Road Easement and HELP Update

[DennisArrow]

Thought a brief update of:

http://www.tractorbynet.com/forums/rural-living/142475-easement-gate-question-help.html

would be in order:

In my last post I advised of the good news and blessings that the section above me of 10 acres was available for me to purchase. Turns out after the survey that it was 11.63 and cost a bit more; but that is just fine.

Yes, the county

(http://www.tractorbynet.com/forums/rural-living/144071-encroachment-advice-needed.html)

had encroached; but after meeting peacefully with him on the sight we made a lot of agreeements that would make me happy and keep the mining regulatory people off of him. In Georgia, the EPD, really does care about the private folks to make sure that mines do what they are supposed to do in a careful manner.
Ended up with free chert, landscaping of my property and their buffer strip, and good relations.

The new property includes a paved road from the state highway, up over the mountain, and back down the other side to my house. A little more than a half mile for the total road. The last portion as it heads down the hill to my house is/was pretty rough gravel/dirt. Brought in a motor grader and vibrator roller and a bunch of what is called crusher run. (granite that has been run through a crusher and comes out as powder and small fines) NOW I HAVE A ROAD that is ALL MINE and not shared. Well, most of it.

Just so you understand: The original 400 or so acres was owned by an ol boy who leased part of his land to the county to develop a "chert" mine/pit. (limestone/flint quary that makes excellent fill or road surface) This quarry fronts on a state highway; but to get to the back side up at the top of the mountain the county built an access dirt road. This all happened back in the 40's and 50's. In the 80's the landowner began to subdivide for residence acreages the 200 acres along the access road giving an easement to those new property owners. There are 11 of us with anything from less than an acre, 2 acres, 5, 10, 50, 70.........We all supposedly shared in the maintenance of this easement road. Being on the end of the road, guess who ended up doing all of the maintenance or vast majority? Most of the folks actually do or did nothing about the repairs except complain about the condition.
Over time, the folks that lived on the easement began to complain about the gravel trucks with dust, hazards, etc and complained to the EPA and mining regulatory folks. So, the property owner put in a seperate road from the state highway up to the back side of the mine. He ended up paving it because it is steep and winding and trucks were tearing themselves up getting to the mine. This new road meets the old easement road at the top of the mountain.
THIS ROAD is ALL MINE and PAVED.
Now, ..............this has turned out to be a long description but I do want you to understand.
OK..........The new land which includes the paved road closed two weeks ago, and yes, needs a lot of maintenance.(in subsequent threads I have a lot of questions about road cracks and pothole repair) It has been fairly ignored for 4 or 5 years as the county runs it's operation from the state highway. Anyway, down where it meets the highway, a new electric gate with an Apollo opener will finish being installed tomorrow.

Again, I am the last residence on the old gravel easement road. This goes on up the hill past me for a quarter mile or so to the back side of the mine and meets the paved road. It has been pretty much ignored for quite a few years. On the other side of the road is: the back of 3 property owners who have access to their homes/land on another section of the easement road and the CITY has a water tank/tower that they visit perhaps once a week.

The easement road has been considered by many as a public road. Many....MANY times I am awakened by my road alarm at 2 in the morning by folks out "looking" around. In the last few years me posting signs and greeting them with a shotgun and advising them that it isnt public has pretty much put a stop to the casual users that just happen to be checking out my barn or the water tower.

With the easement connecting to the paved road I am going to use that as MY entry. The electric gate on one end at the state highway, up the mountain, beautiful vista at the top, down the vastly improved gravel easement and there is my house.

Below me, I have put up a cable across the road. Yes, I have contacted the owners that have been "blocked". There is NO problem with any of them because their driveways are other places and only come up to the back side of their land on an infrequent basis. I put a combination lock on the cable and the city to get to their tank will "daisy chain" their own lock. NOBODY that has the rights to the easement has a problem.

