Notarized Right of Way Used for 11 Years

**slgroves** · 07-08-2012, 05:00 PM

My question involves an easement in the state of: WV.

Our right of way issue goes back a long way. We are on property bought by father years ago. Two corners of the property had been sold before my dad bought it and the right of way seemed to go through one of the corners. My dad & family walked to the property on what was known as the right away for years before we built on it. When we built our neighbor had been claiming that it wasn't a right of way and we didn't fight it at first because we were able to build a road in from the closest main road. The issues started when we realized that we couldn't use our driveway in the winter because it is extremely steep and unsafe with even a few flakes of snow, and smaller cars or heavy loads won't make it up the road even in good weather. So we talked to the neighbors on the back side of the property about coming in through their road and they agreed that we could use the road for bad weather and other difficult situations and we had a similar agreement signed & notarized. Anytime we've had special occasions other than weather (MIL can't drive on the rough road, piano students came that way, etc.) we've talked to our neighbors and had no problems. The issue now is one of our neighbor's kids was using our driveway as an ATV track and tearing up our gravel among other things. When we asked them to stay off the driveway, they threatened to close our back way (the winter way). Can they do this after we've been using it for 11 years (since 2001 when we moved in)? If they closed it, we wouldn't make it to work or anywhere else in the winter. Also, if they were able to close it, could we pursue the original right of way or has it been too long? We started to take those neighbors to court about it; had an attorney send them a letter about the fact that the original right of way was blocked about 8 years ago or so, but our lawyer went bankrupt and we just let it go. The front neighbors (original right of way) claimed that the ROW wasn't on them, and the deed is not specific about exactly where the right of way is, but it is mentioned. Does a right of way written in the deed disappear if not used? WE had a surveyor look at it and they wouldn't mark it - said it wasn't enough or something like that. Any suggestions?

**LandSurveyor** · 07-08-2012, 07:07 PM

Does a right of way written in the deed disappear if not used?

No, mere non-use does not extinguish a valid easement.

Can they do this after we've been using it for 11 years (since 2001 when we moved in)?

If the grant was permissive only, permission can be withdrawn.

You need to get another local attorney to advise you on this. Without being able to read the original agreement, it does not matter if it was notarized or not. An invalid agreement which is notarized is still an invalid agreement.

**slgroves** · 07-09-2012, 03:40 AM

[QUOTE=LandSurveyor;632555]No, mere non-use does not extinguish a valid easement.

Just to clarify, even if our neighbor blocked it years ago? I'm not sure how long it has been.

**LandSurveyor** · 07-12-2012, 09:17 PM

Just to clarify, even if our neighbor blocked it years ago? I'm not sure how long it has been.

If it's been more than ten years you may have a problem.

You still need to get a local attorney on this fairly soon. The fact that a surveyor found the location to be ambiguous only means that the location on the ground per the easement grant is ambiguous, not that there is no valid grant. A court would probably look at this as a latent ambiguity and be admitting evidence and testimony which would resolve the location; probably where the use occurred in the past.