How to Interpret a Right-of-Way Grant

**ROWhelp** · 02-01-2011, 11:58 AM

My question involves an easement in the state of: NC

We have a 1967 deeded easement outlining our use and exclusion of public use. One of the inheritors of the now divided, once whole original issuing property is telling us that the easement doesn’t apply to her land. It is the only access to our property. Can you give me your opinion?

Quote from deed:
“Whereas the party of the first part is owner of land on which a road runs from ** Road up to the property of (now our property)”

** Rd. is a private road, owned by the issuer of the deed. The issuer also owned the beginning of our driveway. The inheritor is saying the ROW only applies to the end of the driveway. To leave our property you must go down our driveway, turn onto private ** Rd. until you reach the state hwy.

My question is – in reading, “from ** Rd.” does it leave the right of way dead ending in the middle of the issuers private property. Can “from ** Road” legally include ** Road?

Is there any logical legal remedy for this or did we just get suckered into buying an incomplete ROW deed with our property?

I don't know if the inheritor wants the property at a discount or what, but they are being very inflexible.

**LandSurveyor** · 02-01-2011, 01:22 PM

The fact that a tract of land with an existing easement or ROW is later subdivided is of no consequence. In the absence of any other written agreements to the contrary, purchasers of newly divided lands are burdened with the same servient tenancy as the original owners.

If the neighbor disputes the existence of the ROW, have an attorney write a letter.

If the neighbor disputes the location of the ROW, you will need a registered North Carolina land surveyor to show where it is on the ground.

**Newtons_Apple** · 02-02-2011, 05:09 PM

Just to expound a little further, once an easement is granted, it runs with the land, and not with the person or persons who originally granted it. When a future heir or assign buys a piece of property, they buy whatever runs with the land, whether they are actually aware of it or not. This may be the root of the problem - your neighbors may simply not understand the rules in this case.

From the little evidence I have seen, your neighbor's property is burdened by an easement of which your property benefits. The only way this easement as I currently understand it can be terminated (or perhaps released is a better term here) is if you agree, by signing a legal document, to allow it to be released. Some easements can expire, or can revert based upon a set of special conditions, etc. But you have not yet indicated if there are any special conditions. If there were, they would be in the deed which created the easement.

The easement is on your deed. It should also be on your neighbor's deed. If it isn't, this may be part of the reason they feel it doesn't apply to them anymore. Also, it is interesting to me that North Carolina is a race state (meaning NC follows the Race Statute as it applies to the recording of a legal document; the statute that the document recorded first wins and will have priority over any later recordings.) It may be worth meeting with a lawyer, if for no other reason they can perhaps give you peace of mind, and can write a "lawerly" letter as LandSurveyor suggested to keep the situation from escalating.

**ROWhelp** · 02-03-2011, 03:26 PM

Thanks for the responses.

I had spoken with the caretaker of one of the divided parcels, who had been around when the ROW deed was written, and he believed that the ROW deed was intended to go all the way to the public road (not end in the middle of the private road/property) and prevent public useage. Although I realize intent not properly expressed in the legal document isn't much help.

To elaborate on our problems, the private road that leads to the private tee that leads to our house, is being left open to the public. This causes the road to be in really bad condition and we are harassed (to the point of obscenities and guns being used to intimidate us) by the hunters that use it. We would like this road closed, as our easement states "not to be open to the public"

However, one inheritor of the property is saying that the easement is "from" this private road, which leaves the easement dead ending at the tee, in the middle of the private road. This doesn't make sense to me, but there are no other coordinates mentioned in the deed, except for "from" the private road to our property.

Can a surveyor accurately survey with such a loose description?

Is it possible that "from the private road", could include the private road?

I really don't want to antagonize our neighbor, but we are getting several different interpretations from the different landowners. Having this road open is causing damage to the road, making it so muddy and slick that we can only get out with the 4x4 and the danger from the threatening hunters. The inheritor that could close the road won't even consider closing the road. Which maybe their right, I'm not sure. But if this is the case, then we do not have a deeded ROW all the way to the public hwy.

Any ideas would be greatly appreciated.

**LandSurveyor** · 02-07-2011, 01:30 PM

The verbiage following the "whereas" in your quotation is insufficient to describe and/or grant an easement. Is there anything else in the deed regarding the easement/ROW?

None of the conversations you have had so far with the caretaker, etc. regarding the intended use or actual location of the easement are of any consequence legally. The Statute of Frauds will exclude verbal (parol) evidence at trial in most cases. The statements may however suggest that there are other written documents somewhere which could shed more light on the subject. An attorney, land surveyor, or title examiner can do a search for you. There may be a plat map or maps of the subdivision in 1967 or later on file with the county which could shed some more light on the situation.