Termination of Easement

[Shadowbunny]

State: Arizona.

We (husband and I, plus 4 neighbors) were just served with a lawsuit concerning a "utility easement and equestrian trail" that runs along the back of our properties.

When the housing development was built in 1968, there was a utility easement and equestrian trail that runs along the back 10' of each property. The utility easement was for the irrigation ditch that runs through each property. 10 years later, neighbors started putting up block walls around their individual properties thus blocking off access to the ditch, and making the "trail" non-existent.

Fast-forward to now (40 years later), and a new neighbor has moved in down the block. He's suing us all, saying that the block walls diminish the property values and keep him from being able to access the East Canal recreation area. (The "recreation area" in question is a sorta-paved walkway that runs parallel to the canal.) As a side note, he can walk 1/2 block out of his way to access the canal bank. He wants us all to remove or relocate our block walls to accommodate the easement. Given that these walls are all on 1-acre lots, this is an expensive undertaking.

We're in the process of retaining an attorney, but as it's Friday afternoon, don't expect to be able to sit down with one until next week. In the meantime, I'd love to get some opinions from the smart folks here on whether they think we would prevail based on the below:

"Prescription
Just as an easement can be created by prescription (adverse possession), an easement can also be terminated by prescription if the owner of the servient tenement excludes the easement holder from the usage of the easement for the prescribed statutory period of time. For example:

Adam and Brent are neighbors. Brent holds an easement that allows him to cut through Adam’s property to access a street. One day, Adam builds a wall between Brent’s property and the path over which Brent is supposed to be allowed to cross, thereby denying Brent access to the path. If this wall stays up for the statutory period of time and Brent brings no legal action to enforce his easement, his easement could be lost by prescription. (https://lawshelf.com/courseware/entry/termination-of-easements)"

Thoughts, oh learned ones?

 

[LdiJ]

State: Arizona.

We (husband and I, plus 4 neighbors) were just served with a lawsuit concerning a "utility easement and equestrian trail" that runs along the back of our properties.

When the housing development was built in 1968, there was a utility easement and equestrian trail that runs along the back 10' of each property. The utility easement was for the irrigation ditch that runs through each property. 10 years later, neighbors started putting up block walls around their individual properties thus blocking off access to the ditch, and making the "trail" non-existent.

Fast-forward to now (40 years later), and a new neighbor has moved in down the block. He's suing us all, saying that the block walls diminish the property values and keep him from being able to access the East Canal recreation area. (The "recreation area" in question is a sorta-paved walkway that runs parallel to the canal.) As a side note, he can walk 1/2 block out of his way to access the canal bank. He wants us all to remove or relocate our block walls to accommodate the easement. Given that these walls are all on 1-acre lots, this is an expensive undertaking.

We're in the process of retaining an attorney, but as it's Friday afternoon, don't expect to be able to sit down with one until next week. In the meantime, I'd love to get some opinions from the smart folks here on whether they think we would prevail based on the below:

"Prescription
Just as an easement can be created by prescription (adverse possession), an easement can also be terminated by prescription if the owner of the servient tenement excludes the easement holder from the usage of the easement for the prescribed statutory period of time. For example:

Adam and Brent are neighbors. Brent holds an easement that allows him to cut through Adam’s property to access a street. One day, Adam builds a wall between Brent’s property and the path over which Brent is supposed to be allowed to cross, thereby denying Brent access to the path. If this wall stays up for the statutory period of time and Brent brings no legal action to enforce his easement, his easement could be lost by prescription. (https://lawshelf.com/courseware/entry/termination-of-easements)"

Thoughts, oh learned ones?

Did you verify that the bolded applied to your state and was valid under your state's easement laws? Each state's laws are a little different.

 

[Shadowbunny]

Did you verify that the bolded applied to your state and was valid under your state's easement laws? Each state's laws are a little different.

I found info on establishing an easement, but not as clear whether the same holds to terminate an easement.

