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  1. #1
    Join Date
    Sep 2010
    Location
    Mississippi
    Posts
    6

    Default Maintenance Responsibility and Heavy Commercial Traffic Over Residential Easement

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

    I am the property owner and the grantor of a 15' wide by 1000+'* long easement. The person who was granted the easement has indicated that he plans to start selling xxxx off his property (Creating a business requiring heavy commercial vehicles). He has not contacted me about using his easement (across my property) for commercial reasons AND in the past has told me that I need to "fix" the road meaning it needed maintenance and felt like I should be the one to perform the maintenance, so i have two questions.

    1- Who is responsible for maintenance on an easement if not indicated on the easements warranty deed?

    2- Does he have the right to use the easement for commercial use (Entrance to business that requires heavy commercial vehicles)?

    I appreciate any and all answers, but please cite the statute, code, law or case law so I can read it myself.

    Exact wording of warranty deed:

    For and in consideration of [price] the receipt of all of which is hereby acknowledged, we [property sellers names] do hereby bargain, sell, convey and warrant unto [property purchasers names], as joint tenants with the right of survivorship and not as tenants in common, that certain piece or parcel of land situated in the county of Xxxxxxx, State of Mississippi, and described as follows, to-wit:
    [Property description here]

    For the same consideration hereinabove recited, the grantors herein do hereby grant and convey unto the grantees herein, as joint tenants with the right of survivorship and not as tenants in common, an easement over and across the North 15 feet of the [Property description here] for the purpose of ingress and egress to said property. This conveyance is made subject to all prior reservations of any oil, gas and other minerals.

    Witness our signatures, this the xx day of Xxxxxxx of 19xx.
    [Sellers signatures]


    *Footage changed to help protect my identity.

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Maintenance Responsibility and Heavy Commercial Traffic Over Residential Easement

    It's indicated here that "the dominant owner of an easement has the burden of maintenance and repair, and to this end has an implied secondary easement to enter the servient property to perform the necessary maintenance and repair."

    I can't speculate as to what he's going to allege in relation to the understanding that existed at the time of the easement, or whether what he paid is consistent with personal or heavier use. I can say that you did not include any restriction in the language of the easement that would limit its use to personal use by the owner.

    You can research statutes here and case law here or here (among other places).

  3. #3
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Maintenance Responsibility and Heavy Commercial Traffic Over Residential Easement

    as Mr.K stated, the lack of definition in the grant does not preclude any particular use nor does it allow it. The land in question often helps to define intent. Simply put; if you grant an easement for ingress and egress to a business, you can expect business related traffic. If the property the dominant tenant owns was obviously commercial in nature in some way, his argument would simply be; it was known this was a commercial property and therefor servient tenant was aware there would be a commercial use of the easement.

    Without knowing what **** are (I suspect it's trees), the conversation predating the grant could be critical.

    as well, the intent of the grantor is generally considered to be a defining point of the grant. If you can argue you intended the easement to be for personal use only, it generally holds some weight.

  4. #4
    Join Date
    Sep 2010
    Location
    Mississippi
    Posts
    6

    Default Re: Maintenance Responsibility and Heavy Commercial Traffic Over Residential Easement

    At the time the easement was granted, around 1972, he only owned 3 acres which was part of my property and the easement was a requirement of his financial institution to build his house (mortgage), there were no plans for and never has been a business located on his property for the past 38 or so years, at least anything that would require any commercial vehicles.

    Around 12 years ago, he obtained the additional 37 acres which was timberland, but we are NOT talking about trees being harvested, the trees have already been harvested by him and that did not bother me other than him not doing any maintenance on the road. Now he is planning on selling dirt (a dirt pit) which in my opinion would result in much more traffic down my driveway.

    My driveway is designed for a single vehicle and in majority of places, there are no places to pass. There are also three culverts down this driveway that are very old and we already have problems with them washing out during heavy rain.

  5. #5
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Maintenance Responsibility and Heavy Commercial Traffic Over Residential Easement

    not sure if you shot yourself in the foot or not with allowing the trees to be harvested via the easement. He can argue you allowed commercial use for the trees so he should be allowed to use it for the dirt.

    Could be a struggle for you.

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