Is It Possible to Restrict an Existing Easement Due to Abuse of It
My question involves court procedures for the state of: Oregon
I have an irrigation ditch through my property. It's been there since 1935. The irrigation district ("District") has abused the terms of the easement for longer than I know. The easement form, recorded against the property is a very simple one page statement which even allows room for signatures. In short, it states that it is 30 feet in width, 15 feet both ways from "the center line" of the ditch, and there's a sentence which merely states that the easement is "to maintain a road and an irrigation ditch." That's it.
When the District installed the ditch and the maintenance road, they had to build a steep bank because my property is quite steep. The ditch, road and support bank take up all of the 30'.
Down through the decades, the District has come through with an excavator every year to clean the ditch. In so doing, they have made a mess. They simply dumped the excess soil from the ditch onto the road and over the bank. A couple of years ago I hired a cat, dump truck and loader to come in and remove all of that dirt, grading the road back to where it was, and even grading that bank. I shrunk them back down to 30 feet and leveled my land out below that bank. I made it useful again.
I then wrote them a letter, attaching a copy of the easement, and I told them that I had just spent $5,000 cleaning up their mess, and that they were never again to dump on my property. Not the road and not over the bank. I reminded them that I still own the property, that they merely have a limited easement, and that to allow sediment to run down that bank which would then, due to slope, cause it to run out beyond the 30 feet, would be a trespass. I likened it to me walking past their house and dumping mud on their lawn or driveway. I also pointed out that the easement says they will maintain a road, not trash one.
When the ditch was first built, the District gave each landowner a bridge to compensate for cutting land into two parts, and the road is the access for the landowners to those bridges. The bridges are no longer accessible, but mine is now due to my actions.
I built a second driveway onto my property below the ditch, and now have that nice flat area I can use. NOW the District has begun to use that drive and my land below as a staging area. Today there were 3 District pickups parked on my property, well outside the 30 feet. As mentioned, I have given them constructive notice to stay within their 30 feet.
So, I walked down below and there was one District employee there. I asked him to move the trucks off my property. He got angry (which I wasn't) and walked right past me, bumping me hard with his shoulder. He then proceeded to "instruct" me that they have an easement and they can do anything the want. I told him no, he was guilty of 2nd degree trespass and that I could arrest him using force if necessary. Link LINK LINK
When the guy finally removed the last pickup, he aimed it at me, spinning the tires and then swerved away in an obvious threat.
NOW MY REAL QUESTION. After decades of abusing all of the landowners by trashing their property, and after literally being assaulted today, (no I didn't call the sheriff's office. They would have just taken a report over the phone and done nothing, but I will call them tomorrow just to get this on record):
Is there any hope that I could get a court to restrict their access without giving me notice, or maybe even let me put up a gate which I could unlock? Is there any point at which someone so abuses an easement that he can lose some rights?
Is there anything I can do to enforce the terms of the easement?
Thanks!
Re: Is It Possible to Restrict an Existing Easement Due to Abuse of It
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Is there anything I can do to enforce the terms of the easement?
yes, take the issue to the courts.
btw:
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"to maintain a road and an irrigation ditch."
means they are allowed to do this, not required to do it. If they choose to trash the road they built, it is their right. You would have a possible action if they damage your property in general such as they are but you have no right to demand they maintain their own roadway.
Re: Is It Possible to Restrict an Existing Easement Due to Abuse of It
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jk
yes, take the issue to the courts.
btw:
means they are allowed to do this, not required to do it. If they choose to trash the road they built, it is their right. You would have a possible action if they damage your property in general such as they are but you have no right to demand they maintain their own roadway.
I'm not so sure. The fact that they put bridges across the ditch for the landowners to use, and to access via the road means to me that this part is also for the landowner.
Also, when they trash the road by dumping dirt onto it from ditch cleaning, they are still trashing my property. I still own it. Also, due to terrain, some of that mud runs down the bank and outside of the 30' - a clear trespass.
Over about 75 years with annual cleanings, they dumped 500 yards of dirt on that road and over the bank. I know that sounds like a lot, but that's only about 7 yards per year and I have about 100 yard length of ditch. It took a cat, loader, and about 40 dump truck loads to remove their junk at a cost to me of about $5k.
What I need to know is what process to use to ask a court to allow me to put up a gate so I can control their actions, or to order them to cease and desist trespassing, or something. I don't want to sue for money or I would have sued for the $5k which I probably should have. Because they do it every year, they should have a problem with SOL.
Maybe I should just put up a locked gate and let them sue me. ??
