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Can You Change the Location of a Private Road

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  • 01-28-2017, 04:57 PM
    horses2
    Can You Change the Location of a Private Road
    My question involves real estate located in the State of: Maryland

    There is a "road" thru my property. many years ago in response to a trespass lawsuit against another landowner, courts ruled that this "road is "open to the public for travel", apparently covering all property owners that have this "road running thru their property.
    the portion that traverses my property is mentioned/locates the road at both ends of the property, bit does not locate the "road" anywhere else. a note here, every other property owner has the "road at the edge of their property.

    My question is:

    Can I relocate the portion of the road not specifically located by deed reference? do I have rights to install traffic calming devices to deter speeding or other unsafe/disrespectful use? And based on the court wording, would the public have the right to walk dogs, ride horses, jog, etc? Right now, there seems to be a perception that the court order allows my property to be used as a public park.

    thanks,
  • 01-29-2017, 05:56 AM
    budwad
    Re: Can You Change the Location of a Private Road
    The location of the road cannot be changed without agreement of the dominant and servient tenements. In your case, the public is the dominant tenement. That also includes others that are not property owners abutting the road. That, I believe, means that a court would have to represent the interests of the public to come to any agreement to relocate the road.

    Quote:

    The general rule is that an easement may not be relocated without the consent of the owners of both the dominant and servient tenements. In Sibbel v. Fitch, 182 Md. 323, where it was contended that a road to a family graveyard had been relocated and used for thirteen years with the tacit acquiescence and consent of the defendants, we said (pp. 328, 329):

    "When a right of way reserved in general terms has been definitely located and the owner of the dominant tenement has acquired vested right in the way as located, the general rule is that the location of the way can be changed only by agreement of the owners of the dominant and servient tenements.
    It doesn't matter that the road is not described fully in deed or grant by the court.

    Maryland common law is well settled in this regard.

    Quote:

    Sibbel v. Fitch, 34 A. 2d 773 - 1943
    Once a general easement has been located and fixed by use over a long period of time, it becomes "as definitely established as if the grant or reservation had so located it by metes and bounds and the location of the right of way as thus defined can only be changed by agreement [.]"
    You cannot impede the use of the road with calming devices. But without reading the full decision of the court, we can't say what you can or cannot do. You could likely be able to post signs (speed limit and no trespassing on the boundary).

    Quote:

    "road is "open to the public for travel",
    While travel is not recreation, walking dogs, ride horses, jogging could be. But the public only has the right to the easement, not your property outside the boundary of the easement. They can travel across your property as long as they stay on the easement.

    You should consult with a local attorney who can read the court decision that granted the public the right to use the road. They can advise you about what your options may be.
  • 01-29-2017, 06:33 AM
    horses2
    Re: Can You Change the Location of a Private Road
    I have aerial photos that show the "road" has been relocated several times prior and after the court ruling. the genesis of this case was a property owner was preventing other property owners from accessing the main road via his property. he accused them of trespass. they took him to court, the judge ruled against him, stating no trespass, and also ruled that the "road" was "open to the public for travel". my thought is that this blanket inclusion of other property owners without their knowledge or participation was a bit far reaching.
    would this be an eminent domain situation as private property was taken for public use? I have approached the county about this but they disavow any responsibility for maintenance or upkeep claiming it is a private road. however it is private in ownership only, as I nor any of the other property owners can control who uses it.
    I cannot believe in this day, that a private property owner can be forced, thru a court case he had no opportunity to be represented in, to give up private property & private property rights without compensation.
  • 01-29-2017, 07:34 AM
    budwad
    Re: Can You Change the Location of a Private Road
    I understand your frustration. You own the property and you believe that you have a right to do as you please with it. Unfortunately, when you buy property that has servitude attached to it, you give up some of those property right to the benefit of others or other properties. A granted easement is a non-possessory right to use someone else's property. An easement right can be established by an express grant (in a deed or a subdivision), it can be implied by facts and prior use of the land, it can happen by prescription, and the list does go on. Once the right is established, it is likely appurtenant to the land and it is forever and binding on successors unless extinguished by agreement or a judgment of a court. I assume you bought your property with the full knowledge that an easement cut across your property.

    We don't know when the original easement was granted. We don't know what the intentions of the grantor and grantee(s) was at the time. We don't have the transcript or judgment of the court to read, who testified, why the court decided the easement was public, why the decision was not appealed, so we can't say with any certainty what can be done. We have given the common law in your state about the issues you asked about and suggested you consult with a local attorney.

    This is not an eminent domain situation. Eminent domain is when the government or an agent (authorized by a legislature (a public utility)) takes land for public use. Here, the government did not take your land. You still own it.

    I still don't understand why the court granted use to the public. Does this road connect two public highways where the public cuts through from one road to the other? That might make some sense.

