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  1. #1
    Join Date
    Jun 2009
    Posts
    14

    Default Overlapping Easements: Access and Irrigation

    We're in New Mexico.

    We access our property via a 25'-wide easement over Neighbor A's property. Neighbor B (adjacent to Neighbor A) has planted trees outside hsi property, and they're infringing on about 4-6' feet of our driveway. We've asked him to move them. Neighbor B is now saying there's a 12'-wide irrigation easement, 6' on his property and 6' on Neighbor A's property, and that 6' is also on our driveway. He's saying that if we make him move his trees from our access easement, he's going to dig a 12'-wide irrigation ditch, which till take away 6' width from our driveway.

    The irrigation easement is shown on the survey for Neighbor B's property, but there's no book/page and I've been unable to find a recorded easement. I don't know if it's shown on Neighbor A's survey. The irrigation easement is also mentioned in our legal description (the easement part), but again, can't find it recorded, can't find a book and page. It's just a very vague reference, doesn't say if it's for intalling an irrigatin ditch, or just for accessing an existing/different irrigation ditch, doesn't say who it was granted to or when, no details..

    I've asked the title company to research this, but it's slow going. So what happens if in fact there is a recorded easement for an irrigation ditch, and that overlaps our access easement? Obviously we can't drive with 2 wheels in an irrigation ditch, and the same patch of land can't be used as both a driveway and an irrigation ditch. Is the title company in any way responsible for not catching this? Is the attorney who drafted the 2nd easement responsible for the error? If in fact 2 easements with "conflicting" uses were granted over the same patch of land, what happens:

    1. Do we just lose part of our driveway (we have a big hrose trailer and truck, and a 19-foot driveway isn't adequate)?
    2. Does the access easement have to be moved to start at the edge of the irrigation easement (meaning Neighbor A loses more of his land)?

    I would sure appreciate any help anyone can offer. VERY confused and worried at this point!

  2. #2
    Join Date
    Mar 2009
    Posts
    327

    Default Re: Overlapping Easements: Access and Irrigation

    The overlapping or stacking of easements does happened albeit few and far between. In general, the second easements intent can not change the first easements intent. Case law. Krohn v. Marcus Cable Association, No. 10-99-244-CV, 3/14/2001 (Texas). A cable tv company wanted to add their lines to an existing electrical easement without the property owners permission. The court found that the cable company needed the owner's permission because the first easement was exclusively for electrical lines not cable TV lines.

    Therefore, digging a irrigation ditch in an existing ingress and egress easement "may" not be legal...you might have to get a lawyer.

    IMO, I would advise the adjacent property owner in a certified letter to remove all vegetation within your easement, and provide a copy of the easement. Ask the owner to provide a recorded copy of his "alleged" irrigation easement agreement.

    If you have a certified survey depicting an irrigation easement exists, ask the surveyor that certified the survey to produce the recorded easement book and page number of the easement.

    Read New Mexico Code for Land Use: specifically B and E

    47-12-3. Creation, conveyance, recording, acceptance and duration.

    A. Except as otherwise provided in the Land Use Easement Act [ 47-12-1 to 47-12-6 NMSA 1978], a land use easement may be created, conveyed, recorded, assigned, released, modified, terminated or otherwise altered or affected in the same manner as any other easement.

    B. A land use easement is not effective and creates no rights or obligations until it is recorded in the office of the county clerk of the county or counties in which any part of the real property subject to the land use easement is located.

    C. No right or duty in favor of or against a holder and no right in favor of a person having a third-party enforcement right arises under a land use easement prior to its acceptance by that holder and recordation of that acceptance in the office of the county clerk of the county where the real property subject to a land use easement is located, in whole or in part.

    D. Except as provided in Subsection B of Section 4 [ 47-12-4 NMSA 1978] of the Land Use Easement Act, the term of a land use easement shall be the term stated in the easement.

    E. No land use easement may impair an interest in real property existing at the time the land use easement is created, unless the owner of that interest is a party to the land use easement and consents to it.

    F. The rights, obligations and duties created by a land use easement shall only be enforceable upon and impact the land located within that easement.

    Otherwise, speak to a attorney with easement experience.

  3. #3
    Join Date
    Jun 2009
    Posts
    14

    Default Re: Overlapping Easements: Access and Irrigation

    THANK you so very much for the help, especially for pointing out item B.

    The title company hasn't gotten around to researching the alleged irrigation easement, so I have called the surveyor who did the work and he's said he'll research it. Hope this helps. We did already send a certified letter to the neighbor asking him to remove the trees, but he hasn't and since then has threatened to dig a ditch allowed by the mentioned irrigation easement. I'd never thought to ask HIM to produce proof of the easement, but I will do that next, or we'll have an attorney draft a letter to him with a deadline and that stipulation.