Re: Is It Possible to Restrict an Existing Easement Due to Abuse of It
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cmre3456;619228]I'm not so sure. The fact that they put bridges across the ditch for the landowners to use, and to access via the road means to me that this part is also for the landowner.
so, attempt to enforce the verbiage in the easement. Do you see anything in there requiring them to build and maintain a road? As I read it, the road is for the purpose of maintaining the ditch which means, it is up to them to build it or maintain it, at their discretion. If you believe otherwise, and since they have not been receptive to your demands, make your demands in court.
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Also, when they trash the road by dumping dirt onto it from ditch cleaning, they are still trashing my property. I still own it.
You might win an argument they must remove the dirt removed from the ditch but I believe that is as far as you will get with the road issue.
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Also, due to terrain, some of that mud runs down the bank and outside of the 30' - a clear trespass.
agreed
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Over about 75 years with annual cleanings, they dumped 500 yards of dirt on that road and over the bank. I know that sounds like a lot, but that's only about 7 yards per year and I have about 100 yard length of ditch. It took a cat, loader, and about 40 dump truck loads to remove their junk at a cost to me of about $5k.
this has been happening for 75 years? Guess what: past practice with no formal complaints is going to go a long way in court...for them.
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What I need to know is what process to use to ask a court to allow me to put up a gate so I can control their actions,
You can't. You do not have the right to restrict them from the easement.
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or to order them to cease and desist trespassing, or something.
go to court and seek injunctive relief demanding they remedy whatever you believe they must do.
I don't want to sue for money or I would have sued for the $5k which I probably should have.
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Because they do it every year, they should have a problem with SOL.
actually, you have more of a problem due to the fact they do this every year, for 75 years, and nobody has ever done anything about it.
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Maybe I should just put up a locked gate and let them sue me. ??
they likely won't bother. They will simply cut the lock and maybe remove the gate and let you sue them if you believe you have been wronged.
what you need to do if you do not want to hire a lawyer at this time is attempt to start a dialogue with them. Coming at them in a fury is often rebuffed. You do get more flies with honey than vinegar in this step of the process. You can always escalate your actions and demeanor but going backwards doesn't happen. Contact whomever is in charge of these cleanings and speak with them about your complaint. Attempt to avoid threatening them with legal action. They are used to it and if they believe they are correct will simply tell you to go ahead and sue them.
You might also find out that they didn't really think there was a problem with their actions since nobody said anything about it for 75 years. They might actually agree with a proposal for reasonable demands.
their use of your new drive, which I presume is not part of the easement, is where you can make actual demands and expect them to be complied with. They have absolutely no right to use any of your land outside of the easement. If it was me, I would make it clear that such use was not allowed without specific permission from you which, at the time, is not given. Their use of land outside the easement is a trespass and can be dealt with in a civil court. It might be able to be dealt with in a criminal court IF the local prosecutor chose to take it on. I suspect they would suggest you seek civil remedies.
Re: Is It Possible to Restrict an Existing Easement Due to Abuse of It
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jk
so, attempt to enforce the verbiage in the easement. Do you see anything in there requiring them to build and maintain a road?
Yes. They were required to build the road and to provide each property owner with a bridge from that road to cross the ditch. This was to benefit the owner because the property was cut in two by the ditch. Those bridges were wonderfully built on concrete piers using all steel except for heavy wooden planking. They are all still there. They will support cars, pickups and tractors, etc.
Also, I'm not asking them to maintain it. I'm asking to not trash it and make it impassible by all but a track laying machine such as their excavator. I "maintained" it with my own money and it's in good shape now. Remember. I still own that road, and I also have the right to use it.
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As I read it, the road is for the purpose of maintaining the ditch which means, it is up to them to build it or maintain it, at their discretion. If you believe otherwise, and since they have not been receptive to your demands, make your demands in court.
See above.
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You might win an argument they must remove the dirt removed from the ditch but I believe that is as far as you will get with the road issue.
So far they have complied with my request to stop dumping on the road or over the bank. However, they act like they think I'm crazy. One day, after I paid to clean it all up, some of the workers were there. They asked me what I expected them to do with dirt they remove when cleaning the ditch. I told them that since I had made, and intended to keep the road passable, and that because their easement is just 30' wide and any mud running down the bank and outside of the easement would be a trespass, I guessed they should bring a dump truck. I told them that's what I'd used to get rid of it. They laughed at me like "What? Bring a dump truck?" Yep, and I'd just spent $5k having it cleaned up and hauled off.
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this has been happening for 75 years? Guess what: past practice with no formal complaints is going to go a long way in court...for them.
I think you're right. However, something is new. I spent the money to clean it up, reduce everything to 30', smooth up the road and the sides of the bank and now I want it kept that way. I also told them not to bother thinking prescriptive easement or adverse possession. In Oregon that takes ten years of use. Since they did it every year, adding to the width of the mud they dumped, there would be no way to prove what it was two years ago, much less ten. The standard of proof for prescription is clear and convincing.
