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  1. #1
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    May 2012
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    Default Use of Road Easement to Access National Forest

    My question involves an easement in the state of: Montana

    We live in a subdivision with private roads maintained by the Homeowners Association for the use of all homeowners. The covenants state that each road as platted shall include a 60' road easement, extending 30' to either side of the center line of the road. On one particular tract, the road closely parallels a fence line on the other side of which is National Forest land. (Several homeowners assert that the intent when the land was originally subdivided was to provide all homeowners with National Forest access at this point, but I have seen no written documentation of this.)

    On this particular tract, the fence line appears to be well within the boundary of the 60' road easement, so that one could walk directly from the easement (over the fence) onto National Forest property. The owner of said tract maintains that the road easement is exclusively a utility easement, and therefore may not be used by other homeowners to access the forest. However, the covenants state the following: "All road easements as shown on the plat shall include a corresponding easement for drainage, electricity, telephone, lighting, water, sewer, cable television and all other utilities."

    My questions are as follows:

    1. Am I correct in my interpretation that the above language spells out two separate easements-- the road easement (for ingress and egress) and the corresponding utility easement?

    2. If so, would not the road easement allow any homeowner to ingress and egress from the surface of the road to the National Forest boundary without trespassing on the underlying tract? Would not any form of transportation allowed on the road (walking, biking, horseback riding) be similarly permitted within the confines of the road easement?

    3. If legal access to the National Forest land at this point were to be established pursuant to this easement, can the Homeowners Association then compel the tract's owner to either remove a portion of the fence that is blocking access, or permit the Association to install a gate to facilitate access?

    Thank you in advance for your time and assistance!

  2. #2
    Join Date
    Jan 2006
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    Default Re: Use of Road Easement to Access National Forest

    the only thing I see is if there is road running along the fence, I see nothing stopping people from using the road to access the National Forest land BUT depending on whose fence it is, you may have no right to cut the fence.

    BUT who owns the fence?


    You also need to research this particular ROW to be certain it is a road ROW and not simply a utility easement.

  3. #3
    Join Date
    Oct 2007
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    Ohio
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    Default Re: Use of Road Easement to Access National Forest

    1. Am I correct in my interpretation that the above language spells out two separate easements-- the road easement (for ingress and egress) and the corresponding utility easement?
    No, they are probably not separable. But one easement can grant multiple uses, as your example appears to.

    2. If so, would not the road easement allow any homeowner to ingress and egress from the surface of the road to the National Forest boundary without trespassing on the underlying tract? Would not any form of transportation allowed on the road (walking, biking, horseback riding) be similarly permitted within the confines of the road easement?
    There is an ambiguity as you have stated that the fence, ostensibly the National Forest Boundary, lies within the granted road right of way of the private road. This is a bit of a red flag for a surveyor, as for that to happen, the Federal Government would have had to be a grantor of part of the right of way. I'm dubious that ever happened. A title search will indicate if this actually happened. If not, a boundary survey will be needed to determine the relationship of the National Forest boundary and the boundary of the private road right of way. Until that is known, the rest of the question is moot.

    Bear in mind that any actual legal access to the boundary of a National Forest will permit no access to the NF except on it's own terms. You cannot automatically assume that the type of traffic permitted on the private road will be permitted in the NF.

  4. #4
    Join Date
    Aug 2010
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    Maine
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    Default Re: Use of Road Easement to Access National Forest

    When speaking to intent in conjunction with deeds, then intent is almost always (in the courts) garnered by taking the deed by the four corners, and reading all words on the page. If there are no words describing access to the national forest, and there are no patent ambiguities in the deed itself, then the intent of the deed would likely not be interpreted (by a court) to allow access to the forest from the 60' easement.

    Utilities benefit landowners by supplying services to their homes. Utility easements benefit the utilities themselves by allowing those companies access to their lines for repair, replacement, etc. Typically, a homeowner would not be allowed to use a utility easement for ingress and egress. This is a moot point in this case, since the utilities enjoy access which is coincident with the 60' road easement.

