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  1. #1
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    Default The Scope of Easements

    Quote Quoting Mr. Knowitall
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    Bigtrees appears to be trying to assert a blanket rule based upon evaluations that are actually made on a case-by-case basis.
    This is very true. The OP appears to be wanting to know generally how easements work. What I'm writing is general information about easements. It's accurate, but general. The specifics will vary from one situation to another.

  2. #2
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    Default Re: Right of Way Guides for Grantees

    Quote Quoting bigtrees
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    This is very true. The OP appears to be wanting to know generally how easements work. What I'm writing is general information about easements. It's accurate, but general. The specifics will vary from one situation to another.
    It's not accurate. Easements for ingress/egress don't include utilities unless the grant says so or a court rules such. A non-exclusive easement doesn't mean that the dominant estate doesn't get full use of the length and with of the granted easement. They do. What it means is that the servient estate can also use the land with non-permanent impedances such as putting up a structure or a fence or any use that impedes the use of the entire granted easement.

    And the maintenance of the easement, if not addressed in the grant, is the responsibility of the dominant estate.

    I'm not going to support my posts with the case law for you because you don't seem to read it. But that is the law despite that you keep making up your own law.

  3. #3
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    Default Re: Right of Way Guides for Grantees

    Quote Quoting dsom883
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    ...do we also have to maintain the entrance to the side road that he created to gain access to back end of his property? He has every right to use the right of way to access this area, however since the road isn't truly part of the right of way, and if the improvements of the right of way would, say limit his access to the back end of his property, are we obligated to maintain that entrance? This side road is merely a dirt path that he uses to place rubbish.
    I would only maintain the part of the easement I'm using. I wouldn't block the entrance to the side road if I had to plow snow, but I wouldn't clear the side road.

  4. #4
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    Default Re: Right of Way Guides for Grantees

    Quote Quoting budwad
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    It's not accurate. Easements for ingress/egress don't include utilities unless the grant says so or a court rules such.
    I agree with that, however, generally, access easements for landlocked parcels also includes rights to install utilities. You cannot build a modern house if you are blocked from routing power to your property. I never said that one had the right to utilities if utilities weren't granted. Rather, I said that most access (right of way) easements include rights for both utilities and roads. This is true.

    A non-exclusive easement doesn't mean that the dominant estate doesn't get full use of the length and with of the granted easement. They do.
    They get full use of the length. I disagree on the width statement. A dominant estate should place the least burden that is necessary and appropriate for them to use their easement. For example, a 50 foot wide easement doesn't give them the rights to install a 50 foot wide road. That is the width of a 4 lane freeway and that would be excessive. They can put a 24 foot wide road with 8 foot ditches and then 5 feet of vegetation maintenance beyond each ditch. (That's standard engineering practice for road design. There are other options as well.) Anything wider than 24 feet would be inappropriate.

    What it means is that the servient estate can also use the land with non-permanent impedances such as putting up a structure or a fence or any use that impedes the use of the entire granted easement.
    This sentence doesn't make a lot of sense. However, certain things that impede easements, like electric poles, are permitted within the easement area. Other things, like houses, are not. Fences, gates, and speed bumps may or may not be permissible depending on the situation. I will point out that you spend more time telling me I'm wrong than you do actually answering other people's questions on here.

    With that said, the servient estate is allowed to do pretty much anything (as long as permitted by local zoning) that he wants do as long as the dominant estate does not object.

    And the maintenance of the easement, if not addressed in the grant, is the responsibility of the dominant estate.
    The maintenance of the portion of the easement used by the dominant estate is the responsibility of the dominant estate. Maintenance of other improvements within the easement area not used by the dominant estate are not the responsibility of the dominant estate. For example, in the OPs situation, the neighbor uses the easement to access a portion of his property. The roads leading to this portion, even the portions that fall within the easement area but not used by the dominant estate, are the responsibility of the servient estate.

    I'm not going to support my posts with the case law for you because you don't seem to read it. But that is the law despite that you keep making up your own law.
    I am not making up my own law. I've read a lot of case law about easements as well as had several meetings with attorneys regarding easements. What I'm writing is true. Some of the details depend on context and perspective, and perhaps your perspective is different, but what I'm writing is not wrong.