    What you and the other servient estates can do (if you are in agreement) is to go to the County, or the municipality, and offer the road for dedication to public use. You can research that yourself. But what it does is offer the road into the municipal or County road system. If they accept it, it would become a public road (not private) and the jurisdiction will be responsible to maintain the road.
  • 01-29-2017, 05:01 PM
    horses2
    Re: Can You Change the Location of a Private Road
    we don't understand the court decision either. this "road is basically a 10 ft driveway. the portion that runs thru my property is just 2 dirt ruts. not even a dirt road, not then, not now. in the court decision, there is no mention of upkeep. it is our opinion that the judge kinda went too far, and assigned the intention of providing access for property owners to the "public, not looking at the inevitable population growth, and increased traffic.
  • 01-30-2017, 07:15 AM
    budwad
    Re: Can You Change the Location of a Private Road
    It may seem, in your opinion and perhaps the other parcel owners that the judge went too far , but finding that the easement (the private road) was public has to be based on the evidence that was presented and the common law. It is not possible that the court would use the word public to denote the rights of dominant estates that abut the road. It would be based on evidence that the public used that road for at least 20 years and gained a public easement by prescription.

    You have yet to answer the question whether or not this road connects two public highways. The fact that it is a meandering two rut road doesn't make much difference.

    Do you know if the case was appealed?

    I researched the Maryland court decisions and found that when the court finds a private road to be public it is primarily based on prescription.

    Here is one such case: Garrett v. Gray, 266 A. 2d 21 - Md: Court of Appeals 1970 It is a 1970 court of appeals case. Sounds a lot like your case.

    You should read it. It's a bit long so if you want to get to meat of it, scroll near about mid point.
  • 02-19-2017, 05:51 PM
    horses2
    Re: Can You Change the Location of a Private Road
    Thanks for the case reference. The road does connect 2 county roads. In doing a bit more deed reading, it appears the road was created to allow easier passage from another farm to the main road. However, when this was created, one of the 2 roads was not yet created, and the main route that exists today was not yet built. as a side note, there were only 2 properties in existence when this road was "created". now there are 13 separate lots, with my farm being in the exact middle of these properties. So, it would appear, that this road was created due to a lack of sufficient, adequate public roads.
    the case was not appealed. it is important to note that the case did not involve my property nor the property owners at the time. the case was between a landowner at the main road, and property owners that were landlocked unless they accessed the main road via his property.
    I contend that since the court basically declared the road a public road, then the county should be obligated to take it over compensating the owners. right now we have all the "problems" associated with living on a public road, with none of the "benefits".
  • 02-20-2017, 05:13 AM
    budwad
    Re: Can You Change the Location of a Private Road
    Quote:

    Quoting horses2
    View Post
    Thanks for the case reference. The road does connect 2 county roads. In doing a bit more deed reading, it appears the road was created to allow easier passage from another farm to the main road. However, when this was created, one of the 2 roads was not yet created, and the main route that exists today was not yet built. as a side note, there were only 2 properties in existence when this road was "created". now there are 13 separate lots, with my farm being in the exact middle of these properties. So, it would appear, that this road was created due to a lack of sufficient, adequate public roads. ".

    You should look for recorded (with the county) plats or surveys of the subdivision that created the additional 11 lots. If there is any showing that the road is on the plat and is public, then it creates a dedication to public use without prescription.


    Quote:

    Quoting horses2
    View Post
    I contend that since the court basically declared the road a public road, then the county should be obligated to take it over compensating the owners. right now we have all the "problems" associated with living on a public road, with none of the "benefits".


    All of the facts matter and we don't have them. I again suggest that you consult with an attorney for your options. You may be able to offer the road to the county or the municipality for dedication. If it is accepted, they will maintain it. However, the road would likely have to be brought up to county standards before acceptance.
  • 02-20-2017, 08:36 AM
    horses2
    Re: Can You Change the Location of a Private Road
    the lots were taken off over quite a few years, individually. the most recent was only 3 years ago. I have spoken to several local attorneys, I get the impression that while they are sympathetic, they seem to have "career concerns" about taking on this matter.
  • 02-20-2017, 09:22 AM
    budwad
    Re: Can You Change the Location of a Private Road
    Quote:

    Quoting horses2
    View Post
    the lots were taken off over quite a few years, individually. the most recent was only 3 years ago..

    Maryland has subdivision statutes and the counties all have ordinances that require any subdivision to be recorded by plat. So it doesn't matter when the land was subdivided say within the last 60 years or so. I don't know what county you are in and some counties have different requirements. Here is the state statute. You should still check the county records to see what is recorded.

    Quote:

    Quoting horses2
    View Post
    I've spoken to several local attorneys, I get the impression that while they are sympathetic, they seem to have "career concerns" about taking on this matter.

    That suggests to me that there is a political component over concerns with the state planning commission or perhaps a county or municipal planning board in connection with the areas they practice in. I would still look for an attorney that doesn't have career concerns . You need to look in other counties. There is of course, no guarantees that there is anything that is to be achieved less the status quo. I would still try. I would want a clear understanding of the entire history of this road if I were in your shoes. And I would want to know that everything was done in accordance with the law.

    There is a common law doctrine that once a servitude is created by a granted easement or otherwise, that servitude cannot be increased to a greater burden than when granted. It appears that in your case (and with any other servient estate) it surely has.
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