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  1. #1
    Join Date
    Aug 2016
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    15

    Default Can the Owner of a Servient Estate Improve a Right-of-Way and Bill for the Cost

    My question involves real estate located in the State of: WV

    We have a 40ft ROW that meanders through 2 parcels of property - we call it the back road because there is another front entrance we access to get to our property. We have not once paid for any kind of maintenance to this road for 8+ years and our neighbors have not paid a dime for over 15+ years. I believe another ROW holder paved it on his own accord many years ago. A guy bought the property that this ROW goes through - he wanted us all to sign our rights over to it which no one agreed - in the new deeds for the parcels he has sold since purchasing it extinguishes any new owners right to use it. The deed that this ROW originates from is dated back to 1954 - I have gone to the courthouse and copied it. It does state that maintenance is supposed to be shared cost to all ROW holders - however when this old landowner passed away and her children inherited the land no one was ever assigned nor collected any money to maintain the road. When we bought our house we were not aware of this issue. So - the new landowner is supposedly preparing the road to be paved and expecting us all to pay. Can he do this without letting us know and just demand money? We have talked to the guy once in the 7 months he's been up there clearing etc. He says he wants the road abandoned however there is gravel driveway leading to where he is building his house from this road. I do agree none of us ever maintained the road and it isn't in the best of shape but do we have any legal angle here to fight this? He is saying we are going to owe $20,000 each! And more houses are connected to this ROW than just the ones on our lane - and it is my understanding that it has to be split evenly so shouldn't we need something in writing before he does this? Is the paving considered maintenance? The original deed says 9ft slag road.

    HELP!

  2. #2
    Join Date
    Nov 2013
    Posts
    7,056

    Default Re: Row Maintenance Issue

    Whatever the granting language and what was the original intent of the grantor is what will control the situation. One property will not control the situation. If the grant says the easement is for a 9ft slag road then paving and trying to charge the other dominant estates for it may not be consistent with the grant.

    You and the other properties that use this easement should consult an attorney before any improvements take place.

  3. #3
    Join Date
    Aug 2016
    Posts
    15

    Default Re: Row Maintenance Issue

    I have a call into mine now - but this guy just does what he wants!

  4. #4
    Join Date
    Nov 2013
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    7,056

    Default Re: Row Maintenance Issue

    By this guy, I assume you mean the guy that wants to pave the ROW? You should be coordinating with your neighbors.

  5. #5
    Join Date
    Aug 2016
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    15

    Default Re: Row Maintenance Issue

    from original deed
    "Any person or persons having the right to use said Right of Way Number 1 may improve the said slag road on said right of way at any time, either by widening the same, or by putting a new surface thereon, or by substituting therefor a concrete, asphalt, asphaltic-concrete, or tarvia road at his, her or their expense, and the provisions hereof for the maintenance of said slag road shall govern with reference to the sharing of the costs of maintenance of said road after any such improvement. In no event, however, shall said slag road, or any substitute therefor, be so widened as to exceed an overall width of twenty feet, unless all property owners having the right to use same shall agree thereto."


    So - I'm concerned since another ROW holder paved this road years ago if that is how we have to maintain it going forward......hopefully I will get some answers today!

    Yes - he bought the land (40+ acres) the ROW in question meanders through his property - which he says he owns the road. We are all against it - I am trying to find out everyone that has access to this ROW in their deed.

  6. #6
    Join Date
    Nov 2013
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    7,056

    Default Re: Row Maintenance Issue

    Quote Quoting jennyjca
    View Post
    from original deed
    "Any person or persons having the right to use said Right of Way Number 1 may improve the said slag road on said right of way at any time, either by widening the same, or by putting a new surface thereon, or by substituting therefor a concrete, asphalt, asphaltic-concrete, or tarvia road at his, her or their expense, and the provisions hereof for the maintenance of said slag road shall govern with reference to the sharing of the costs of maintenance of said road after any such improvement. In no event, however, shall said slag road, or any substitute therefor, be so widened as to exceed an overall width of twenty feet, unless all property owners having the right to use same shall agree thereto."


    So - I'm concerned since another ROW holder paved this road years ago if that is how we have to maintain it going forward......hopefully I will get some answers today!
    It says at their expense, not yours.

  7. #7
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Row Maintenance Issue

    Can you clarify something;

    the road is currently paved, correct?

    is it in such poor condition it needs to be repaved?

    If both are true then arguably yes, you could be held liable for your pro data share of the relating. The initial paving is at the installers cost but once installled, the grant states the users of the roadway shall pay for the maintenance in shares equal to their share of the slag roadway.

  8. #8
    Join Date
    Aug 2016
    Posts
    15

    Default Re: Row Maintenance Issue

    You can't tell it was paved - and was in that condition basically since we have lived there 8 years - traffic on it is minor - most people use the front entrance to another subdivision. None of us knew we had to upkeep that road until this guy bought the property and made a big stink about it. Technically gravel would be sufficient at this point - it is a private road. The guy that purchased the land is pissed it cuts through his property where he wants to hunt etc. so wants us all to abandon it so he can use for himself - our problem is what if there ever is an emergency or the main road and the other is shut down we will be stuck. And the other point is shouldn't it be discussed with all of us and we see quotes etc for the maintenance work before its done? I would think that would be the logical approach. It also states in the original deed that previous landowner would assign someone for that duty (to collect for maintenance) and once she passed away and the land got divided between her children it has been vacant - 20+ years I believe - so I am checking with my lawyer about that. Also - he tore up part of it installing sewage to the new properties so why should be responsible for that repair. I won't even go into the mess he has left the ROW in front of our homes on our lanes from the utilities he dug (gas and water) - if he expects us to pay for the gravel on that road this year like we do every year he has another thing coming to him because it is a mess and there has never been as much traffic since he purchased the land.

  9. #9
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Row Maintenance Issue

    If you can't tell it was paved, why do to say somebody paved the roadway? Even when a paved roadway degrades an extreme amount it is still possible to determine it was paved at some time.


    Yes he would be liable for the repair or costs of repair of damages he caused. He would be required to return it or pay to return it to the condition it was before he damaged it.

    Since you have documents I don't, I can't say whether he needs to seek approval from anybody before repairing the road. If he is not obligated to, then he doesn't have to. If you believe his proposed costs are out of line you have a point of argument you should not be responsible for your share of the costs of a lesser amount.


    I suggest you reconsider your position of not wanting to be held responsible for the maintenance costs but you still want to retain your rights to use the easement. You don't get to have it both ways. If you retain your rights, you are liable for costs the grant designates as yours. If you wish to be released from responsibility of those costs, then give up your rights to use the easement.

  10. #10
    Join Date
    Aug 2016
    Posts
    15

    Default Re: Row Maintenance Issue

    I believe someone had put gravel at some point over the paved part. We don't mind contributing to the maintenance but not $20,000 - that's absurd if you ask me especially when that is for years of non-maintenance that is not our fault. The main reason the road got tore up is when someone brought big trucks up that 9 ft road to log or something (before we lived there). The fact that the guy is being a complete jerk does not help the situation. My lawyer said to wait it out and see what happens - she doesn't seem too concerned. Thanks for all the input!

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