Who does have a problem is a couple of good ol boys below me that have been using the road to ride their motorcycles or exercise their junker trucks up the easement road. These 2 guys have no property on this section of the easement and are really upset by it being closed to them. I refuse, after spending several thousand dollars to improve the dirt road so that it is what I call a gravel road interstate, to allow these ol boys the right to tear up the road. These are the same guys that in 10 years that I have lived here, that have never lifted a hand or bought a can of diesel to help maintain that same road.

So..........these 2 guys.....what to do.........???????..........I talked about it with them and ended up shaking hands with them understanding I hope, that the road was blocked to them because I had spent a bunch of money on it to improve it and I dont want it torn up, and to keep out the casual "visitor". I still worry about midnight vadalization. One of them early on threatened to take a chain saw to my posts. This guy has two sons that are felons with one being a meth dealer and I can see problems down the road.....no pun..........

God has blessed me so I guess I just turn the situation over to HIM.................

Thoughts about what to do?

Who to contact and give them the combination?.............
911.......did that
Phone company........did that
Electric company.........doing that tomorrow

Thanks for your thoughts guys...........God bless.........Dennis

 

[Tig]

Sounds like you are going about dealing with the two guys the right way. Face to face talk and a handshake. Consider the matter settled for now and put it out of your mind.
I do wonder if they have rights on this easement even though it does not access their property? For example I have legal right of way that is somewhat similar to your situation. The difference being that the only time I do travel on that small section is to grade the road and clear snow.

 

[wvpolekat]

Don't sweat the guys you cut off. They are more than likely just beating their chests to look tough.

On the list of people to have the combination:
Fire/EMS/Police (probably covered by 911)
Gas company?
Phone company?
Alarm company?
Friends/family that may drop by to check on you if they haven't heard from you and you may be hurt?

 

[cowboy357]

Don't sweat the guys you cut off. They are more than likely just beating their chests to look tough.

On the list of people to have the combination:
Fire/EMS/Police (probably covered by 911)
Gas company?
Phone company?
Alarm company?
Friends/family that may drop by to check on you if they haven't heard from you and you may be hurt?

I agree with the above list for people to have the combination. It also sounds like You have done everything You can do in a friendly manner . But the last thing I would do is let My guard down with the ones You say could be a potential problem.

These days a handshake dont mean much from those types that will More then likelly not let the matter go . i,d stay very alert & ready to deal with them if needed . But I,m not a very trusting person .

I have had to deal with the same type of people that had no right to the neighbors property that is just farmground , That They thought was their playground for 4 wheelers & dirt bikes & They didn,t care what They tore up . Talking did not work .

I wont go into how I did take care of the problem though , But They got the point finally . . Best of luck . Bob

 

[DennisArrow]

Thanks guys.........Can I assume that on an easement like mine, that a person of the beginning of the road does not have the RIGHT to go anywhere on the easement or is it just access to THEIR property? My real estate attorney advised me that this is the case but I would like further thoughts.............thanks.......Dennis

 

[mikefromnh]

Thanks guys.........Can I assume that on an easement like mine, that a person of the beginning of the road does not have the RIGHT to go anywhere on the easement or is it just access to THEIR property? My real estate attorney advised me that this is the case but I would like further thoughts.............thanks.......Dennis

Depends on how the row was written, trust your attorney.

 

[CurlyDave]

Depends on how the row was written, trust your attorney.

And get his opinion in writing now, before anything goes wrong.

If he just happens to be wrong, the fact that you sought legal advice prevents punitive damages against you.

 

[DennisArrow]

OK.........the saga continues............

I followed the good advice and contacted my real estate attorney this morning......Here's why:

I put a wooden post on each side of the easement road with a 3/8 cable and combination lock. Again, the guys who own property in line with me or above me have no problem with the situationas they do not yes the easement for ingress or egress. They only have property that backs up to the easement. The City, which has a water tank on it brought me a lock this morning to daisy chain with the combination lock...............

I did make a mistake though. I had talked with both of the guys below me who have the problems of "loosing access" three times about what I was going to do and where I was going to put the cable. NO PROBLEM............

