Can a Landowner Move a Right of Way

My question involves an easement in the state of: Maine. Part of a right of way that serves many lots has been moved around a recently sold piece of land that abuts one of the lots served. The right of way location is not described in the deeds to the lots served other than it exists. It has been in use in the same location for over 50 years. Is moving the right of way legal without agreement from all of the owners of the lots served?

sometimes. If the easement was not specifically defined and the moved easement does not alter the effective intent of the easement, it may be possible to move the easement. What has changed for you that is a problem now the easement has been relocated?

The new right of way is much steeper and being new it is still soft and prone to rutting and tire spinning. I have concerns about being able to use it during the winter. It will require much more sanding for traction than the old right of way.

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Is moving the right of way legal without agreement from all of the owners of the lots served?

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Probably not. The long continued use should quiet any dispute as to the legal location, even if there were a description, and it located the road elsewhere. Long quieted locations are not easily moved. Fifty years is more than adequate in any state.

Get a local real estate attorney asap and get the problem under resolution.

well, we do know that it is specifically allowed per statute in Idaho so we do know that 50 years is not adequate to prevent the movement of an easement there so we do know it is not adequate in all states. I could find nothing in Maine statutes that addresses this though.

I cannot see a practical argument why it couldn't be moved as long as the dominant tenants are not adversely affected by the move. In this situation, as it stands, obviously they are affected so on that one point alone, it would not be proper to move it.

I think that we have already discussed the Idaho law (55-313) in an earlier thread.

It dates from 2005 and speaks as if it is retroactive, but retroactive application is disfavored by the courts for a number of reasons.

It has not yet been tested in court apparently.

Any law which attempts to disrupt the long established common law principles of real estate will come under some extensive scrutiny in court.

I cannot imagine the mischief of a statute which allows every servient tenant to arbitrarily alter an access easement location of a dominant tenant without express permission. Kind of wrecks the whole dominant-servient concept. It would get title companies off the hook for insuring any access easement.

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It would get title companies off the hook for insuring any access easement.

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Not at all. I am not saying the easement could be discontinued. All I said is that with no stated specific location of an easement, as long as the same access is allowed without injuring the dominant tenant, there is no harm (whether it be financial or any other type of injury) to the dominant tenant and as such, I see nothing unreasonable with the easements location being moved.

That is what the Idaho law is requiring and it really makes sense, to me at least.

In this case, apparently not only is the new easement sound like nothing more than a muddy trail where the original easement is somewhat dependable as a roadway, the hill also appears to be a material change that does cause additional problems or concerns. As such, I can understand the refusal to accept the new location in place of the old one. I don't know if those deficiencies can be remedied or not. If not, then I would agree the easement could not be relocated.

Of course, if the location of the easement is specifically located, then I have no problem with the location not being able to be moved without the permission of all parties involved.

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Of course, if the location of the easement is specifically located, then I have no problem with the location not being able to be moved without the permission of all parties involved.

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After 50 years of acceptance, a court will look to the intent of the parties as to location and they will only have one fact to look at.

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That is what the Idaho law is requiring and it really makes sense, to me at least.

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Of course, if the location of the easement is specifically located, then I have no problem with the location not being able to be moved without the permission of all parties involved.

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The Idaho law contains no such exception. It arbitrarily assigns to the servient tenant the right to relocate the easement regardless of the legal description or the rights of the dominant tenant who is automatically put in the position of having to go to court to preserve and defend his rights.

As the dominant tenant in Idaho, you are going to be required to go to court to defend your property, which situation had no concept in law prior to the passage of the statute in 2005.

The state and federal governments have no such rights against individual land owners, who are protected by due process.

=LandSurveyor;479091]After 50 years of acceptance, a court will look to the intent of the parties as to location and they will only have one fact to look at.
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then the OP's only option is to head to court and file suit. If the judge doesn't allow the moving of the easement, as long as it does not cause the dominant tenants injury or the servient tenant is required to cure any injury caused, I'll buy you dinner. Fair enough?

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Quoting marklisa4953

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

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Quoting LandSurveyor

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The Idaho law contains no such exception.

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How is an Idaho statute relevant to the question?

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Quoting aaron

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How is an Idaho statute relevant to the question?

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in itself, it isn't. There was a discussion awhile back where Idaho was the state involved. They do allow the alteration at will by the servient tenant as long as there is no reduction of use. LS had stated:

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Fifty years is more than adequate in any state.

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and I had responded with the Idaho situation so we know it is not the case in all states.

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then the OP's only option is to head to court and file suit

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Not at all. There other obvious approaches.

One would be a demand letter from an attorney requiring the return of the easement to it's lawful location and condition from it's currently unacceptable location and condition. I would start with that.

The op can also reopen the easement and return it to it's established use, and then sue the trespasser in small claims court for the costs of doing so.

An Idaho law dating from 2005, would have no effect in Maine. Until there is some case law on this from Idaho, it's all just argle bargel.

Typically an easement which contains no specific legal description is termed a blanket easement but a blanket easement is in the favor of the dominant tenant who may locate anywhere on the described parcel. We are dealing with the opposite concept here.

I'm not finding any case law in Maine or anywhere else (that would be any of the 50 states) which shows the arbitrary right of a servient tenant to move an established deeded easement location without the express permission of the dominant tenant. I am talking about ingress egress easements and rights of way only and not conservation, irrigation, utility, or other types of easements.