    Again, thank you so very much. I hope to know more today. Oh--I don't understand the meaning of E:

    No land use easement may impair an interest in real property existing at the time the land use easement is created, unless the owner of that interest is a party to the land use easement and consents to it.


    At this point, I don't know which easement was created first: irrigation ditch, or our access. I'll keep researching, and I sure appreciate your help and expertise.

  4. #4
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,376

    Default Re: Overlapping Easements: Access and Irrigation

    No land use easement may impair an interest in real property existing at the time the land use easement is created, unless the owner of that interest is a party to the land use easement and consents to it.
    That provision allows the conflict to be resolved in the familiar common law junior vs. senior rights concept. A subsequent easement cannot interfere with the right(s) granted in the existing easement.

  5. #5
    Join Date
    Mar 2009
    Posts
    327

    Default Re: Overlapping Easements: Access and Irrigation

    Exactly.

    If your ingress easement was there first, then the neighbor can not dig a irrigation ditch within the confines of your easement.

    1. Find out if neighbor has a valid recorded easement.
    2. Who's easement was recorded first?

  6. #6
    Join Date
    Jun 2009
    Posts
    14

    Default Re: Overlapping Easements: Access and Irrigation

    I'm still on the hunt for the actual irrigation easement and when it was recorded, who it was granted to. I did talk with a surveyor, he said it was referenced in a 1994 survey, our access easement was granted in June 1994, so still don't know which was first.

    But the surveyor also said it's not a single 12' easement, it gives our butthead neighbor the right to install a 6' ditch on HIS property (where the easement is) and the neighbor across whose land our driveway is the right to install a 6' ditch on HIS property. The good news is, the neighbor across whose land our driveway runs is a very nice guy, doesn't seem to have any interest in digging a ditch, and in fact already HAS an irrigation ditch running along the back side of his property. Surveyor also pointed out that since the driveway has been in place for 14 years now, and the ditch easement has not been used in that time, it's possible a judge would say the ditch easement no longer serves a purpose. I'm not sure how that would be accomplished, eliminating the easement.

    And the better news is, the access easement is for OUR property, but our butthead neighbor has also been using it, to pull his big camper into the back of his property. So at this point, if we have to hire an attorney, we'll be pointing out THAT, too, and he can just try to drag his trailer around through his driveway instead of using ours.

    Thanks to BOTH of you for the terrific help. It's awfully nice of you to share your expertise! I'll keep you posted.

  7. #7

    Default Re: Overlapping Easements: Access and Irrigation

    Quote Quoting JimMarc
    View Post
    But the surveyor also said it's not a single 12' easement, it gives our butthead neighbor the right to install a 6' ditch on HIS property (where the easement is) and the neighbor across whose land our driveway is the right to install a 6' ditch on HIS property
    That doesn't make sense. A property owner does not need an easement to do anything on his own property. More likely is that the neighbors traded easements in order to build a single large ditch - e.g. Neighbor A can use 6 ft of B's property to build a ditch and vice versa.

  8. #8
    Join Date
    Jun 2009
    Posts
    14

    Default Re: Overlapping Easements: Access and Irrigation

    I thought it seemed odd, too. So if that is the case, would the neighbor who granted the access easement for our property in 1994 be able to grant the OTHER (tree-planting, butthead) neighbor the right to now dig up 6' of our driveway and turn it into an irrigation ditch? I'm still trying to get a copy of the irrigation easement--from the title company, from 2 different surveyors...no luck so far. How hard can it be?!

  9. #9
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,376

    Default Re: Overlapping Easements: Access and Irrigation

    I thought it seemed odd, too. So if that is the case, would the neighbor who granted the access easement for our property in 1994 be able to grant the OTHER (tree-planting, butthead) neighbor the right to now dig up 6' of our driveway and turn it into an irrigation ditch?
    No, I think we already covered that, if the access easement existed first.

    How hard can it be?!
    Hard to say. It can be difficult. It can be impossible if it was never granted!

    The title company has already been engaged for the research work, apparently, so I'd lean on them. But time does not seem to be much of an issue unless you "make" your neighbor move his trees.

  10. #10
    Join Date
    Jun 2009
    Posts
    14

    Default Re: Overlapping Easements: Access and Irrigation

    It seems to me that the center of the whole matter right now is that irrigation easement. It's supposedly referenced on a survey done in March 1994, and our access easement was granted in June 1994. I've called that survey company twice to see if they can give me a copy or even the book/page of the recorded easement, and so far they aren't able to. But they would have HAD to have it, right? Since they showed it on their survey? I mean, it's not as if a surveyor just arbitrarily decides to show an easement on a property?!

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