In 1995 Owner A conveys a lot to Owner B reserving for a driveway easement. The sketch plan produced and attached to the deed depicts a designed driveway with grading within a defined easement that is substantially larger than the driveway itself.
Now, Owner A's heirs would like to construct the driveway. There are conservation permits necessary and it would be better to modify the exact location of the driveway. It will remain within the easement but not within the location depicted on the easement sketch. The deed does not specify that the exact location is used, but one could potentially imply it.
Can the driveway be relocated within the easement or is it bound to the sketch?
If the future driveway is bound to the sketch - therefore you could not modify it without the neighbor's permission, then could you modify it down to a walking path without the neighbor's permission?
Without benefit of seeing the easement language, and assuming that it does not have anything to say about the construction matching the drawing and also assuming that the easement language grants the easement, without reservations, for the purpose of a road (or access), then I would say that the constructed road could go anywhere in the easement. Otherwise, what is the point of the easement being draw or described that way? Why not just show the smaller road?
Is the easement actually described? Is it possible there was some previously existing road?
In the end, it will likely be a question for lawyers.
> > Can the driveway be relocated within the easement or is it bound to the sketch?
>
Does the conveyance specifically mention the sketch? If so, how is it worded? Barring any language to the contrary, the driveway can be relocated within the easement. Barring any language to the contrary, the sketch of the proposed driveway is not binding. The documents convey the rights to the easement. They don't control the characteristics of the improvements.
> If the future driveway is bound to the sketch - therefore you could not modify it without the neighbor's permission, then could you modify it down to a walking path without the neighbor's permission?
If it were an ingress - egress easement, then certainly, you could modify it down to a walking path. But, as it is a driveway easement, then it is not so certain. However, the difference between some driveways and walking paths are just shades of grey, and as walking paths generally have less impact on real property than driveways, I think it would be odd that a serviant estate would press this in court, and possibly would not prevail because of it. They would have to argue that their land was not being impacted enough, that the dominant estate was "under burdening" their easement.
Stephen
SOunds like a crazy idea for them to have put the driveway engineering into an easement sketch. Without seeing the language, it would seem to imply that the driveway would have to be built per the sketch. If it was me, as a layperson, I would probably take my chances and put the driveway in however I wanted (staying inside the easement), but as a professional it might be risky to advice the client to do so.
I hate to use the L word, but maybe get a l**yer involved?
So long as the necessary construction stays within the easement area why couldn't it be re-located?
The engineer design would have to be specifically included in the easement document to control location as well.
Do you know any good lawyers down your way? 🙂
Back in 1995, the lawyer was a bit lazy and took a driveway design, reduced it down to the 8-1/2 x 11 recording size and attached it to the deed. The original plan was on 18x24.
I know good lawyers, unfortunately they don't practice this kind of law... there are two attorneys involved and they are butting heads.
This is an interesting question and although there is a large engineering component, there is a good surveying aspect. If it is the case that when an attorney uses an engineering plan for an easement sketch and then becomes bound to the design in perpetuity, it would be an excellent opportunity for a surveyor to preemptively correct an attorney's error and actually create an easement sketch that does not include the engineering. Conversely, if it makes no difference if the sketch contains a proposed driveway, then the attorneys can continue to save their clients money by not engaging a surveyor's services to draw the easement sketch.
Now for the bonus question: Was the intent of this to create a shared driveway? Would the Sparkman folks be responsible for constructing a driveway per the plan as well? Look closely, their driveway shows up too.
This is an area heavily overgrown with invasive bush honeysuckle with some trees popping up here and there.
Ah ha!
from page 2 of your deed...the LOCATION of the reserved easement is shown in the aforementioned sketch
You are okay. Build it where you want within the easement. The sketch was included to depict only the location of the easement.
Please make out the check to: Perry Williams Esq.
Ah ha!
Sounds good to me. Now can you get Conservation to allow the driveway within their blessed 50' No-Touch Zone?
I see the deed clearly calls for the sketch, which is a site plan.
I think you are still clear to build whatever driveway you want. The wording of the conveyance says "a driveway" instead of "the driveway" and says "...and shown on accompanying site plan (paraphrasing)". Had it said "as shown..." that might be a stronger case for building just what was shown on the site plan. But it never specifically states the driveway is to be built as depicted.
This looks like an example of bad land conveyancing. Engineering products should be left out of the process. Specific characteristics of future improvements are not meant to be controlled by deeds.
Stephen
> In 1995 Owner A conveys a lot to Owner B reserving for a driveway easement. The sketch plan produced and attached to the deed depicts a designed driveway with grading within a defined easement that is substantially larger than the driveway itself.
>
> Now, Owner A's heirs would like to construct the driveway. There are conservation permits necessary and it would be better to modify the exact location of the driveway. It will remain within the easement but not within the location depicted on the easement sketch. The deed does not specify that the exact location is used, but one could potentially imply it.
>
> Can the driveway be relocated within the easement or is it bound to the sketch?
>
> If the future driveway is bound to the sketch - therefore you could not modify it without the neighbor's permission, then could you modify it down to a walking path without the neighbor's permission?
I hate to possibly complicate the issues, but will the Town of Chatham have anything to say about the location of the drive? I don't know their ordinance, but up here in my neck of the woods, there is this language in the ordinance(in reference to new construction):
"The center line of the roadway shall be the center line of the right-of-way."
Some PB members view this as "build the road first, and then create a description for the easement after." Others see it as "you will build the center of the drive exactly along the center of the easement."
Anyway, just a thought.
50' No touch zone?
I knew a girl like that once.
> Sounds good to me. Now can you get Conservation to allow the driveway within their blessed 50' No-Touch Zone?
I have seen many paper roads in my area which are the only legal access to existing building lots. Some these roads cross hundreds of feet of wetlands. Based on my experience, NH DES would not approve wetlands crossing in these areas, yet the town have been taxing them as building lots.
50' No touch zone?
Driveways are a "matter of right" in the ConsComm world. They can only regulate the method of construction with some limiting location issues.
Now that I see the deed and drawing, I would advise my client that the driveway is limited to that as shown.
This is because the is no written or depicted other width of the easement and the deed clearly states that the easement is as shown on the proposed site plan. I see the dashed line along one side, but that could have been a clearing limit on the original plans. It does not appear to be labeled or dimensioned in any way.
It is unfortunately a poorly written easement. Maybe if their were some way to show that the intent in granting the easement was different from the site plan it would be otherwise. I would think that without any other specific information that the easement would be interpreted pretty narrowly.
50' No touch zone?
Hmm, good luck with that one!
For a road yes, you must follow the centerline or obtain a waiver. A driveway is not micromanaged to this extent.
I almost wrote 'as long as the driveway is in the easement, the Town is happy' but in reality, the Town does not care. A driveway over the line is not the Town's problem.
The Cons Comm cares about the trees and habitat and their hidden agendas of anti-development, so the location on the 'sketch' will have difficulty meeting approval. In 1995 however, the driveway could have been built in the location on the 'sketch', so they should have built it then...
The sketch of the driveway was noted as a proposal in the deed document, the easement location was within the panhandle as stated in the deed document. Don't think you are restricted to the sketch location within the easement but are restricted to be within the panhandle with the road, don't see any restrictions on the width or type of road.
jud
Theoretically, if grading isn’t an issue, the driveway could encompass the entire ROW; much like the traveled-way of a public road does not encompass the entire ROW but could. If grading is an issue, you may need “slope easements” from the abutter??
Interesting situation.
In 5 or 10 years, when the lawyers have worked out what they screwed up in the first place, let us know what happened.
KS