And jk, I appreciate the dinner offer, but there is no need to await the outcome of the op's court case, if any. Just correct me by showing some case law which supports the unlimited right of a servient tenant, anywhere, to arbitrarily move an established and deeded ingress egress easement without the permission of the dominant tenant. I try to learn new stuff every week. I will be happy to travel to wherever you are and buy dinner for you and yours.

And I do need to get out more!

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One would be a demand letter from an attorney requiring the return of the easement to it's lawful location and condition from it's currently unacceptable location and condition. I would start with that.

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which is blustering unless the OP actually intends on filing suit. May or may not work.

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The op can also reopen the easement and return it to it's established use, and then sue the trespasser in small claims court for the costs of doing so.

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what trespasser? We are speaking to the dominant tenant of an easement. There is no trespass against the OP. The servient tenant is the one that may file a trespass charge.

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An Idaho law dating from 2005, would have no effect in Maine. Until there is some case law on this from Idaho, it's all just argle bargel.

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You know I know that. It was in reference that the 50 year term was acceptable in all states. It obviously has no bearing on the situation but barring any case law from maine, we do not have any support such a situation would not be possible in Maine either.

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Typically an easement which contains no specific legal description is termed a blanket easement but a blanket easement is in the favor of the dominant tenant who may locate anywhere on the described parcel. We are dealing with the opposite concept here.

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no comment.

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I'm not finding any case law in Maine or anywhere else (that would be any of the 50 states) which shows the arbitrary right of a servient tenant to move an established deeded easement location without the express permission of the dominant tenant. I am talking about ingress egress easements and rights of way only and not conservation, irrigation, utility, or other types of easements.

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but more importantly, have you found anything preventing the action?

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And jk, I appreciate the dinner offer, but there is no need to await the outcome of the op's court case, if any. Just correct me by showing some case law which supports the unlimited right of a servient tenant, anywhere, to arbitrarily move an established and deeded ingress egress easement without the permission of the dominant tenant. I try to learn new stuff every week. I will be happy to travel to wherever you are and buy dinner for you and yours.

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It's not that I'm trying to give you a hard time. It's just that barring case law showing this can't be done, I believe under the basis of an equitable action, a judge could allow the move IF the dominant tenant wasn't injured which does not sound like it is actually applicable in this case. I do not believe this would be a good case to stand on one way or the other due to the difference in the old and new location of the easement. That could kill any action as it would be inequitable to require the dominant tenant to suffer any such injury.

but to case law in any state that allowed such a relocation:

http://findarticles.com/p/articles/m...4/ai_n9181373/

Now, a bit more research has allowed me to discover this case:

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Davis v. Bruk, 411 A.2d 660, 664 (Me. 1980) (“[As] a general rule, the
location of an easement, when once established, cannot be changed or the easement
relocated without the mutual consent of the owners of the dominant and servient
estates.”).

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which does address Maine specifically.

http://scholar.google.com/scholar_ca...s_sdt=80000002

Based on that, it would appear that in Maine, they have ruled that both parties must agree to allow the relocation. I did not read the case thoroughly though and I am taking the statement at face value.

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which is blustering unless the OP actually intends on filing suit. May or may not work.

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You are correct. It is the time honored and well tested tactic by which most court cases begin - and end on the court house steps or earlier. Few cases actually ever get to court, statistically. May work. Lower cost tactics should always be tried first. There is no further obligation if it does not work.

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what trespasser?

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Under the common law any person who impedes, impairs, reduces the utility, or otherwise interferes with a deeded or long established easement right, except the dominant tenant who obviously cannot trespass on himself. A servient tenant can certainly trespass on a dominant tenant's easement.

I have never said that a servient tenant cannot change an easement under any circumstances, only that it cannot be changed arbitrarily without consent or consent provided by judicial process. The requirement for judicial review prior to a change in location at the expense of the servient tenant is reflected in court cases. I'm still unaware of any 50 year established ingress egress easement in any state, including Idaho, which has been arbitrarily relocated without consent of the dominant tenant or relocated by consent of judicial process. As for the Idaho law, we have sliced it and diced it and it still smells like an ex post facto law, although not criminal, of course.

But I think that we have gotten beyond Maine at this point and I hope that the OP is off to a resolution.

Many people read these threads. However I'm concerned that someone, a dominant or servient tenant reading this thread or others here, might think that an easement can be arbitrarily relocated by a servient tenant without conversation or consequence.

I posted the Maine decision that appears to disallow the action in Maine. Obviously it is possible in Idaho. I posted a link that will allow one to discover a couple cases where it was allowed (New York and Colorado). Here is a case in Mass that even with common law support for the requirement of all parties agree to the relocation, they accepted the Restatement's determination that it is to be allowed. http://www.lexisone.com/lx1/caselaw/...=y&l1loc=FCLOWAs well, the Restatement (Third) of Property (Servitudes) s. 4.8(3) (2000) considers the action to allow the relocation proper. Based on that support, I would say it is quite likely a possibility in any state that does not prevent the action by statute or common law and then. maybe even a possibility if not restricted by statute but only common law.

While it may have been the standard to not allow the relocation, it would appear that modern interpretation of the law is reversing that stance.

I've said as much as I'm going to say in this thread, and I think that I presented it clearly.

I'll let the readers form their own opinions and let them take it from there.

Aww, come on LS. What do you say about my last post? I believe it supports my position quite strongly. If you do not agree with the case law I cited or the Restatement, tell me why? You know I have a great respect for your take on a subject. It's just that I cannot see how the cases I presented do anything but support my position.

how about a PM at least to avoid stretching this thread any further?