The guy just to the south of me who has the biggest mouth and the main trouble maker has about 300 feet of property on the easement. From my property line it goes down hill for a couple of hundred feet and then flatens out. He has a chain link fence for that 200 feet and where the road flattens there is no fence. I asked/advised him that I wanted to put the cable down on the flat as when vehicles start and stop on the hill it will cause the road to get torn up..........

NOW after I install the cable he has a problem with me using HIS property for a post. GRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR............The guy next to him just keeps on insisting that I cant "shut down the road"..........No matter how many times I advise them that they have ingress and egress rights to their property on their deeds they fail to understand or at least accept the situation.........that I am merely limiting access to folks who have no business on the easement past their property.......

1. I need to limit liability of folks on the road because as it winds down the mountain on a 12-15% grade with a 200 foot gully to fall in, I would be liable.

2. Will they agree to maintain the road that I just spent a considerable sum in improving? Of course not nor will joy riders.

3. Will they pay for the vandalism and theft that occurs on the properties involved?

Anyway........the guy next door didnt have the nerve to call me but had the other guy do it and advised me that my post was considered trespassing and to remove it and the cable. Also that if I put it back up I would be in court..........

Sooooooo........I called my attorney this morning and advised him of the situation. He is looking up case law; but in the meantime totally agrees with me that I have every right to limit access..........After he checks case law he will write the guys a letter advising them basically what the law is and if we need to go further to contact him........

I really do NOT need this stress and appreciate your listening to me.......WISH I could just turn this over to God and get on with life.............

Meanwhile........Have moved 2 of my 3 road alarms to the perimeter between next door and me........helps me sleep what little rest I can get..............THANKS AGAIN.....Dennis

 

[cowboy357]

Sounds like a bad deal Dennis , Without seeing a layout of the property & who has what its hard to comment on . But I am curious as to why the others need acsess to the easement if You are the last one on the road ?

Maybe I,m not reading it right . We have a oil & gas pipeline easement on the Drive We share with another family & He farms the other side of the easement to the rear of our property which the oil field people can come though & damage his crop planted in the easement any time they want. But No others have a right to the easement other then them .

The Pipe on our side is now dead so No one ever comes on our side. or should & I have it gated . But if the Oil pipe guys decided to for some reason They can tear the gate down & do what They want & its a 50 foot easement on both sides of the drive . So I allways worry about them running a new line on our side . but not sure why they would want to . I know this dont help you any . Just thought I,d give My 2 bits.

Best of luck. as I do know how You feel & are putting up with. Bob

 

[DennisArrow]

Bob......thanks........The reason they need access beyond their property is because they just always assumed that they could. Yes, in the past years, when they felt like it they went up the road. In the last couple of years I have greeted them because my road alarm goes off and through advising them they have no right to be there their visits have diminished.

I guess it boils down to the fact that both of them have nothing except the junk in their yards and something is being taken away from them, even though they have no right to it. Hard to accept reality I guess, but my blood pressure and blood sugar level are what are suffering..........THANKS............Dennis

 

[DennisArrow]

I also need to add is that the land above me that I just puchased is loaded with game, totally private and serene, on top of the mountain with a great view, the quarry is a great target practice berm, and once was FREE to use. Now that I own it and have shut it down I guess it is hard to accept...........Just my thoughts but THANKS........Dennis

 

[cowboy357]

Thats kind of what I thought Dennis , Thanks for clearing that up . It does get very upsetting I know .

We also have a river that runs through the back of our property Which the property owners Own to the center on both sides . but people canoing or floating down the river think its public ground.

I built a little park area down there I cant see from the house & People trespass & tear stuff up all the time even though its posted . Only when I can hear them yelling or playing do I know someones there & I run them off nicelly only to here this is a public river , which is not the case & puts me in not so friendlly of a mood . People just have little respect for others property or privacy these days its really sad.

I hope You get your problem resolved soon . It just isn,t right . Best of luck. Bob

 

[HCJtractor]

Thats kind of what I thought Dennis , Thanks for clearing that up . It does get very upsetting I know .

We also have a river that runs through the back of our property Which the property owners Own to the center on both sides . but people canoing or floating down the river think its public ground.