    I can't cite case law, but ingress and egress are typically held to run from the place assigned from in the deed to the place assigned to in the deed. An easement which reads "an easement from the state highway to the the grantee's house lot" would not allow you to pull off the easement mid way and into your neighbor's driveway.

    Lastly, national forests are typically controlled by the Park service, with Rangers stationed at entrances to collect money to help pay for our forests, and more importantly to make a roster of the days visitors, so as to know who may be where in case search and rescue is needed. Your side gate would defeat that, and as a potential unintentional consequence, your neighborhood might eventually be populated with people seeking a free entrance in to the park.

    I'm sure this is not what you wanted to hear, but it's the way I see it. Others might have a different opinion. Good luck, whichever way things go for you.

  5. #5
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    Default Re: Use of Road Easement to Access National Forest

    I can't cite case law, but ingress and egress are typically held to run from the place assigned from in the deed to the place assigned to in the deed. An easement which reads "an easement from the state highway to the the grantee's house lot" would not allow you to pull off the easement mid way and into your neighbor's driveway.
    I think what Newton is getting at is something I missed stating in my earlier post. My mistake. It's a fact that a private right of way easement only serves the specific parcels listed in the grant. If you have a private road which is only dedicated to serve the parcels in your subdivision, you are granted access from it to nothing else, even if it physically adjoins other parcels.

  6. #6
    Join Date
    May 2012
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    3

    Default Re: Use of Road Easement to Access National Forest

    Gentlemen,

    Thank you very much for the prompt reply. No, not exactly what I wanted to hear, but very interesting and illuminating nonetheless. I appreciate the good advice.

    Actually, there is one small additional wrinkle I'd be interested to hear your take on. Our covenants state as follows: "The easements set forth in Certificate of Survey XXX shall remain private roads owned in common by all owners of the lots in said Certificate of Survey XXX, and shall be managed by the homeowner's association after the same is created."

    The property deed specifies no specific easement (i.e.-- ingress and egress from the public road to our tract) but merely that ownership is subject to "easements of record, rights of way, covenants..." and so on. So with the element of common ownership of all roads and easements, this would seem to change things a little. The easement all homeowners enjoy in common is not strictly to use the road to reach our respective parcels, but to use any part of the road any time we like. Does this affect your view of whether an owner can use said easement to access the Forest Service boundary?

    As a side note, Forest Service land in Montana is not managed actively in most places as it may be in other states. Any private property that borders Forest Service property by definition provides direct access to said FS land, subject to its land use regulations (e.g.-- no motorized vehicle traffic, etc.)

    Also, as for the overlap of the FS boundary and the road easement, I agree this is a bit ambiguous. The FS almost certainly granted no right of way when the survey was completed, but even if one accepts that the road easement terminates where the FS boundary begins, (maybe it's only 21' from center of the road to where it hits the FS property line instead of the full 30') it seems to me that it should still allow a person with a legal right to be on the easement to step over onto FS property without trespass on the underlying parcel.

    Thanks again for your knowledge and your willingness to share it!

  7. #7
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    Default Re: Use of Road Easement to Access National Forest

    So with the element of common ownership of all roads and easements, this would seem to change things a little.
    Not really. All property owned by an HOA is owned by all the members of the HOA. Doesn't necessarily give the owners any rights to utilize any specific piece of property but beyond that, if it is an easement or ROW that is merely an encumbrance on the lot owner, it is owned by the lot owner regardless what anything else states.


    it seems to me that it should still allow a person with a legal right to be on the easement to step over onto FS property without trespass on the underlying parcel.
    part of the problem you have is: in a typical road, the easement as you state, I am presuming they are centered on the lot lines with a 30' easement on the lots on each side. In the situation with the FS property, there is no lots on the opposite side to take the 30' from so, is the full 60' on the lot owners property that abuts the FS land?