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You can't. You do not have the right to restrict them from the easement.
go to court and seek injunctive relief demanding they remedy whatever you believe they must do.
That's what I wanted to hear. Somehow it just wouldn't come to me. :wallbang:
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what you need to do if you do not want to hire a lawyer at this time is attempt to start a dialogue with them. Coming at them in a fury is often rebuffed. You do get more flies with honey than vinegar in this step of the process. You can always escalate your actions and demeanor but going backwards doesn't happen. Contact whomever is in charge of these cleanings and speak with them about your complaint. Attempt to avoid threatening them with legal action. They are used to it and if they believe they are correct will simply tell you to go ahead and sue them.
I've truly tried that. I've actually tried to set up a meeting with management and been rebuffed.
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their use of your new drive, which I presume is not part of the easement, is where you can make actual demands and expect them to be complied with. They have absolutely no right to use any of your land outside of the easement. If it was me, I would make it clear that such use was not allowed without specific permission from you which, at the time, is not given. Their use of land outside the easement is a trespass and can be dealt with in a civil court. It might be able to be dealt with in a criminal court IF the local prosecutor chose to take it on. I suspect they would suggest you seek civil remedies.
Probably, but I do have the right to arrest them using force if necessary. I wouldn't do that, but I wanted them to "know that I know" that I could.
Thanks for the help. I'm going to file a pleading for injunctive relief. I can't believe I was that brain dead.
Re: Is It Possible to Restrict an Existing Easement Due to Abuse of It
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cmre3456;619252]Yes. They were required to build the road and to provide each property owner with a bridge from that road to cross the ditch. This was to benefit the owner because the property was cut in two by the ditch. Those bridges were wonderfully built on concrete piers using all steel except for heavy wooden planking. They are all still there. They will support cars, pickups and tractors, etc.
well, nothing you have presented here even suggests this. If you have information supporting such a claim, it could change everything. I can only go on what I'm given.
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Also, I'm not asking them to maintain it. I'm asking to not trash it and make it impassible by all but a track laying machine such as their excavator. I "maintained" it with my own money and it's in good shape now. Remember. I still own that road, and I also have the right to use it.
No, you do not own the road. You own the dirt under it. They own the road and from what you have posted, have no duty to maintain it or to make it usable for others.
again, nothing you have presented here supports your argument.
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I think you're right. However, something is new. I spent the money to clean it up, reduce everything to 30', smooth up the road and the sides of the bank and now I want it kept that way. I also told them not to bother thinking prescriptive easement or adverse possession. In Oregon that takes ten years of use. Since they did it every year, adding to the width of the mud they dumped, there would be no way to prove what it was two years ago, much less ten. The standard of proof for prescription is clear and convincing.
there is your posting here. You claim this has been happening for 75 years. Sure sounds like an adverse possession to me (although I have not looked up the other requirements of such in Oregon)
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That's what I wanted to hear. Somehow it just wouldn't come to me. :wallbang:
sometimes frustration clouds the mind.
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I've truly tried that. I've actually tried to set up a meeting with management and been rebuffed.
then it would appear court is in your future.
Re: Is It Possible to Restrict an Existing Easement Due to Abuse of It
FYI, here's what it looks like now.
The magenta arrow shows a steep bank from a part of our lawn down to the water.
The blue lines are the maintenance road. It is side sloped to the downhill for drainage.
The red arrow is the steep support bank for the road and ditch.
The yellow arrow is my new access drive which the District has apparently decided is theirs. It leads onto the larger area where I had dirt removed, and everything was graded.
This picture can't show how steep it is. I'd just like you to see how much work I had done, terracing all of this back. Even the paved road is pretty steep. Only the home and lawn areas have been made fairly level. Any mud placed anywhere will flow downhill.
http://i629.photobucket.com/albums/u...6/hs2acopy.jpg
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jk
well, nothing you have presented here even suggests this. If you have information supporting such a claim, it could change everything. I can only go on what I'm given.
Sorry, I should have spelled that out better earlier. Yes, the easement states that they will (and they did) build the bridge so that the land owner could cross the ditch. How's the landowner to cross if he can't use the road?
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No, you do not own the road. You own the dirt under it. They own the road and from what you have posted, have no duty to maintain it or to make it usable for others.
Well, that would be for the court to decide. The District has a limited easement on land that I own. There can be no mistaking that the road is for the joint use of the District and the landowner.
