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  1. #1

    Exclamation Deeded Right of Way for Purpose of Driveway

    My question involves an easement in the state of: Upstate NY tioga county
    I am purchasing a house on land contract. the deed states that a right of way was given to my neighbor back in 1896 for the purpose of a drive way. here is how it is written...
    "said party of the first part also conveys to the party of the second part such a right of way over and across four feet of land of from the north side of the adjoining lot No. 39, as reserved for a driveway in a deed from (name) dated february 19,1896. There is also hereby accepted and reserved such a right of way for a driveway over four feet of land from the south side of lot 40."

    Ok so here is my dilema. our driveway is only wide enough for one car lane. the right of way division is the center of the driveway and over towards her house 4 feet which is on her yard. She refuses to park on her yard which is her allotted easement and instead parks dead center in my driveway. I try to pull my car forward far enough so that she would have room to pull in the driveway if need be. When we moved in she told us that the only times she would need to use the driveway would be to unload groceries and during snow storms. I did not have an issue with that. however with the recent snow fall she pulled in the drive to park and blocked in one of our vehicles and refused to move it when we asked her if we could please get out of the driveway. After 2 days of being blocked in we finally had no choice but to drive through our yard. Her car still sits in the driveway even though the snow storm is over and we cannot get back in the drive because she refuses to move. The police cannot do anything as its a civil matter and I cannot have her towed because she does have a right of way. My question I guess is doesn't she have to stay within her allotted space? the property was surveyed and marked in 1993 so it is visable as to where the boundries are. she is clearly over extending her parking space and is therefore blocking me from also using what is mine. We are going to mediation instead of court but I at least want to be prepared and have my homework done before going. My next question is since she does not have an exclusive right of way I can still use the entire width of the driveway as long as she can get in and out within her alloted space correct? and if say I widened my side of the driveway could I erect a fence or divider down the center of the driveway thus forcing her to stay within her boundry? any advice would be appreciated.

  2. #2

    Default Re: Deeded Right of Way for Purpose of Driveway

    If I'm understanding the situation, there is a driveway centered on your property line and each owner has a 4' RoW easment to make an 8' easement total, which probably covers the width of the drive. She is now parked halfway up the driveway and you can't get fully in or out because of her parked car.

    If my take on the situation is right, I would say that she is in the wrong because a right of way is just that, it is a right of access. It's not a parking easement. It is only to be traveled across, it is not to be occupied. So, whether you were blocked or not, she is occupying your property, and that is not allowed for in a RoW easement.

    However, in this case, her use is obstructing the easement for you, and that, obviously, is not allowed for.

    So, you are legally in the right, but it seems that you are going to have to fully press the matter to get her to comply with the law. I hope that the mediation takes care of it for you. Stick to these two points and don't back off of them: 1) a Right of Way easement does not give a right to occupy and 2) she is obstructing you from using the easement.

    I am not a lawyer, I'm am a land surveyor, and I know virtually nothing about NY law.

    Good luck,

    Stephen Calder, PLS

  3. #3
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    Default Re: Deeded Right of Way for Purpose of Driveway

    Quote Quoting Leslie Wittenbrader Pond
    View Post
    and if say I widened my side of the driveway could I erect a fence or divider down the center of the driveway thus forcing her to stay within her boundry? any advice would be appreciated.
    This you cannot legally do, as she has a right of way over 4 feet of your property. Plus, that fence would block your 4 foot right of way. You would only be able to build a fence no closer than 4 feet from your property line. And even then you may not be able to build a fence there if the physical location of the driveway, which has possibly existed for 115 years, is onto your property more than 4 feet, and someone could claim a prescriptive easement over the actual physical location of the drive. Of course, this is information you don't have to tell your neighbor.

    I think mediation will work out for you. It sounds like you have a clear case for being blocked from enjoying your right of way.

    Lastly, I would stop driving over your lawn. Given enough time, that could potentially be claimed as your driveway and you could potentially lose your deeded right of way. Unlikely, but it could happen.

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