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  1. #1
    Join Date
    Nov 2010
    Location
    Idaho
    Posts
    2

    Default Moving a Right-of-Way

    My question involves an easement in the state of: Idaho
    I have a piece of property in nothern Idaho that my neighbor has a right of way easement across. The paperwork states that it is 30 feet across an existing roadway(No map or coordinates were created to show where it was) and that is the only discription that it gives. County shows no past or present roadway has existed on my property. There is an "assumed roadway" that goes from dead-end road at begining of my property and ends at neighbors property at opposite end (he is not landlocked, and has alternate access to the same point from his own property). I need to know what ID Statute will let me move the "existing road" from the center of my property to the edge of it, it would still serve my neighbor the same purpose as before. The second part is that the "existing roadway" that it's on right now is only about 10 feet wide with mature trees on both sides (older than the easement), if I move it I want to clear only 15 feet at my expense. He has stated in the past that he wants to improve and widen the existing road. Can he cut down and widen / improve the road with out my approval? Improvements or maintenance is not expressed in the original right of way document.

  2. #2
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Moving a Right-of-Way

    first, if you attempt to move an existing ROW, all expenses are going to be on you. This is to benefit you so why would anybody else have to pay anything.

    Then, as to moving it; without an agreement by the dominant tenant, you are not going to be able to move it without a court fight.

    The county isn't going to show a roadway on your property unless there was a public road on your property. A reference to a roadway in an easement agreement may not be referring to a public roadway and in this case, I would have to guess it doesn't. The fact is; there is currently an established roadway (trail, path, whatever) and that is where the easement is.

    Depending on what the easement does say, when it was written and what the original intended use was, the neighbor may or may not be able to widen the roadway. Obviously he does have rights to 30 feet so if he needs 30 feet, then he has a right to use it. If he needs it wider, then that would likely be at his expense but you get the wood.

    If you want to move the easement at the least cost to you, I would suggest you offer to clear as wide as he wants up to the 30 feet in the new location in exchange for moving the easement from where it is.

    When/if you do move it; be sure to have it accurately designated and recorded in a properly written document. I would also include any rules on maintenance and use that are appropriate.

  3. #3
    Join Date
    Nov 2010
    Location
    Idaho
    Posts
    2

    Default Re: Moving a Right-of-Way

    I understand that the expenses would be mine in moving the existing roadway.

    Who is the dominant tenant - the land owner, or the easement holder? Since you mentioned that I couldn't move the roadway without the dominant tenant's approval.

    I did some research last night and found the following ID statute:
    "TITLE 55
    PROPERTY IN GENERAL
    CHAPTER 3
    RIGHTS AND OBLIGATIONS OF OWNERS
    55-313.Relocation of access. Where, for motor vehicle travel, any access which is less than a public dedication, has heretofore been or may hereafter be, constructed across private lands, the person or persons owning or controlling the private lands shall have the right at their own expense to change such access to any other part of the private lands, but such change must be made in such a manner as not to obstruct motor vehicle travel, or to otherwise injure any person or persons using or interested in such access."

    Am I correct in interpreting this as saying I can move the access without anyone's permission since it is on my land as long as I don't block current access until the new access is completed?

    I am working towards "updating" this right of way to include a description of where it is located, rules for use, and maintenance - since none of that is included in the original document dated 1971. I have been talking with my neighbor (who holds the right of way) and we are trying to come to an agreeable arrangement.

  4. #4
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Moving a Right-of-Way

    the dominant tenant is the one allowed use of the land. The servient tenant is the one that actually owns the land the easement runs on.

    "TITLE 55
    PROPERTY IN GENERAL
    CHAPTER 3
    RIGHTS AND OBLIGATIONS OF OWNERS
    55-313.Relocation of access. Where, for motor vehicle travel, any access which is less than a public dedication, has heretofore been or may hereafter be, constructed across private lands, the person or persons owning or controlling the private lands shall have the right at their own expense to change such access to any other part of the private lands, but such change must be made in such a manner as not to obstruct motor vehicle travel, or to otherwise injure any person or persons using or interested in such access."

    Am I correct in interpreting this as saying I can move the access without anyone's permission since it is on my land as long as I don't block current access until the new access is completed?
    If you do not reduce any rights the current easement provides and that means 30 feet wide and causes no additional obstructions. A simple new turn in an easement could be seen as an obstruction depending on what the intended use is. and the reference to "otherwise injure" would mean trying to give them less than what they currently enjoy. It is not a reference to causing them a bodily injury.