  5. #5
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    Default Re: Right of Way Guides for Grantees

    Quote Quoting bigtrees
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    I said that most access (right of way) easements include rights for both utilities and roads. This is true..
    That is a statement that is not true and is misleading. Perhaps it may be true that easements that are granted to develop property today (or in the last 50 years) will have a provision to use the easement below and above ground for utilities. But ingress/egress easements appurtenant from the past did not likely include the right to install utilities. There are also many cases where an easement grant is poorly written and never addresses utilities. Not every attorney or individual that grants an easement does a perfect job of granting what the grantor intended. That still happens today.

    Quote Quoting bigtrees
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    They get full use of the length. I disagree on the width statement. A dominant estate should place the least burden that is necessary and appropriate for them to use their easement. For example, a 50 foot wide easement doesn't give them the rights to install a 50 foot wide road. That is the width of a 4 lane freeway and that would be excessive. They can put a 24 foot wide road with 8 foot ditches and then 5 feet of vegetation maintenance beyond each ditch. (That's standard engineering practice for road design. There are other options as well.) Anything wider than 24 feet would be inappropriate...
    You are making up the law again. What you feel is appropriate doesn't equate to the established law. Every state with the exception of CA where the servient estate can permanently use parts of a non-exclusive easement, has established common law that says the dominant estate gets the full use of the width of the granted easement. That means that if the easement were 50 wide and the dominant estate wanted to install a 50 wide driveway they could.

    Saying that the dominant estate can't use the full width of the easement because it increases the burden (the servitude) is not correct. The servitude was created by the grantor at the time of the grant. If the intent was to only allow a 24 foot road then the grant would have been 24 feet wide or the grant would have specified the width of the road within the easement.

    Increasing the servitude is going beyond the intent of the grant; not using the grant. When farmer Joe subdivided his land into 20 acre parcels and granted access easements to those interior parcels, he granted the easement width at 50 feet across those road front parcels. Then 50 years later one of the parcels wants' to develop their 20 acres and put up a planned community. A two lane road is built on the easement. So why did farmer Joe grant a 50 foot easement in the first place? Perhaps he knew that his land would one day be developed. As long as the easement only serves the original 20 acres, it is not considered an increase in servitude (provided there is no language in the grant that prohibits or restricts development.)



    Quote Quoting bigtrees
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    This sentence doesn't make a lot of sense. However, certain things that impede easements, like electric poles, are permitted within the easement area. Other things, like houses, are not. Fences, gates, and speed bumps may or may not be permissible depending on the situation. I will point out that you spend more time telling me I'm wrong than you do actually answering other people's questions on here.

    With that said, the servient estate is allowed to do pretty much anything (as long as permitted by local zoning) that he wants do as long as the dominant estate does not object..
    I spend the time posting correcting you because you are making up the law as you go. I always answer a post about easement law with the law. If you want to post your opinion then make it clear that your post is personal opinion not established law. But when you assert that it is law, it is misleading and most times incorrect.

    Case and point: The servient estate is not allowed to do pretty much anything that he wants as long as the dominant estate does not object. You have it backwards. It is the dominant estate that can use the easement as they wish for the full enjoyment of the intended purpose of the easement.

    You are myopic in your view. An easement appurtenant runs with the land, not the owners. What happens in a snippet of time between the servien and dominant estates does not establish the use of the easement with some exceptions. The dominant estate can agree to extinguish the easement by recorded agreement. The dominant estate can establish abandonment of the easement by taking action to abandon such as building a stone wall across the easement or taking some affirmative action to make the easement unusable. In these cases, it is a court that determines that the dominant estate intended to abandon the easement. There are cases where a servient estate has been granted a prescriptive easement for using the easement adverse to the dominant estate for SOL. But those are few and it doesn't extinguish the easement.


    Quote Quoting bigtrees
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    The maintenance of the portion of the easement used by the dominant estate is the responsibility of the dominant estate. Maintenance of other improvements within the easement area not used by the dominant estate are not the responsibility of the dominant estate. For example, in the OPs situation, the neighbor uses the easement to access a portion of his property. The roads leading to this portion, even the portions that fall within the easement area but not used by the dominant estate, are the responsibility of the servient estate..
    A well written grant would say who is responsible for maintenance. If it doesn't say then it is by law the responsibility of the dominant to maintain the easement for the full use of the easement for the purpose intended. What part of the easement do you envision that the servient estate uses that could be their responsibility? Budwad has an easement across bigtrees property. It's from the county road to budwad's land. What part of the easement should Budwad maintain? It's obvious that Budwad has to maintain the easement from the county road to his land.

