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  1. #1

    Default Easement Maintenance Responsiblity in West Virginia

    Hello. I live live in West Virginia so this is a WV legal question.

    A - servient estate.
    B - prescriptive right-of-way. Not land locked and has other access road.
    C - deeded 30' right-of-way. Land locked.

    All 3 use the easement on a regular basis. The easement runs through A, along the west side of B, and ends at C.

    Over the years, A has maintained the easement by grading, placing gravel, etc. making sure the easement is in excellent condition and up to state specifications. At no time whatsoever has the easement been obstructed or maintained in a manner that would prevent B or C from using it.

    B at one point in the past tried to do some work on the easement which ended up diverting water onto property A and onto another property, and cut down trees located on Property A taking the usable wood and pushing the large unusuable stumps down the hill onto prop A. A has a letter from the EPA stating how the easement was damaged in reference to the culverts diverting water.

    I cannot seem to find any specific law regarding who has the right/duty/obligation to maintain an easement. What I could find is this from Moran v. Edman.

    "The duty to maintain an easement in such condition that it may be enjoyed is upon those entitled to its use, in the absence of some contractual or prescriptive obligation upon the owner of the servient estate to so maintain it." Syllabus point 2, Carson v. Jackson Land and Mining Company, 90 W.Va. 781, 111 S.E. 846 (1922).

    In this case, Moran v. Edman, Edman being the servient estate, the court found that Edman did not have to contribute to the maintanence of the prescripted easement. I cannot seem to find the Carson v. Jackson case to see what the exact judgment was or what the situation was.

    Everything I can find also seems to state the same. The duty to maintain an easement is on those who are entitled to use it. Which in this case would be B and C and I would assume A since A also owns the property in which the easement is located and uses it. They are all entitled to use it.

    That being said, here is my question.

    Does the person who is entitled to use the easement, the servient tenement, have grounds to sue the servient estate for maintaing the easement, which is on his own property, and is being maintained in a way that does not obstruct use by the tenement?

    Here is what happened?

    A sold 10 acres to C and built a house there. C borders A and B. B was not happy, does not like A, and has harrassed A since A bought the property 14 years ago. In the past, B was basically the main user of the easement with A using it once in a while to walk, jog, drive on, etc.. B at one time asked permission to put up 2 poles and a cable at the end of the road and was given permission. (A was trying to keep the peace and also thought he had a moral obligation to make sure the easement was well taken care of and it was.) These were put in but for the majority of the time, the cable lay on the ground and very rarely was actually hooked up to block the easement. When A sold 10 acres to C, which is land locked and the only way in is the easement, the permission to have the cable and poles was obvious taken away and B was notified to remove the poles as C had a deeded 30' ROW. They refused and actually went as far as to start putting up the cable with a lock while people were on prop C as to lock them in or lock people out. A took down the poles and cable, not damaging them, and brought them to B.

    B has sued A & C claiming A took dirt from the easement, damaged their property, and caused excessive noise via a generator and chickens taking away their right for quiet enjoyment. (We live in a mountainous area where everyone's property is open and everyone has animals, including B.) They also asked for A to pay for all legal fees. They had no proof, no witnesses, no pictures, nothing. A brought in pictures showing how far away the generator and chickens were from property B which proved they were too far away to really bother them or anyone else for that matter. A brought in pictures of the easement to show it was in excellent condition. A also had witnesses. The total amount was for about $3,000.

    The judgement was made for B. A has to pay all legal fees, damages to the easement, was not allowed to run his generator, had to move the chickens (which are on C property), and C is not allowed to keep any animals within 200' of the property line of B.

    How in the world can a judge tell someone they cannot use 200' of their property?????!!!

