesful claim

You are absolutely wrong here. A prescriptive easement only allows the trespasser the right to use the land claimed. An adverse possession claim allows the trespasser to actually take title to the land, which would allow them to then restrcit the origianl owner from using the property.

Exclusivity in West Virginia has been ruled to not mean the trespasser is the only person using the land (as in the true landowner does not use it). It is simply that a particular person has used it as opposed to the general public.

 

[seniorjudge]

Not sure I understand what the neighbor has. You say he "has adverse possession" but it sounds like he would at most have a prescriptive easement for using the road for the prescriptive period in the proper manner. To "have" adverse possession typically requires a judgement of the court, has he taken you to court? If a judgement is entered for him giving him some piece of your land by adverse possession then he would own whatever land that was and could do with it as he pleased. If a judgement was entered for him giving him an easement it would typically to be to continue using the land as he had been and would in all likelihood not get him rights to widen the road or take other action to change it. (But if he had a judgement, as SJ points out, that would tell you exactly what he could and could not do.) If all he has is a claim that he has used the land and so has gained some rights over it (either adverse possession or prescriptive easement) then he probably needs to sue you to get a court to affirm those rights. You should talk to a local attorney (even though he thinks he has a valid claim, he may not, these cases are fact specific and none of us can know all the particulars) and if you are still convinced he will prevail you should at least try to negotiate with him. If he is reasonable, he should be willing to find a settlement with you to save himself the legal fees he will incur going to court.

(The other possibility is that he could get an easement by necessity since you seem to be saying that this is the only access to his property, but again he would need a court judgement for that.)

Several things are wrong with this.

The most obvious is that a prescriptive easement is gained through adverse possession.

 

[Orcons]

Several things are wrong with this.

The most obvious is that a prescriptive easement is gained through adverse possession.

Not true. Every state is different but in general, adverse possession requires use that is actual, continuous, open, notorious, adverse to the record owner, under claim of right and exclusive for the prescriptive period. The "exclusive" requirement typically requires the adverse possessor to exclude the use of the property by anyone else as a record owner would.

Typically a prescriptive easement has the same requirements, except for the requirement of exclusivity. This is what I have been saying all along. Since the record owner claims to be have used the road also, there can not be adverse possession (assumimg the judge believes him).

There is also, of course, a difference in the effects of proving a claim either to an easement (you only get to use the land) or AP (in which you get ownership) but a prescriptive easement claim does not require you to prove adverse possession. In fact, AP is a higher standard.

 

[Caveman]

When did SIZE start to count?
Oh. Nevermind. that is what it is all About. I will just go back to my ribs now.

I have always not gotten it.

Just not a material caveboy.

 

[miknwv]

A few more things have been happening here. They've been waiting til we're not home, then hiring dozer companies to come in and improve upon the road, widen it, etc., and they've been cutting trees. We caught them the other day and before we even got out of our trucks (on our own property mind you) they started yelling and screaming at us and threatening us. Before I could get to my camera, they took the dozer and parked it on their property. We called a state trooper for destruction of property and he showed up and said there was nothing he could do since it was a civil matter. Now, they're gonna do it little bits at a time until its finished. We're documenting as much as we can but we can't stop the damage. We've researched all land deeds belonging to everyone involved and nowhere does it say he has any kind of right of way. We've came to the conclusion he has "right of way by adverse possession" in which he can use the road the same way he obtained it, no less, no more, and he can't improve upon the road.

Since they're about to be moving trailers back there, if we put up an injunction for them to stop then we would have to put up a bond, and we don't want to have to do that. Here's the new question....if we wait til after they move the trailers up there, can we then put in an injunction for them to stop using this road without having to put up a bond? There is another way in to this property.