    But here again, you are myopic. What if I have one servient estate and 50 dominant estates as if often the case in planned communities and subdivisions. What if I have 50 dominant estates who are also servient estates to eachother? If the grant doesn't specify then there may be a recorded maintenance agreement for maintenance that may or may not be referenced in the deeds.


    Quote Quoting bigtrees
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    I am not making up my own law. I've read a lot of case law about easements as well as had several meetings with attorneys regarding easements. What I'm writing is true. Some of the details depend on context and perspective, and perhaps your perspective is different, but what I'm writing is not wrong.
    There is no difference in context or perspective when it comes to the law (the statutes and the common law of each state). The term stare decisis means that what came before in the law is the law. It is what decides cases by the courts. The courts don't make law, they interpret what came before. Of course, a court of higher jurisdiction can take a new look at precedence and make new law. But our easement laws date back to the common law of England for over a thousand years. Your experiences with easement law is your experience in your state. Much of what you post is indeed incorrect. There are elements of truth but your interpretations are often off the mark. Easement and property rights law are very complex and state specific. You make it seem as though there is a simple answer based on your experience. But not the established laws of the states.

  6. #6
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    Default Re: Right of Way Guides for Grantees

    I would like to object to two of your statements.

    Quote Quoting budwad
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    Case and point: The servient estate is not allowed to do pretty much anything that he wants as long as the dominant estate does not object. You have it backwards. It is the dominant estate that can use the easement as they wish for the full enjoyment of the intended purpose of the easement.
    The land is owned by the servient estate, and the servient estate is permitted to use the land as he/she feels fit, as long as the servient estate does not interfere with the limited purpose of the easement.

    The dominant estate can only use the easement for the purposes in the grant. The servient estate can use the land for any purpose that does not interfere with the dominant estate.

    In other words, the servient estate is allowed to do pretty much anything that he wants as long as the dominant estate does not object. (I'm assuming that the dominant estate would object if the servient estate did something that interfered with the purpose of the easement.)

    A well written grant would say who is responsible for maintenance. If it doesn't say then it is by law the responsibility of the dominant to maintain the easement for the full use of the easement for the purpose intended. What part of the easement do you envision that the servient estate uses that could be their responsibility? Budwad has an easement across bigtrees property. It's from the county road to budwad's land. What part of the easement should Budwad maintain? It's obvious that Budwad has to maintain the easement from the county road to his land.
    OK, so Budwad has an easement across Bigtrees property. Bigtrees uses the easement area to build an access road to Bigtrees house. Budwad has not built yet, and at the moment, does not have a improved road to Budwad's property.

    Who should maintain the road that leads from the county road to Bigtrees house? Bigtrees.

    Later, Budwad builds a house and runs a separate driveway in the easement area to the public street. Now there are two driveways in the easement area. One to Budwad's house, one to Bigtree's house. Who maintains Bigtrees driveway? It is in the easement area. Clearly, Budwad is not responsible to maintain a separate driveway that leads to Bigtrees house.

    However, let's say Budwad didn't want a separate driveway and instead simply extended Bigtrees driveway and now uses Bigtrees driveway to get to his house. Who should maintain the driveway that leads from the public street? Well, it's neighborly to discuss with Bigtrees and then share costs appropriately. But under easement language, Budwad would be responsible to maintain the driveway from the public street to his Budwad's house.

    Quote Quoting budwad
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    That is a statement that is not true and is misleading. Perhaps it may be true that easements that are granted to develop property today (or in the last 50 years) will have a provision to use the easement below and above ground for utilities. But ingress/egress easements appurtenant from the past did not likely include the right to install utilities. There are also many cases where an easement grant is poorly written and never addresses utilities. Not every attorney or individual that grants an easement does a perfect job of granting what the grantor intended. That still happens today.
    I still maintain that, in general, right of way easements grant both access as well as utilities. Every access easement I have seen also includes rights to install utilities. I am sure there are some that don't, but most do.