I built a little park area down there I cant see from the house & People trespass & tear stuff up all the time even though its posted . Only when I can hear them yelling or playing do I know someones there & I run them off nicelly only to here this is a public river , which is not the case & puts me in not so friendlly of a mood . People just have little respect for others property or privacy these days its really sad.

I hope You get your problem resolved soon . It just isn,t right . Best of luck. Bob

Cowboy I fully understand your concern but from what I have been told, a river cannot be private if it is navigable, and if canoes can be floated down it, it seems to be. I agree the shore line is your property. A buddy of mine was hired in our state to prove a river was not navigable (a property owner was trying to keep people out of his lake) He floated the river in a small kayak, and had to drag it and carry it in places, and he testified that no way could a boat float this river. The judge disagreed and declared the river navigable and allowed public access. I think that it is awfully hard to keep people from using a river. Historically the use of a river to navigate is protected by law, even if the navigation is for pleasure only. I also own river property, but I can't stop people from floating it, and doubt that you can legally do it either. I don't necessarily agree with this, but that is the law if I understand it correctly. Rivers are different than easements and roads.

 

[Tig]

I have heard the navigable waters discussion before. I think the detail is that SOME riverbeds are actually deeded, as cowboy mentioned. In that case floating may be OK, but don't step out of the boat or run it ashore. In that case a beaver felled tree may solve the problem.
Again, a local attorney will have the facts.

 

[JayCat]

DennisArrow
I had a similar situation to yours on a smaller scale. The wording of our deeds was key since it said the other owner had the easement provided "Access for ingress and egress." If it had said the owner had only "access" to the easement then they could camp out on it etc.

The useless township supervisor was trying to make me out to be unreasonable by "controlling" the side of my land where the easement was located. My answer to him was this: I was under the mistaken impression since the easement was included in the land description of my deed that it was my land. Since you say it is not &I have been paying taxes on it for 10 years....I would to be reimbursed with interest by the end of the month. Before he could react...I added: Since you say it's not my land and I know it's not the neighbor's land...it must be a township road....when can I expect the township to begin maintaining the road? There are lots of things it needs......etc

He changed his mind.

If you haven't already, document EVERYTHING. Don't leave this up to your attorney. Show a paper trail history of your efforts to reach out and solve this. It's a pain but keep notes on everything the county, township, power company.... etc tells you. I had my neighbor lie to the power company about the property line and one day I came home and there was a new power pole in my yard!

J

 

[dmccarty]

Regarding access to rivers via navigation rights. It depends on the state. From what I have read in CO if you own the stream bed you own the river. Floating on the river can be treated as trespass. I read this a good decade ago so take it with some salt.

And what is considered navigable is debatable as well and will depend on state and maybe Federal law. What applies in one state might not be the law in another. Check a local legal beagle.

Back to the main subject.

If your post is on his land I think you have a problem.

Our land has a gravel road up the middle of the property. The property was subdivided into lots of 5ish acres but the land does not perk very well so it can't be cheaply built on. The developer lost some money on this 20-30 years ago. The first thing I did when we close was to put up a cable to block access. Eventually I put up a more permanent fence and gate. Because of the lay of the land and the road two sections of board fence 8 feet long and two 10 foot pipe gates work to close of the road.

Where the gate/fence is located I own the land on both sides of the road. People can and do come up to the gate. If it is open they will sometimes drive up to our house even though it is a GATE with several posted signs.

But since We own all of the land past the gate nobody has a reason to be up on the road. And we own the road. The lot lines go to the center line of the road.

If your "neighbors don't own land off the road I don't see how they can use the road. If you own both sides of the road I would just gate it and move on to the next set of problems which will be keeping the idiots off your land. I have cleared some of the property lines and I have put in T posts to mark my corners. Someone stole my T posts. They did not tear down the posted signs but they stole the T posts.

I have not decided if I will buy longer Tposts, say 8 footers and drive them four feet into the ground or just buy long lengths of rebar to put in the ground. The rebar might be easier to drive real deep.

Good Luck,
Dan