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  1. #1

    Default Limiting a Neighbor's Use of a Right of Way

    My question involves an easement in the state of: CT.
    We own a parcel of land upon which we built our home over 15 years ago. There is a deeded right of way to a rear lot through our land. For many years we enjoyed peaceful tranquility. A few years ago the owner of the rear lot (and home) sold his house. The "new" neighbor has no understanding of the definition of a right of way, and we have had numerous confrontations (started out as casual conversations) over the years. It is not a good relationship. He has removed trees from the right of way (kept the wood for himself), dumped constructions materials on the right of way (left there for over a year- we finally paid to have removed), has friends who visit and like to throw empty beer bottles and cans out of their vehicle windows, and have children and visitors who drive ATV's up and down the driveway (the right of way).

    The legal description on my deed is as follows:
    "Said tract is subject to a 40' wide right of way in favor of said Mr. and Mrs. PreviousOwner as depicted on the above referenced map."

    Mr. and Mrs. PreviousOwner being the former owner of the rear lot and home. The "above referenced map" shows a nice meandering driveway through my property that in many instances is well over 40' from the property line, in some places as much as 90' from the property line. I do not use this driveway for other than walking my dog, which if he chooses to be walking his dog (off leash) along the driveway, I must turn around to avoid problems between the dogs. The area is wooded, but the driveway is within 150' of our home and the noise from the atv's is quite loud. This is ultimately my biggest issue. I have asked repeatedly that he not use the driveway for a recreation area, but he insists it is "his driveway" and can do as he pleases. I have sent him registered letters requesting he contact an attorney to review his rights, but the situation remains unchanged. As this is probably only simple trespass at best (other than the theft of the trees) we are at our wits end as how to proceed.

    I recently decided to "store" some scrap metal items in plain view of the driveway. It is quite an offensive sight- old barbecue, etc. It is well enough off of the driveway, with several trees between the driveway and the items. Is it located within the right of way? I'm not sure. The land has not been surveyed since before we bought it. Just looking for a peaceful relationship with my neighbor, but can't get through with words. Obviously has no respect for our wishes.

    Do I have any rights here? Am I truly being an Ignorant Fool?

  2. #2
    Join Date
    Nov 2013
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    Default Re: Limiting a Neighbor's Use of a Right of Way

    I was hoping that someone with actual experience and knowledge would jump in, but maybe they will if I'm far enough off base.

    I think you need an attorney at this point. The new neighbor may find it more difficult to ignore a letter from a lawyer outlining his legal rights and/or lack thereof. Your new attorney can also advise you as to where you actually stand. I don't think he's going to hire an attorney to tell him things he doesn't want to hear and would rather not acknowledge. As long as you're willing to let his actions continue, why would he seek paid advice that might suggest he stop?

    I see a couple of things that may help, from the little I know.

    A Right Of Way _usually_ only grants a right to pass over. Not to stop, park, store goods, recreate, or walk their dog, among other things.

    The right of way appears to be assigned to actual individuals. That MAY mean it does not run with the land.

    The "40' wide" seems to indicate the width of the ROW, not it's location. The location is what is shown on the "map", but without a boundary survey, I'm not sure how you could define it more clearly. I don't know how surveyors deal with things like that.

    Is there a leash law where you live? Call whatever agency deals with dogs at large.

    What are you hoping to accomplish by storing unsightly scrap? Are you hoping he will steal it, or object to it? I don't know if he'll steal it, but he's unlikely to object to something he seems to do himself with no issues. Maybe he just thinks it means you're coming around to his point of view.

    Depending on how long it's been, you might be able to take him to small claims court for the value of the wood, and the cost to remove the construction debris.

    I hope you will get someone answering with a better grasp of the situation, but I do think you need to start to act in your own interest.

    Good luck! Please keep us posted.

  3. #3
    Join Date
    Nov 2013
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    Default Re: Limiting a Neighbor's Use of a Right of Way

    Did you purchase your land while the previous owner named in your deed still lived on the back lot? Is the granting language of the ROW that you posted all that it says or is there more that you did not post? Two important questions.

    The ROW does appear to be in gross because it names individuals rather than an easement appurtenant to the property based on what you posted the language to be. But this interpretation would have to be decided by a court.

    An easement or strict ROW ( the right to travel over someone's land and to have the reasonable use and enjoyment of their property as long as it is not inconsistent with the owner's use and enjoyment of the land) that is in gross ends when either the dominant tenement dies or sells the property or when the servient tenement (you or your predecessor that granted the easement ) sells the property. So if it is determined that this ROW is in gross, it expired which means that the back lot has no ROW unless you want to grant one as the owner of the property. There are other ways that the back lot may have acquired rights over the years though. If the back lot is landlocked without the ROW then there is a possibility of an easement of necessity. There may be a prescriptive right depending on the history of use.

