This is a long, convoluted story, so I will try to be brief:
My client hired me to provide an exhibit map, as he is having some problems with his neighbor. About 20 years ago, when he purchased the property, he got an easement from the owner of a lot in a plat. he owns about 5 acres to the north of the plat and has a metes and bounds description. Before that, he had access on the east side of the plat; but the previous owner was accessing his property through the plat and he wanted to continue doing that.
The plat has a private road that ends in a cul-de-sac. It is a single lane gravel driveway in a 50' wide/50' radius private right-of-way. The easement he was granted is the west 50' of a vacant lot, but the gravel driveway he is using begins in the easement (barely) and quickly angles off to the east into the remainder of the vacant lot. Thus the prescriptive easement.
Everything was fine until a few years ago when the owner of the vacant lot sold it and the house they were living in, to someone that doesn't like him driving across her property.
She planted a big bush out in the cul-de-sac and placed some big boulders next to it, in the inside corner of where my client turns to drive across the vacant lot. She also placed some smaller rocks along the west side of the gravel driveway, near the north end of her vacant lot; making it difficult for my client to swing wide with his horse trailer or have large delivery vehicles access his property.
So here is my problem; I provided a map and he doesn't like it. He says that I should make the width of the gravel bigger, because that's where he drives, sometimes, like when he pulls his horse trailer in, or has something delivered, like UPS. He also says that I should write a legal description and stake it on the ground.
I don't feel comfortable doing this so I thought I'd seek the sage advice of you Beer Leggers, because I know that you know everything...;-)
Oh, and his attourney tells him that he has surveyors do this for him all the time and can't see what my problem is.
TIA
Dugger
Sounds to me he crossed the land with permission - nothing adverse in your narative - so the time period for prescription never started running. At least in my corners of the world prescription is to an easement as adverse possession is to fee. Based on what you have said I would conclude there is no prescription.
Dugger,
IMHO: I would have no problem showing the existing gravel on the survey (you apparently already have). I would have a problem making anything "bigger" than the visible limits of the existing gravel drive... and labeled as such, BTW.
I don't see a thing wrong with describing the traveled area with a metes and bounds..or maybe so-many-feet-both-sides-of-a-described centerline.
I would show the existing 50' easement. I would only describe the drive on the drawing as "visible limits of the existing gravel drive... ".
Just shooting from the hip, I believe the unplatted property that uses this drive as access is the dominant estate in this case and probably has at least color of title to a prescriptive easement. But I would probably not label it as such on my survey. And I probably wouldn't 'stake' an existing drive...it's plenty visible.
I'm not so sure that the mere existance of the drive qualifies it as a dominant easement. There are factors unknown that a physical survey of the property wouldn't necessarily bring to light (previous agreements, etc.). Let them duke it out.
> So here is my problem; I provided a map and he doesn't like it. He says that I should make the width of the gravel bigger, because that's where he drives, sometimes, like when he pulls his horse trailer in, or has something delivered, like UPS. He also says that I should write a legal description and stake it on the ground.
>
> I don't feel comfortable doing this so I thought I'd seek the sage advice of you Beer Leggers, because I know that you know everything...;-)
>
>
> Oh, and his attourney tells him that he has surveyors do this for him all the time and can't see what my problem is.
>
What I usually do is meet with the attorney and/or client, preferably on site, and work out what I am comfortable showing based on my personally observed conditions before I started surveying. But it sounds like it is too late for that. Maybe one solution is show what you are comfortable with and can certify to and include what the client/attorney wants shown with notes clearly explaining the situation. As for the description and stakes, I've described the centerline of a well defined traveled way, but the issue of the determination of the width is for the court to find from the evidence presented by BOTH parties. I've never been asked to stake such an easement unless it was previously of record or after the issues of location and width are settled.
I am also having a hard time finding where this meets an adverse use of land. He had an easement but drove in the wrong location.
Nevertheless, even if he has met all of the requirements and technically has an unwritten easement, it's not for a surveyor to determine. You have located the driveway, but what is the underlying title? At most he has a claim to a prescriptive easement, but around these parts you would take that to the court, not just stake it out.
When a client asks me to push a stake or increase a boundary I say sure, but there will be a fee involved. When they ask how much, I explain that it will be the projected earnings of the rest of my career with no guarantee that another surveyor won't trump this purposeful flaw in my last project as a professional. Nobody's bitten yet, so no early retirement for me...
The monument of such a prescriptive easement is the gravel road or traveled way, so to speak. It is already monumented and needs no stakes. Stakes would be secondary to wherever the road actually is, so would a description.
In my opinion you can't locate the physical road and then make up math to say that the road is actually in a different location.
I like this:
> > Oh, and his attourney tells him that he has surveyors do this for him all the time and can't see what my problem is.
Maybe it's time to tell clients to tell the attorneys what to do with the same caveate that "attorneys do that all the time for me."
The attorney wants only facts and evidence that favor his client, and, for that reason, wants to influence experts to testify what they want them to say. The attorney should not be telling the surveyor how to taint the surveyor's findings.
The attorney should not be telling the surveyor how to taint the surveyor's findings.
