New Owner of Servient Estate is Preventing Easement Owner from Fencing and Gating

[scottb1968]

My question involves an easement in the state of:Florida. My grandfather sold 20during acres that was land locked. My uncle deeded an30' easement to papa and in turn papa deeded to my parents an uncle and the folks that bought the 20 acres. I have also been given use of the easement through a lease of my families land that I farm. Per my lease I was to clear land and errect new fences and gates. The folks with the 20family acres used and alternate access through some of their families property until the day i got the new fence gates and road. They had already cut holes in the fence where they needed access in their property. The easement is for ingress egress with no special provisions. They have refused to use gates and even tore them up. They are on their 4th4th attorney and filed papers against my family and myself that we have kept them from using the easement which is lies. My attorney says everything is in our favor but I still worry. Any advice? I have witnesses to the gates being damaged,pics of the damage to my crops where they turn around out of the easement,etc.
they will not talk or negotiate, I ofeered to pay for half of an electric gate but got told its all on me. Completely frustrated!

[landagent]

If you have documented and can prove they did all of this either file a police report and get an attorney and sue. From your post, it makes me think you need to get their attention.
If they have been thru 4 attorneys they either don't pay their attorneys bills, or are so difficult to deal with the lawyers don't want them in their office.
Just my .02.

[scottb1968]

We did get a police report didn't pursue through state attorney due to tjem probably get deferred prosecution and tjen there would be no record if they complied with judges orders. We hope to get this settled in court but dont believe they will comply whether they win or I do.

[LandSurveyor]

A lease you signed requiring you to erect gates and fences blocking a valid easement does not override the rights of the easement holders.

The folks with the 20family acres used and alternate access through some of their families property until the day i got the new fence gates and road.

The easement they have is not an easement by necessity but a deeded easement. It does not depend on necessity nor does it go away by non-use. Your act of blocking it was possibly an act of trespass upon the easement, hostile to their rights as dominant tenants. They do not necessarily need to get permission from a court to unblock their easement and remove a trespasser.

They have refused to use gates and even tore them up.

They may have every right to ignore the gates. Having a right to remove them does not include a right to destroy them. They remain your property. Traveling off of the easement and damaging crops- well that is trespassing and you can figure up the damages and sue for them.

I ofeered to pay for half of an electric gate but got told its all on me.

That may be your only way to have a gate. A refusal with a counter offer is a continuation of negotiation, not a refusal of negotiation.

[Mr. Knowitall]

What is the exact granting language of the easement?

[scottb1968]

Mr.Knowitall, it reads "together with an easement of ingress, egress and public utilities, "Also then the physical description. They claim it unemcumbered but no where does it say that. We have followed fl.fence laws704.01,etc.doing more than were responsible for. I feel!

[Mr. Knowitall]

If an easement is by grant, then it's neither a statutory easement nor a common law easement as contemplated by Fl. Statutes Sec. 704.01.

The court in BHB Development, Inc. v. Bonefish Yacht Club Homeowners Association, Inc., 691 So.2d 1174, 1176 (Fla. 3d DCA 1997), set forth the general rule concerning the right of a servient landowner to construct a gate across an easement:

[T]he grant of a way without reservation of the right to maintain gates does not necessarily preclude the owner of the land from doing so, and unless it is expressly stipulated that the way shall be an open one, or it appears from the terms of the grant or the circumstances that such was the intention, the owner of the servient estate may erect gates across the way, if they are constructed so as not to interfere unreasonably with the right of passage.

20 Fla. Jur. 2d Easements § 36 (1980).

To insure certainty, parties who want to keep an easement free of gates or other obstacles can specifically express that intention in the document. However, failure to do so does not preclude the right to erect a gate so long as it does not interfere unreasonably with the right of way.

Thus, depending on the facts, a gate may be permissible "long as it does not interfere unreasonably with the right of way"; but you can't erect an ungated fence to block a granted right of way without unreasonably interfering with its use.