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Vague easement

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tomkow

Junior Member
I am contemplating purchasing a 40 acre parcel in northern Wisconsin.
I have found that the parcel has an easement worded like "a perpetual easement to pass over the (legal description of property) for ingress and egress to the lands conveyed.
The 40 acres is next to a road and the easement is granted to the party that owns land behind the 40 I want to purchase.
Since there is no location or width describing the easement, what rights would I have in determining where the ingress and egress can occur?
The easement was placed in the title in 1961 and I am certain it was for logging purposes as the easement grantee is a lumber company.
However, I am concerned due to the vagueness of the easement language, that a road could be built if the grantees land is sold, impacting my use or usage of the land.
Any advice is appreciated.
Thanks.
 


seniorjudge

Senior Member
Q: Since there is no location or width describing the easement, what rights would I have in determining where the ingress and egress can occur?

A: Is the easement being used for roadway purposes now?
 

FarmerJ

Senior Member
Unless a easement gives the right to maintain or improve it the landowner benefiting from the easement does not have the right to do anything other than cross over the land. , If your serious about buying it the best bet is to use this sites links and locate a real estate atty that might be able to help you negotiate a more clear and defined easement, wich would help you with your own planing when it comes to things like your driveway and homesite placement , well ,septic etc . As well as a maint agreement if the property is sold to another party since its likely they would go up there alot more often than any one going in to harvest timber.
 

154NH773

Senior Member
I usually find FarmerJ's advice very informative, however in this case I must respectfully disagree. An easement granted for;
"a perpetual easement to pass over the (legal description of property) for ingress and egress to the lands conveyed."
would allow the dominant tenant to improve the roadway as necessary to make reasonable use of it. That might mean you could not even keep him from paving it. There is caselaw cited in many states that allows utilities to be place down a right of way that only specified "ingress and egress", because it was a reasonable extension of "access" to a property.

There is no doubt there is an easement, it might be up to the court to decide the location and use. I would suggest you work with the other party to define the easement and the use, and agree on maintenance, etc. Put your agreement on paper and file it in the Registry. At least you may be able to put the right of way in a location that is agreeable, which might be better than the court deciding where it will go. Perhaps you could even buy the easement back from the other party and extinguish it..

That is not to say you should just roll over and give away your rights. Anything other than ingress and egress should be negotiated, and you should be compensated for anything additional you give, and if you don't want to give up anything else, then don't. I would certainly make sure you have an agreement before buying the property.

I have been in court for 5 years now, over a well described easement that unfortunately did not have any provision for maintenance. I was the guy that needed access through other property, and so far the court has gone my way.
 
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seniorjudge

Senior Member
...

would allow the dominant tenant to improve the roadway as necessary to make reasonable use of it. That might mean you could not even keep him from paving it. There is caselaw cited in many states that allows utilities to be place down a right of way that only specified "ingress and egress", because it was a reasonable extension of "access" to a property.

...

You're wrong and you're mixing apples and oranges.

Utility easements are a whole 'nother critter.
 

drewguy

Member
154NH makes sense . . . I would try to negotiate with both parties, including the easement holder. Find out what he wants and either try to extinguish the easement in conjunction with your purchase or try to negotiate a specific area for the road so that you know where it will be and that you're fine with its location there if it is ever built.

As for FarmerJ, I too have researched the issue and determined that for the most part a person holding an easement for ingress/egress also has the right to maintain/improve a road for purposes of that use. In some circumstances (e.g., a shared driveway) the easement holder may be able to compel other beneficiaries of that easement to share in the costs of maintanence/improvement. I did not locate any cases barring such improvements or finding them illegal, except perhaps in instances where the improvements were somehow unreasonable.
 

154NH773

Senior Member
King v. Town of Lyme and Argentati, a Supreme Court of New Hampshire decision March 20, 1985, in which it states:
"Even if we assume that the 1977 decree did not contemplate the installation of utility facilities, "it is well established that an easement may be maintained for a purpose not contemplated when it was created." Kalman v. Hutcheson, 111 N.H. 36, 41, 276 A.2d 260, 264 (1971). "In this state the respective rights of dominant and servient owners... are determined by reference to the rule of reason." Sakansky v. Wein, 86 N.H. at 339, 169 A. at 2. The use to which an easement may be put depends on what is reasonable, under all of the surrounding circumstances. Delaney v. Gurrieri, 122 N.H. 819, 821, 451 A.2d 394, 395, (1982);"
Now, this is NH caselaw I'll agree, but it is not totally off the wall to suggest that WI courts may agree.
 

154NH773

Senior Member
SJ said:
Utility easements are a whole 'nother critter.
That is not completely true. You can certainly grant a utility easement to a utility company that benefits a third party, or a third party can grant a utility easement to a utility company that favors the installation of your utilities, and that is the normal process.

However, if the servient tenant refuses to grant a utility easement that would allow your utility installation, you can go to court in a quiet title action and ask the court to reform the deed of the servient tenent to allow utility access along a right of way that was only granted to you for "ingress and egress", and the court may very well do that if it is reasonable. In other words, the court may grant you utility rights along the right of way, thus allowing you to grant a utility easement to the utility company yourself.

The net result is that you get your utilities through you neighbor's property without his approval or permission. That is the nature of easements, and why people burdened by them get so upset.

"it is well established that an easement may be maintained for a purpose not contemplated when it was created."
To say that a dominent tenant can only cross the property, and not make reasonable improvements to ensure adaquate access, is incorrect in some/most cases.

If, on the other hand, the easement specifically prohibited a use or improvement, then the situation would be much different.

If the OP would be upset or aggravated by placement or use of the right of way, he should either get an agreement prior to purchasing the property, not buy it, or expect to spend years in litigation.
 
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drewguy

Member
Nope.

You're wrong too.
Really?

Hayes v. Acquia Marina, 414 S.E.2d 820 (Va. 1992) (improvements, such as paving, okay if for intended use and does not increase burden on servient estate)

Hunter v. Keys, No. 99-0257 (Wis. Ct. App. 1999)("The owner of an easement may make changes in the easement for the purpose specified in the grant as long as the changes are reasonably related to the easement holder's right and do not unreasonably burden the servient estate.")

Illinois District of American Turners v. Rieger, No 2-01-0008 (Ill. Ct. App. 2002) (""It cannot be seriously questioned that such an easement carries with it the right to enter upon any part of the way and improve it in a manner to render it available for its contemplated use, if in so doing there is no unreasonable interference with the co-owner's rights." Heuer, 187 Ill. App. at 277-78. ")

Drolsum v. Luzuriaga, 611 A.2d 116 (Md. Ct. App. 1992) ("The few Maryland cases on this subject hold that an easement owner has a right to repair, maintain, and improve the easement. We believe that no Maryland case has actually considered the duty of an owner to keep an easement in repair. See Wagner v. Doehring, 315 Md. 97, 104, 553 A.2d 684 (1989) (grant of right of way entitles holder to “maintain, improve, or repair the way to serve its purpose”); Tong v. Feldman, 152 Md. 398, 402, 136 A. 822 (1927) (dominant tenement owner may enter, at reasonable times, to make proper repairs); Fedder v. Component Structures Corp., 23 Md.App. 375, 381, 329 A.2d 56 (1974) (owner of right of way may prepare, maintain, improve, or repair way).
 

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