    If I am intepreting the law correctly, it seems that A, B, and C can maintain that easement at their own expense and should not be able to sue A or C for damages or force them to pitch in and pay for it. A is doing something good for B & C who use the road and B sues for good deeds. WHAT??!!!! and the judge allows it. The judgement seems to go against Moran v. Edman and Carson v. Jackson. This judge took over 2 months to render a decision and it seems to me if he would have read these cases, he would have decided that B had no case and threw it out. The case has been sent to the Court of Appeals but nothing has been heard yet. Still waiting since May.

    In the meantime, A has surveyed off a section of land east of the easement and south of B and is currently building a house there. During the time he has been building the house, he has always made sure that the road is maintained because B and C have to drive past the construction site to get to thier homes. Nothing has ever been taken from the road and the road has never been changed in any way except for keeping the gravel even with no holes, etc... The contruction is not interfering with the use of the road in any way.

    Just this last week, B filed another lawsuit against A claiming he caused $13,000 of damage to the road. Are these people insane??

    This is like giving someone a million dollars and having them sue you for giving it to them. It makes no sense.

    Has anyone ever heard of this before? Something just does not sound right with the judges decision.

    Oh, I do have one other question? Who has the right to name the road/easement? A or B. We are just now in the process of naming roads in our county for 911. B put in a request to name the road 1 week before A did. The road naming comission granted A's request and put a sign up (I assume because he owns the property the road is located on). A few weeks later, the road naming commission sent a letter saying they made a mistake, that B's request was filed first and that they would be changing the road name. So now, there are 2 signs up with 2 different road names and both names are still logged with the road naming commission as legal street names but slightly different addresses. Is that crazy or what? At first ,what made sense to me was the the property owner should have the right to name his own road. Otherwise, anyone could go anywhere on anyone's property and name thier road. Property C already has the deed and all their records with the first road name. Can someone give me some case law on this where a decision has been made in the past?

    Thanks in advance.

  2. #2
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    Default Re: Easement maintanence question. WV

    without reading the entire book (I know, details) and without looking up germane law for your state but using the decision you posted;

    each entity that uses the property is liable for the maintaninance of the easment. In most siutations, the courts require each entity to share in the costs proportionately to their amount of use and damage to the easement.

    So, if you use it 1% compared to the others 99%, then you owe 1% of the costs to maintain the easement, regardless of who does the work.

    In some states, it is actually the servient tenants duty to maintain an easement but with the costs shared proportioantely as earlier described. That is, after all, about the most fair method.

    Does the person who is entitled to use the easement, the servient tenement, have grounds to sue the servient estate for maintaing the easement, which is on his own property, and is being maintained in a way that does not obstruct use by the tenement?
    You lost me on that one. The person who is entitled to use the easement is the dominant tenant and his property (the property whose owners enjoy use of the easement) is the dominant tenement. The owner of the land the easement crosses is the servient tenant and the property the easement crosses is the serviant tenement.

    as to naming the easement; I have never heard of naming an easment, at least as far as officially, as it is still private property and is not a road in any sense. It is a piece of property that can be used by another to access their property. So, if a person was allowed to name the easement, I would have to say the owner of the property itself (servient tenant) should have those rights. Unless such rights are granted to the dominant tenant by deed or contract, the property is still owned by the serviant tenant with all rights to the property except preventing others from using the property as the easement grant allows.

  3. #3

    Default Re: Easement maintanence question. WV

    I see what you are saying about sharing in the cost based on how much each person uses the easement. That does seem the fairest way to do it and maybe an agreement should be put in writing to avoid all this in the future since that area is growing and there will be more neighbors there in the near future.

    In reading the case I noted Moran v. Edman, if I am reading it correctly, that is not what to court ruled. The court ruled the servient tenement was not responsible for maintaining the road and that the dominant tenement was.

    "The duty to maintain an easement in such condition that it may be enjoyed is upon those entitled to its use (i.e. dominant tenement), in the absence of some contractual or prescriptive obligation upon the owner of the servient estate (i.e. servient tenement) to so maintain it." Syllabus point 2, Carson v. Jackson Land and Mining Company, 90 W.Va. 781, 111 S.E. 846 (1922)."