    It's good advise to hire an attorney to review the entire situation and send a letter to the neighbor. A letter from an attorney stating the facts and rights or lack of them and threating a nuisance or trespass law suit carries far more weight than a letter from you.

    If you sit on your rights for too long you loose them.

  4. #4

    Default Re: Limiting a Neighbor's Use of a Right of Way

    Thank you Catmad and budwad for your responses. I appreciate your time and input. I have read through these forums and respect your opinions.

    The description that I listed in the original post:
    "Said tract is subject to a 40' wide right of way in favor of said Mr. and Mrs. PreviousOwner as depicted on the above referenced map."

    is exactly what the deed says. There is no other reference to the right of way in the deed or attached schedules.
    I am the original purchaser of the lot, bought from "Mr. and Mrs. PreviousOwner."
    The rear lot is indeed landlocked.
    I put the unsightly scrap there in a punitive, emotional, (childish?) retaliation; an effort to get his attention.
    I do not know how to upload a scan of the map depicting the right of way and the driveway. The right of way is shown as a dotted line 40' in from the property line from the road to his lot, which is the same as the map recorded with the town, but both maps also show the "existing driveway" which deviates significantly from the lines of the right of way.
    I have spoken to my attorney (about 2 years ago) about this. He said that the neighbor cannot significantly change the driveway other than maintenance, but I cannot force him to move it within the identified right of way. I don't know if he picked up on the distinction between the appurtenant or in gross description.
    I do not wish to deny anyone access to their property. I read the deed before I signed the purchase agreement and was aware of the right of way. I am not asking that he move the driveway. I just want to get him to respect my wishes that he not use the driveway as a race track for the ATV's.
    I'm not sure what answers I was hoping to get here. I was hoping to avoid a legal battle and the associated expense. Perhaps I'm hoping he starts legal action so that I can act in my own defense and get a judge to issue an injunction. I thought armed with some of the knowledge of the members here I might be better equipped to plead my case. I know, he who represents himself has a fool for an attorney.

  5. #5
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    Default Re: Limiting a Neighbor's Use of a Right of Way

    A letter from a lawyer shouldn't cost that much to get. Do you play poker? It won't matter who starts the litigation if you are going to represent yourself. The cost would be about the same if you were the plaintiff or the defendant.

    Why would the neighbor want to start a legal action anyway? He has what he wants.

  6. #6
    Join Date
    May 2015
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    Loon Lake, WA
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    Default Re: Limiting a Neighbor's Use of a Right of Way

    Hi, I have a similar situation, I am not an attorney. The easement is a legal legal right, it describes what it is to be used for hence it infers what it is not to be used for which is anything else so you have a legal leg to stand on. I would offer either go to junk wars with them see who can make the biggest mess or sue them appear to be the two options. Me, I am educating my neighbors, the sheriff dept, and the public as to what the purpose of the road is which is in your legal description, start there and make signs depicting what it says PRIVATE PROPERTY is a real good start NO TRESPASSING has now informed all in writing those are the key two legal postings I saw need to inform the world of right where it begins from public roads. The problem I see here is How to word all so that it informs all in a manner in which does not offend, like you I have the owner ( dont feel bad, I have several dozen of them and their beer drinking quad racing buddies plus a general public unaware my access is not a continuation of what is public ) who doesnt seem to be digesting their own legal description and at this point I doubt they will without being seen in court and even at that may never get it . So I will paste a copy of the sign I drafted which is easily converted to a professional looking sign at an online vendor :

    So with this sign I am posting what the road is to all by directing it at the guests see because I have a few neighbors wouldnt take kindly to percieving theyre being told to do anything. I have my bold PRIVATE ROAD DEAD END LANDOWNERS ONLY on the big bold sign which the neighbors love to see and then what I need all including the neighbors to see is as follows in small as font as it takes to cram it all in :

    Guests please respect from this point on you will be traveling over other landowner's private property to reach your party please use only that portion of the easements that comprise the access as necessary. the intended purpose of this access is ingress and egress of private property only no recreational use of the road will be permitted this area is fish and wildlife sensitive as well and the creek is salmon spawning grounds. All appreciate your consideration to keep impact to a minimum.

  7. #7
    Join Date
    Nov 2013
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    672

    Default Re: Limiting a Neighbor's Use of a Right of Way

    kialoa4, I'm afraid I was unable to follow much of your post. All I can say is that if my neighbor and his pals saw that sign, I could expect the ATV races to run 24/7, and not be limited in scope...

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