    It is interesting to note, Budwad, that in 2015, you cited case law that granted a person the right to install utilities on an access easement. http://scholar.google.com/scholar_ca...63190497152701. You can read your post here where you say that, in case you've forgotten. https://www.expertlaw.com/forums/sho...d.php?t=192374

    You're correct in saying that if an easement grants only access and not utilities, one may have to get the courts involved to ensure that utilities can be routed. One way or another, the landlocked parcel will get utilities.

    Quote Quoting budwad
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    Increasing the servitude is going beyond the intent of the grant; not using the grant. When farmer Joe subdivided his land into 20 acre parcels and granted access easements to those interior parcels, he granted the easement width at 50 feet across those road front parcels. Then 50 years later one of the parcels wants' to develop their 20 acres and put up a planned community. A two lane road is built on the easement. So why did farmer Joe grant a 50 foot easement in the first place? Perhaps he knew that his land would one day be developed. As long as the easement only serves the original 20 acres, it is not considered an increase in servitude (provided there is no language in the grant that prohibits or restricts development.)
    A two lane road is approximately 24 feet of paved surface. This is fine. The developer would add ditches (two 8' wide strips of land), which then gets to 40, and would have an additional 5 feet for vegetation maintenance outside of the ditches. That's a properly designed road. A 50 foot wide paved road is not correct, and paving all 50 feet of the easement area would be misuse of the easement, because it's far in excess to what is needed for accessing the property.

  7. #7
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    Default Re: Right of Way Guides for Grantees

    Quote Quoting bigtrees
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    OK, so Budwad has an easement across Bigtrees property. Bigtrees uses the easement area to build an access road to Bigtrees house. Budwad has not built yet, and at the moment, does not have a improved road to Budwad's property.

    Who should maintain the road that leads from the county road to Bigtrees house? Bigtrees.

    Later, Budwad builds a house and runs a separate driveway in the easement area to the public street. Now there are two driveways in the easement area. One to Budwad's house, one to Bigtree's house. Who maintains Bigtrees driveway? It is in the easement area. Clearly, Budwad is not responsible to maintain a separate driveway that leads to Bigtrees house..
    Budwad only has to maintain the easement for his use. Just because bigtrees has decide to use the easement area to also access his house does not obligate Budwad to maintain his road.

    Quote Quoting bigtrees
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    However, let's say Budwad didn't want a separate driveway and instead simply extended Bigtrees driveway and now uses Bigtrees driveway to get to his house. Who should maintain the driveway that leads from the public street? Well, it's neighborly to discuss with Bigtrees and then share costs appropriately. But under easement language, Budwad would be responsible to maintain the driveway from the public street to his Budwad's house...
    That is correct. If Budwad wants to get to his house he will have to maintain the road to his house. If bigtrees wants to share the cost that is all well and good. But the law doesn't require him to do so unless there is something in the grant that requires it]



    Quote Quoting bigtrees
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    I still maintain that, in general, right of way easements grant both access as well as utilities. Every access easement I have seen also includes rights to install utilities. I am sure there are some that don't, but most do.....
    How many of the millions of easements grants have you seen? Your little world of information on easement law doesn't begin to cover centuries of established law.

    I
    Quote Quoting bigtrees
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    t is interesting to note, Budwad, that in 2015, you cited case law that granted a person the right to install utilities on an access easement. http://scholar.google.com/scholar_ca...63190497152701. You can read your post here where you say that, in case you've forgotten. https://www.expertlaw.com/forums/sho...d.php?t=192374

    You're correct in saying that if an easement grants only access and not utilities, one may have to get the courts involved to ensure that utilities can be routed. One way or another, the landlocked parcel will get utilities....
    As I said, a court can rule that an easement that does not grant the right to install utilities can (after taking into account the intent of the grantor and grantee) the right to install utilities. What's your point? In that case, it was a court ordered easement by necessity not an easement by grant. There is a big difference. You can't mix and match your laws to suit your argument.

    Quote Quoting bigtrees
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    A two lane road is approximately 24 feet of paved surface. This is fine. The developer would add ditches (two 8' wide strips of land), which then gets to 40, and would have an additional 5 feet for vegetation maintenance outside of the ditches. That's a properly designed road. A 50 foot wide paved road is not correct, and paving all 50 feet of the easement area would be misuse of the easement, because it's far in excess to what is needed for accessing the property.
    How many times do I have to say the same thing? It's not what you think, it is what the case law says and what the intent of the grantor and grantee was at the time of the grant.

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