    So in the book I wrote (sorry it was so long), the servient tenement has been maintaining the road when it was the duty of the dominant tenement to do so.

    So....my question is....does the dominant tenement have legal grounds to sue the servient tenement for losses that are not being sustained. The dominent tenement is not losing any money, in fact, they are being saved money. They do not have a financial interest in the easement being that the servient tenement is the one has to pay the taxes on it and the mortgage payment. If anything, taking into consideration the above case, the servient tenement has grounds to sue the dominent tenement to be reimbursed for the cost he has been bearing for 14 years for the maintainence of the easement. Of course, as I said, if you go by the judgment made in Moran v. Edman and Carson v. Jackson.

    This is like borrowing a car from a friend. It is not yours to keep, you are just using it. The friend comes over and washes it for you, puts gas in it for you, changes the oil for you, etc.... The friend is making the payments on it and is paying taxes on it. You can't go out and crash the car then turn around and sue your friend for the $3,000 of damage YOU just caused to HIS car. Your friend would be suing you for it. I know this is not the exact same thing but it is the only way I could think of to explain the situation going on here.

    I hope this clarifies the picture for you.

  4. #4
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    Default Re: Easement maintanence question. WV

    In reading the case I noted Moran v. Edman, if I am reading it correctly, that is not what to court ruled. The court ruled the servient tenement was not responsible for maintaining the road and that the dominant tenement was.
    I am presuming that in this case, the serviant tenant was not using the easement at all, which differs from your situation, where you, as the serviant tenant, are using the easement.

    As to the dominant tenant suing you? Possible. The thing is, in many states, it is the serviant tenants duty to maintain the easement BUT the cost is still to be born by those using the easement so suing you for his expenses would likely only result in you paying your prorated share (by use) of the costs anyway.

    I could not find any applicable WV statutes but I do not have a high threshold for tedium, which the WV website provides plenty of.

  5. #5

    Default Re: Easement Maintanence Responsiblity in West Virginia

    Unfortunately, the case I referred to does not specify whether the servient tenent used the easement or not and I cannot locate anything on the Carson v. Jackson case. So, I guess we will just have to wait and see what the Supreme Court decides. I don't understand how the dominant tenement can file another lawsuit when the first one is still waiting to be heard in the Supreme Court. I just do not see how the judge in this case can order the servient tenement to pay damages to the dominent tenement when no actual damages were incurred. And now, again, another lawsuit for a major amount which again they have not incurred. I could understand if they had already spent the money to upgrade the easement and then the servient tenement went out a destroyed it in way as to interrupt their enjoyment of it but that is not the case.

    It seems to me based on what case law I could find and some of the information you and others have given me, the servient tenement could possibly have grounds to sue the dominant tenement for reimbursement for the years the servient tenement did not use the easement at all and maybe for a portion of the cost for the last 2 years the servient tenement has been sharing the use of the easement equally with the dominant tenement. I just can figure out how the judge decided the case the way he did. At the time the first lawsuit was filed, the servient tenement had only been using the easement a few months. Not to mention the dominent tenement provided no proof of their financial loss or that their enjoyment of the easement was interrupted in any way. However, proof was presented by the servient tenement that the easement was well-maintained. It is just a very frustrating situation that makes no sense whatsover. If anything, the dominent tenement should be appreciative that the servient tenement is doing their job for them.

  6. #6
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    Default Re: Easement Maintanence Responsiblity in West Virginia

    don;t get lost on that case. stick with yours, especially if you do not believe it may not apply to your situation.

    I think you misread the Moran v. Edman ruling as well.

    as to suing for past work, I suspect a statute of limitations would prevent a suit from much more than a few years. (again, haven;t looked up specific laws)

    I suggest speaking with a local attorney as many decisions for this type of action vary dependant upon the local custom.

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