Can the Owner of the Servient Estate Use the Easement

[BrushBottomFord]

My question involves an easement in the state of: Virginia

I recently purchased a piece of property that had a said right of way that was incorrect. Two separate Title Companies signed off on it and did not find the correct deeded right of way that was very specific to my lots. It was well thought out because there was effort to establish it as an Outstanding Right of Way with the National Forest Service and is recorded as so. Since it is an Outstanding Right of Way, there are no special use permits that I will have to apply for and the new road will be built without much interference from the Forest Service since it was granted prior to the acquisition of the property by the government. The right of way we were told that was to be used in the beginning is the most logical route but that argument has been laid to rest by the documentation that has been presented. One of the homeowners that was a plaintiff against me took issue because the prior owner granted a right of way through his land to the other property she owned. Although she owned his land at the time she had no right to issue an easement as she was granted a right of way from the first party and her being the second party could not legally grant it to a third party "to me". My proper right of way specifically addresses my lots in particular, but it still runs through the property of my neighbor who took issue before, this right of way being located on the opposite end of his and my property boundaries. We could and should have been granted a right of way by these folks of this subdivision, there are 20 homes on the 1.5 mile road and my neighbor behind me is going through this ordeal with me as we purchased the last three remaining lots about the same time. A right of way could have been granted to us but there were a few pricks in the neighborhood and I do not and will not beg for concessions from anyone.

This brings me to ask this question, when my right of way is constructed will my neighbor that gave me a lot of grief be able to use my new right of way since it crosses his property? The right of way specifically addresses my lots and it just so happens to still run over his land. The cost for this new right of way is going to be about $100,000 to construct and I am sure it will have some substantial costs to maintain since it will be a half mile road up the side of a mountain. I just have a feeling that the neighbor that caused all of this grief in the first place is going to claim that he has a right to use our road as well because it crosses about 50 feet of his property. Like I said he has a deeded right of way coming up the road where we were denied access to, will I be able to tell him he has no right of way on my right of way? Any help or guidance would be great, Thanks

[LandSurveyor]

This brings me to ask this question, when my right of way is constructed will my neighbor that gave me a lot of grief be able to use my new right of way since it crosses his property?

He will probably be able to use the portion which crosses his property unless your right of way is described in it's written grant as "exclusive".

Is it?

[BrushBottomFord]

I don't care if he uses the portion on his property as it is his land, I am just worried that he will try to use my right of way as an alternate access for his property. His property will be crossed half of the way up the new right of way.

[jk]

Again, unless the easement is specifically designated as "exclusive" to you, the servient tenant can use their land anyway they choose as long as it does not interfere with your rights granted under the easement so....


yes, they can probably use your easement for whatever purposes they so choose.


if you are speaking of your easement across another's (third party) land; that would be between that property owner and the user. You cannot prevent the third party from granting rights to anybody and everybody unless, again, your rights granted by that third party to you are exclusive to you.

[BrushBottomFord]

Yes, the right of way easement is exclusive to my parcel of property. There were a few parcels of property which belonged to the "Moore Estate" which had been granted the easement prior to the sale of the property to the National Forest. My neighbors property was never a part of the Moore property even though the easement runs through a small part of his land. I don't want to be a prick about this new right of way, but if I have to maintain a new right of way, I don't want someone using it just for the sole reason that it connects to their property. So again yes, the right of way is exclusive and specific to my property just like his current right of way is exclusive to his property, which is why I am being sued for unknowingly using it for a short period of time.

[jk]

BrushBottomFord;775781]Yes, the right of way easement is exclusive to my parcel of property.

The actual word "exclusive" is in the easement grant? Just because you are the only one using it or it appears would use it, that does not make it exclusive in the terms required to enforce an exclusive use right.


so, does the actual word; exclusive, appear on the creating document?

[LandSurveyor]

I have to maintain a new right of way, I don't want someone using it just for the sole reason that it connects to their property.

As we have said, unless your written grant over every property contains the word "exclusive" in the grant, every parcel owner over which your right of way courses can be used by the underlying servient tenant without any further reference to you.

In such cases the maintenance will have to be worked out between both of you or settled in court. The maintenance issue will not be solely up to you. In such a case the servient tenant can grant additional easements over the very same right of way to third parties without any further reference to you. As before the maintenance issues will be between you and the other users. To reiterate, if the specific word "exclusive" does not appear in all of the grants, you should see a local attorney for advice before picking any fights with your grantors.