    Basically, you are going to have to do more research to determine exactly what is going on in the one sided situation. Find out if there is a dedicated road (land actually owned by the HOA) or it is utilizing easements/ROWs across the lot owners property. Then, look for any rules specific to this road.


    Beyond that, as others have said, if the fence belongs to the FS, you have no right to cross the fence.... period. Access to the FS land will be at some point determined by the FS.

  8. #8
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    Default Re: Use of Road Easement to Access National Forest

    Actually, there is one small additional wrinkle I'd be interested to hear your take on. Our covenants state as follows: "The easements set forth in Certificate of Survey XXX shall remain private roads owned in common by all owners of the lots in said Certificate of Survey XXX, and shall be managed by the homeowner's association after the same is created."
    That statement of covenants does not affect the the original grant of easement, it only clarifies the management, maintenance, etc.. If the original grant only included the members of the association and their lands, it does not include anything outside of the subdivision. If the National Forest is not a member of your subdivision homeowner's association, they have no right to access your property and you have no right to access theirs. If the enforcement of the NF boundary is so lax, why is it particularly important to have your own access? Wouldn't there be many points of access close by if it is basically uncontrolled?

    You still have to get the relationship of the NF boundary and your private road worked out. There is no real further discussion without knowing that situation.

    If you win all of your points and find that you actually have access, you will likely have a new problem on your hands as some members of your neighborhood will feel that friends which they might invite over for a visit can also be invited to access the NF. That will be a whole new can of worms for you to deal with.

  9. #9
    Join Date
    May 2012
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    Default Re: Use of Road Easement to Access National Forest

    I agree with you that we need to clear up the exact nature of the road easement where it abuts the Forest Service boundary. I'll be researching that matter further.

    Just to clarify the Forest Service situation, we are in a subdivision of primarily 20 acre lots, and all the lots along one side of the subdivision border FS lands. These folks enjoy direct access from their parcels onto FS property. The FS does not claim ownership of the fence along the boundary-- it has been there since before the ranch was subdivided, and is built along the property line, mostly to keep cattle which graze on the FS land in the summer from wandering down into the neighborhood. I believe the HOA has in the past paid to repair and maintain this fence. Forest Service lands (as opposed to National or State Park lands) are generally open to public use without fees or restrictions via any public easement into FS property, or by private landowners whose properties border FS land, as is the case in our neighborhood.

    To make a long story short, according to the first few residents who built in the subdivision, it was commonly understood that the intent of the developer was to provide a single access gate for all HOA members at the site in question, which is why the developer intentionally platted this stretch of road right up against the FS boundary. However, I can find no explicit documentation of this. Homeowners used this stretch of road for access to FS lands until a former owner of the tract upon which this section of road is located started denying access with threats of litigation as well as physical threats and intimidation, and neighbors eventually dropped the issue, feeling it wasn't worth the effort to pursue. Now, years later, the issue has arisen again, and many of the newer neighbors are interested in finding out if the existing road easement (which we all share in common) can be used to establish such an access point.

    There are a couple public access points into National Forest lands nearby (within a few miles) but it's the difference between hiking or riding from one's doorstep up the private neighborhood road into the National Forest versus driving several miles to reach a public trailhead. Obviously, an HOA access point would be a great recreational asset for landowners who don't directly border the FS, as well as enhancing property values across the board within the neighborhood. I don't believe it would be heavily used, but it would certainly be a nice thing to have.


    To simplify the question slightly, let's say there is nothing that would prohibit simply widening the road within the road easement until it physically touches the FS boundary. If the original easement grant allows all homeowners use of the entire Association road (as opposed to specifying ingress and egress to one's tract only)-- and I believe it does-- it seems to me that whether or not there is a specific easement recorded to access the National Forest, there would be no prohibition on any homeowner who already has legal right to walk or ride a bike on this section of road simply stepping from the road, over the fence, and onto FS property, just as any owner of a tract bordering FS can do. Anyway, that's the essence of what we're trying to figure out here.

    Thanks again for all the help!

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