:good:
Why is it so important to keep going where he is going? Apparently he has a written document saying he can go a certain way. Why not use what he definitely has a claim to use?
> Why is it so important to keep going where he is going? Apparently he has a written document saying he can go a certain way. Why not use what he definitely has a claim to use?
Ease of use and/or expense to change.
I'm kind of with Holy Cow here. Why not use the written easement. I think it will taint the claim for the prescriptive one (court might wonder the same thing). What about the private drive that leads to the lot. How does your client justify using that. Might need to prove the prescriptive use of that private drive also.
I'm with Dave Ingram. Sounds like permissive use, and therefore not prescriptive.
Simply because there is a traveled way does not make it prescriptive.
Adverse Claims Review: An adverse claim must meet all three requirements:
Open and Notorious (For all to see)
Continuous (self explanatory)
Hostile (without permission, defiant)
Also the statutory adverse time period must have elapsed.
He migrated off his described easement. The party he was encroaching on didn't seem to mind. Now the successor does. He needs to get within the bounds of what he has the right to use.
More fodder
After a little research, I believe we have two distinct 'easements' across the vacant lot.
While the written easement is not contested and exists, the road actually encroaches out of the boundary of the written easement. The dominant tenement (acreage) has the right to use that easement. The subservient tenement (plat) cannot be excluded from use of their lands outside of that easement.
An innocent 'encroachment' (the inadvertant use of lands by the dominant tenement) outside of the easement may create an equitable easement.
The difference in a prescriptive and equitable easement being:
Unlike a prescriptive easement, the encroachment must be innocent.
Unlike a prescriptive easement, if the encroachment is destroyed, the right to encroach terminates.
Unlike a prescriptive easement, compensation may be ordered.
The dominant tenement in this case (the client) probably wouldn't enjoy anybody bringing this angle to the attention of the owners of the underlying fee.
Sounds like a good range war is brewing.
I know this isn't your part of the problem but...
wouldn't it be cheaper for the guy to just put his driveway in the correct location?
Thank you-Everyone
Now this is the kind of discussion I like seeing on this board! 😀
@Brian Allen:
I met with the client; we went over what I felt comfortable with; I made a map and sent him a pdf to review. He made some comments and I revised the map. He said that would work and I made signed hard copies and delivered. He showed it to his attorney and he didn't like it, so now they want another revision.
I will probably do like you say, and make the revisions with a note. I just feel like I'm spending a lot more time on this than I should. Live and learn, I guess.
@Digger, Leon and Perry:
The 50' easement has a concrete sports court that the new neighbor built, plus she planted a row of cedar trees. And my client has a shed, just inside his property.
Thanks to everyone that responded
Is this a great board or what! :hi5:
Radar
I always used OCEANH to remember.
Open, Continuous, Exclusive, Adverse, Notorious, Hostile.
Color of title always helps and there's the statutory period.
The prescriptive easements needs to meet OCANH.
Thank you-Everyone
Did the neighbor encroach over the easement by enough to make the easement unusable? Now that is a great fact for the attorney. A dog of an attorney should be there with a simple solution: grant an easement of 50' in width around the gravel drive OR rip up the fancy concrete sports court.
Otherwise, see you in court.
In a course I took at the U. of M. a good many years ago, the professor (Jesse Fant, PhD, P.E., P.L.S.) gave examples of several similar situations in which the location of the traveled driveway departed from the described location. He said there had been a good many cases in which the servient (adjoining) owner asked a court to confine the driveway to the described area, and added that "no such adjoiner has yet prevailed."
Given the amount that Professor Fant knew about boundary and real-estate law, it's likely that there is some case law running in your client's favor, and the attorney should be looking for it.
It sounds as though you are hearing the client's version of what the attorney said. Both the client and the attorney (if he's being quoted accurately) seem not to understand what a surveyor can and can't do. Nothing unusual about that.
If you could find a few tire marks off the edge of the gravel, you could shoot them up and show and label them. It would also be possible to show the additional area that the client says he drives on, outside the labeled "Visible edge of gravel", and label it something like, "Additional area used for access, per information from [client's name]." That might not be all that useful in a legal dispute, but it would do no harm and wouldn't be a false statement on your part.
Your not the clients advocate . The Attorney and client will work you like a hand puppet if you let him . Educate them on your job . Show the facts only .
I would tell them you will stake the drive way on the ground when the signed easment for the driveway is in your hand otherwise its referenced location is on the survey.
Putting stake in the driveway will also put the adjoiner in defcom 3 .
> Your not the clients advocate . The Attorney and client will work you like a hand puppet if you let him . Educate them on your job . Show the facts only .
>
> I would tell them you will stake the drive way on the ground when the signed easment for the driveway is in your hand otherwise its referenced location is on the survey.
>
> Putting stake in the driveway will also put the adjoiner in defcom 3 .
great post!
DingDingDingDingWeHaveAWinner
Absolutely. The new owner has done pooped in her Cheerios. The judge will laugh her out of the court room. She cannot extinquish the easement. She is forcing the adjoiner (your client) to take an alternate route which she will dislike even more than the original location.