"To establish an easement by prescription in Arizona, the party claiming such easement must file a lawsuit, and prove by “clear and convincing evidence,” which is a more stringent standard than the “a preponderance of the evidence” standard applicable to most civil claims, each of the following elements: (1) that the land over which the easement is being claimed has been actually and visibly used, (2) for a continuous period of at least ten years, (3) under a claim of right, that is (4) hostile to the title of the owner of the affected land. The mere use of another’s land, without satisfying each of these elements, is insufficient to prevail on a prescriptive easement claim. " https://www.asreb.com/2017/01/if-they-use-it-you-may-lose-it/

 

[PayrollHRGuy]

Even if the easement stands you may still be able to win. The neighbor isn't trying to ride a horse to the canal, is he? He certainly isn't drainage water.

 

[Zigner]

Even if the easement stands you may still be able to win. The neighbor isn't trying to ride a horse to the canal, is he? He certainly isn't drainage water.

I suspect the neighbor would like to utilize the aforementioned equestrian trail.

ETA: Hrmm, Shadow - is there an easement for the equestrian trail, or just for the drainage ditch?

 

[PayrollHRGuy]

I suspect the neighbor would like to utilize the aforementioned equestrian trail.

ETA: Hrmm, Shadow - is there an easement for the equestrian trail, or just for the drainage ditch?

Well, @Shadowbunny said he wanted access to the path that runs parallel to the canal. The way he wrote that I assumed that wasn't the equestrian trail but a trail designed for humans not horses trail.

 

[Zigner]

Well, @Shadowbunny said he wanted access to the path that runs parallel to the canal. The way he wrote that I assumed that wasn't the equestrian trail but a trail designed for humans not horses trail.

That's the area that the neighbor wants to get to, not the area covered by the easement.

 

[PayrollHRGuy]

Either I'm reading the OP wrong or you are. Luckily we know @Shadowbunny will return so we won't be left hanging.

 

[Shadowbunny]

I suspect the neighbor would like to utilize the aforementioned equestrian trail.

ETA: Hrmm, Shadow - is there an easement for the equestrian trail, or just for the drainage ditch?

Sorry that my post wasn't clear. There's a Utility Easement & Equestrian Trail (that's the verbiage from the Plat map) that runs along the Northern edge of the 11 households on our side of the block.

There's a Drainage Easement on the West side of our property (we're the last house on the end of the cul-de-sac).

He wants the 40+ year-old block walls removed from the North side of our properties so he can have access to the ET; he wants access to our locked gate on the West side of our property in order to access the Canal.

(And just a point-of-order, PayrollHRGuy, I'm a she. )

 

[justalayman]

how do the walls inhibit using the equestrian trail? It sounds like he wants to use land where there is no easement to access the equestrian trail.

 

[Shadowbunny]

how do the walls inhibit using the equestrian trail? It sounds like he wants to use land where there is no easement to access the equestrian trail.

There's never been a "trail" (as in, no improvements, no markings, nothing that would indicate that there's an actual trail), but when the neighborhood was built in '68 the back yards weren't fenced so you could, in theory, ride a horse across the back of your neighbor's property. However, as folks wanted to keep their horses, dogs, etc. actually IN their yards, the fences (then later, walls) were erected. Our wall was put up 10+ years ago; the neighbors put up their walls over 40 years ago. So unless a horse could jump a 6' block wall, it would be hard to traverse!

The utility easement in question is an irrigation ditch that runs the length of the street and in conjunction with the ET. The irrigation system was converted to a private system decades ago, with each neighbor responsible to maintain the portion of ditch that ran through their backyard. So there is no utility company to utilize the UE.

One of my questions is this: the plat map shows "utility easement and equestrian trail". Does the use of "and" indicate that the trail is NOT considered an easement?

 

[Shadowbunny]

Since a picture speaks 1000, here's a satellite view of our place and the neighbors':
Our walls

The rather wavy highlighted line is where the block walls are, and where the UE/ET is on the plat map. Even though you could easily ride a horse north of the walls, he wants the walls torn down.

 

[PayrollHRGuy]

But does he want to use it for riding a horse?

(And just a point-of-order, PayrollHRGuy, I'm a she. )

I know.