    So, if the new placement causes them extra work to maintain; that is an injury. If navigating the new easement is in any way more difficult; that is an injury. If it causes them additional work to connect any current roadway on their property the current easement connects to the new easement; that is an injury.

    So, basically; if the dominant tenant claims the new placement cost him any money or additional work or problems, he can contest the change. You would then be relegated to going to court to ask the courts to decide if the guy actually was injured.

    That is why I suggested you agree to build the new easement the width the dominant tenant wants and everything at your cost. He can make it a pain to move the easement if he wants to fight it. You will likely eventually win, but how much will it cost you to get there?

  5. #5
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,579

    Default Re: Moving a Right-of-Way

    I have been talking with my neighbor (who holds the right of way) and we are trying to come to an agreeable arrangement.
    That would be the best approach in this situation. The statute you quote (55-313) appears to date from 2005 and the easement dates from 1971. Although the statute appears to be retroactive, courts sometimes take a dim view of altering contracts retroactively by statute. There doesn't appear to be any case law on this yet. I wouldn't want to be the first!

  6. #6
    Join Date
    Jan 2011
    Posts
    8

    Default Re: Moving a Right-of-Way

    Unfortunately, If I can't work things out with my neighbors, my family and I may be among the first to test the idaho statute 55-313 in court. Opposing party's case depends on the statute entirely.
    I also live in Idaho- we have a deeded easement with a location description in metes and bounds in the document, which was executed in 2004. thanks to landsurveyor for the very useful information. I thought idaho 55-313 was new, but finding out it dates from 2005 is a positive discovery for me and increases the likelyhood of settlement without trial .

    The neighbors surprised us 9 months ago with a letter from their lawyer declaring intentions to relocate the drive we have deeded easement to across their parcel, and an excavation contractor beginning relocation- the same day!
    Needless to say we've filed a complaint, but pro se, since we can't afford councel .
    Neighbors proceeded with the excavation despite our objections and blocked our original drive.

    I've also read the thread regarding the Maine easement question.
    I just wanted to thank jk and landsurveryor for the very informed and helpful posts.

  7. #7
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,579

    Default Re: Moving a Right-of-Way

    Sorry to hear about your situation.

    If you cannot afford counsel, you are likely bound to lose. Many things trouble me about the statute in question, not least the ex post facto smell of it.

    If you know a contractor who will work with you, you might consider opening your original access back up with 24 hour notice and immediately suing in small claims court for damages of $4,999 per:

    http://www.courtselfhelp.idaho.gov/smclaims.asp

    It's up to you. You may well find yourself worse off per my advice but it is of course not legal advice, just something I would consider if I were in your situation.

    I don't think that the Idaho statute which has been kicked around here for several years will meet it's fate until it actually gets a thorough test in court, probably at the state appellate level. Someone will find the money to take it there.

  8. #8
    Join Date
    Jan 2011
    Posts
    8

    Default Re: Moving a Right-of-Way

    Oops, spoke too soon. looks like we won't be the first to test 55-313. Idaho courts press release: http://www.isc.idaho.gov/ISC_PressRelease_01.19.11.pdf

    keep an eye on docket 36934 pending 1/19/2011. an appeal raising questions as to interpretation, legislative intent, state and federal constitutionality of idaho statute 55-313


    Land surveryor, thanks for the tip, I'm prepared to do as you mentioned if neccessary.
    I don't really need a contractor, as I have a tractor that can handle the job of
    clearing the easement and other excavation. It's a bit more complicated than just that.

    We aren't fundamentally opposed to the new drive, or it's new location for that matter, we just insist that we get deed as we have to the other easement, with a proper survey and description,appurtenant, no cost, injury to us or our property, etc.

    If we can't get those we are just as content to continue using our current easement.
    It could easily be ironed out if the neighbors would cooperate.

  9. #9
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,579

    Default Re: Moving a Right-of-Way

    Thanks for posting that up.

    I think that we all need to follow this case. You know what I think of 55-313 so we'll see how it turns out.

    I agree with your basic premise, which I believe regards due process and a civil discussion, which was denied to you.

  10. #10
    Join Date
    Jan 2011
    Posts
    8

    Default Re: Moving a Right-of-Way

    land surveyor,
    I feel like I'm kind of hijacking the thread, but I wonder if you could tell me where
    you learned that idaho 55-313 dated from 2005? I'm sure there must be something among the session records at the Idaho legislature website, but it seems like searching for a needle in a haystack.
    I also wanted to provide some additional information that applies to idaho 55-313 for anyone else who might need it- specifically,
    idaho 73-101.

    73-101 Codes not retroactive. No part of these compiled laws is retroactive, unless expressly so declared.

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