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there is your posting here. You claim this has been happening for 75 years. Sure sounds like an adverse possession to me (although I have not looked up the other requirements of such in Oregon)
Clear and convincing, what is the width? What is the description, for ten years? The courts start out by disfavoring easements by prescription. That's where they start. Any adverse claim must be clear and convincing, and show the place and the amount of land. Time isn't enough although it is an element. The exact spot is also a requirement. One must be able to write a legal description of it, and prove it for ten consecutive years.
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sometimes frustration clouds the mind.
It did. It really did, and I thank you. My goal is to convince them that they can't use my new driveway, nor can they use that lower piece as a staging area. They also can't dump mud on the road because gravity will pull it down the support bank and out onto my lower property.
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then it would appear court is in your future.
Yep. Thanks again.
Re: Is It Possible to Restrict an Existing Easement Due to Abuse of It
For starters, I'm just going to say that we have a couple of experienced posters on this board in this thread.
I think that a lot of the legal stuff has been adequately addressed, so I'm only going to bring up some other issues. I'm not intending to intrude on any of that.
For starters, the OP has not gone to elected representatives as far as we know. Any "district" under the drainage laws are also subject, somewhere, to elected representatives. I'm not getting any sense that the appeal to the elected representatives has been tried.
I am also puzzled by the fact that the OP disputed the right of the "District" and it did not immediately retreat to higher management for further advice. The point is that in my experience, once a dispute is initiated, most organizations require as a matter of policy, to pull off of a job and let someone beyond the pickup truck to do the next negotiations.
Re: Is It Possible to Restrict an Existing Easement Due to Abuse of It
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LandSurveyor
For starters, I'm just going to say that we have a couple of experienced posters on this board in this thread.
I think that a lot of the legal stuff has been adequately addressed, so I'm only going to bring up some other issues. I'm not intending to intrude on any of that.
For starters, the OP has not gone to elected representatives as far as we know. Any "district" under the drainage laws are also subject, somewhere, to elected representatives. I'm not getting any sense that the appeal to the elected representatives has been tried.
I am also puzzled by the fact that the OP disputed the right of the "District" and it did not immediately retreat to higher management for further advice. The point is that in my experience, once a dispute is initiated, most organizations require as a matter of policy, to pull off of a job and let someone beyond the pickup truck to do the next negotiations.
Very good points. Thank you.
When I first cleaned up the property, I sent the manager of the District a registered letter stating that I had done it, that their usage had been returned to 30', how much I spent, etc. I explained that any more dumping would run downhill and be a criminal trespass and that I was asking them never to do it again. I got no reply, but they've never done it again. As perhaps you can see, I keep the ditch clean of blackberries etc. and so far their excavator has just driven on the road past the end of my property and then begun to clean. It's really the money I spent, and my concern for the future over what they do to everyone else and what they did to my property which concerns me, especially since they didn't answer me.
The other concern is their use of my "new" facility below as a staging area for equipment. When I go down there and politely, and I mean politely, tell the workers they can't park there, they argue with me. They tell me they have an easement and can do anything they want. I've had no luck trying to tell them that their easement is only 30' wide, and I've had no response from the District.
I hope I'm not coming across as a crank. I just want the road and bank neat - which I took care of - and drivable. I also don't want more mud running out of the 30' and beginning to trash the bank and the area outside the 30' again.
I also don't want them using the lower drive or land because when it's wet, they leave messy ruts and other tracks in it and then I have to take my tractor down there and smooth it out.
I suppose if they answer to someone it would either be the state, which might be the public utilities commissioner? I do know that their trucks have public license plates on them. The District must be "quasi-governmental." Our public plates on all city, county and state rigs are easy to spot.
I suppose if they answer to someone in the county, it would be the three county commissioners.
I'll look into it. I know the state PUC was awesome in helping with the power company when we built this house. The power company had a ridiculous idea of how to mess things up bringing in power and I had a better idea. The PUC forced the power company to do it the best way - the way I wanted it - nice and simple.
Thanks for the tips. I'll get on it.
Re: Is It Possible to Restrict an Existing Easement Due to Abuse of It
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When I first cleaned up the property, I sent the manager of the District a registered letter stating that I had done it, that their usage had been returned to 30', how much I spent, etc. I explained that any more dumping would run downhill and be a criminal trespass and that I was asking them never to do it again. I got no reply,
That's all good to know. It would have been better to post it up in the first thread so no one has to go asking for it. We are here trying to help you and to the extent that important facts are withheld, we can't provide that help.
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I hope I'm not coming across as a crank. I just want the road and bank neat - which I took care of - and drivable. I also don't want more mud running out of the 30' and beginning to trash the bank and the area outside the 30' again.
I don't think that you are a crank at all.
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I suppose if they answer to someone in the county, it would be the three county commissioners.
That is where I would start with the complaints. I think that you have some legitimate complaints.