Paul, I think you are missing Holy Cow's point. In many states section lines are the center lines of public easements by law, so a section line is just the equivalent to the centerline of a county road or state highway.
@aliquot that is what I was afraid of - the cost and uncertainty.?ÿ However, one of the adjacent parcels is owned by the town to whom I pay property taxes and taxes that I think are excessive.?ÿ Indeed, one of the other adjoining properties through which access would open up my land, is accessed at a very, very low market value per acre and mine, literally adjacent to it is accessed at an exorbitant market value per acre (we use 100% market value for assessment here).?ÿ I filed a grievance which as turned down by the town for "insufficient evidence" even though I cited the adjacent property and other properties all of those cited (for comparison purposes) having unfettered access to a public road whereas mine does not.?ÿ I believe that in itself (difficult access) would reduce my property taxes but the town nixed that.?ÿ
Wondering how the word "access" is interpreted by the courts??ÿ Which I think in my attempts to build a homestead on the property is important to know.
Not an easement by necessity, which I don't think you would qualify for. The private condemnation is available in NY when all other things fail. It exists for public policy reasons. Essentially, gives a way to obtain legal access (in this case a route that allows a building permit) by forcing someone to sell to you. I don't recall all the conditions, you would need an attorney to look into it, might not fit your situation.
Yes, don't know about New York but here in California our courts aren't strict in many things but they are strict in Easement by Necessity. They are reluctant to force the neighbors to give up an easement if there is any alternative no matter how inconvenient or expensive. There is a case in Nevada County with a similar fact scenario (tract touches public road but there is a very high bank), Court said no to an easement by necessity.
Update: what if I found an historical easement or ROW that was somehow dropped from subsequent deeds?
An apputenant easement conveys with the property whether it's mentioned in subsequent deeds or not. You would have to find it in the chain of title to prove it exists.
If it's merely not mentioned, it probably still exists. A current survey should show something like that.
I presume if I found one I would still have to fight for the right to use in a court, no?
Yes probably. Opposing side could argue abandonment among other things. One of the reasons I mention private condemnation is because you would concede that nothing exists currently that can be used (at least for modern purposes). This avoids lengthy court battles over many possible issues. The battle becomes one of how much it is worth. Not much of a battle about whether it's needed or not because you have the denial of building permit in hand.
So to be clear, a condemnation would be brought against which party: my parcel or an adjoining parcel that has access to public roads??ÿ I do know for a fact (I've read it in the deed of an adjoining property) that one of the vacant, unused properties adjacent to mine has an easement or ROW granting it access to an adjacent property of theirs which allows them to come and go onto their property.?ÿ As I said, that property is not in use and vacant land.?ÿ In fact, it's the one I cited as having a far lower tax assessment than mine.
I see - you mean I would basically condemn my own property and arrive at a value for whom. . .?ÿ the town or someone pays me the value of the property??ÿ I see I do it against my property but who pays??ÿ Once paid do they then own the property or is this just compensation from them?
I'm aware these are questions suited for an attorney, and I understand all the information expressed here is just opinion, but attorneys are very expensive to even ask a question of and quite frankly, I believe the members of this forum are very likely more knowledgeable in this field as they work day in and day out with these sorts of obstacles.?ÿ
Thank you everyone for your excellent advise!
I've read the thread and am hesitant to chime in concerning a Colonial State matter, but one way to look at it is you are not landlocked.?ÿ Your 19% driveway allows access by foot, horse, Jeep etc. to fully enjoy your parcel in its present state.?ÿ But, because constructing permanent improvements involves a permitting process and your access road doesn't meet standards, you are precluded from building structures on your parcel.?ÿ It's a reasonable stricture by the local agency, concerning fire engine access and a host of other matters.
You're sort of screwed unless you can buy an alternative access corridor from your neighbor(s), or re-engineer your driveway by upgrading to concrete, etc., or adding switchbacks wholly on your property which would lower the grade to a permissible rate ($$$).?ÿ I've seen similar situations in Cadastral States (my sandbox) where an owner has access, exceeds minimum lot size, has electric & water utility availability, but the parcel won't perc test for a septic system, so no permanent habitation structures are allowed.?ÿ Sad.
Your options are limited but you seem to be pursuing worthy options.?ÿ Have a Title Insurance company do some deep research (beyond the last time they insured the parcel which is typical) or even hire a land surveyor who may be able to tease out ancient documents which prove alternate access over adjacent parcels (imagine that) which are acceptable to the local permitting agency.
I suspect your investigations will turn up dry and you're stuck with an unsuitable parcel for improvement and your best alternative is to sell to an adjacent owner at a loss and find a parcel which is develop-able nearby if that's your goal.
BTW, I'm not an attorney, just a lowly land surveyor so anything I've said will not hold up in Court.
Anything less than 1 acre or a place that is an area?ÿ or a property that the soil will not allow use of a septic tank system is usually fixed by installing some form of aerobic water system that is dependent upon a regular maintenance program.
All across America, the width of trails and wagon roads have expanded to meet the traffic needs and many original boundaries are within and crossing the rural roads making the land the roads occupy owned by individuals, many of which must pay property taxes on that land and others it being exempted from taxes.
With State or Federal highways, and City Streets the land is taken and owners compensated for their land.
The landowner will usually have access to that roadway unless some zoning law or Federal highway purpose prohibits direct access.
In Texas, the State law allows access along any former roadway that has ever serviced that property regardless of whose land it does cross. This can be a very costly process to determine, both in locating on the ground and as it passes thru the various courtrooms. In all my experiences, the Superior Court in Texas has upheld passage along with the original entry.
@mike-marks now I feel I am getting somewhere.?ÿ Thanks for the frank assessment.?ÿ I've never heard of nor has the town supervisor mentioned anything about a concrete driveway.?ÿ But my feeling is that the Town is very uncooperative given that they once approached me and asked that I donate the land to them saying "You can't do anything with that property, why don't you just give it to us?"?ÿ They have an idea to put cable cars over my property so that they can shuttle tourists from one area of the village to another.?ÿ I guess from their viewpoint, I'm standing in their way.
Let's say I found ancient documents which prove alternate access over adjacent parcels (very possible as my preliminary online research shows a number of adjacent smaller parcels directly to my west which do have these covenants) wouldn't I still have to sue these parties for access?
If you can or know enough to elaborate on the concrete roadway perhaps that's an option.?ÿ Switchbacks are out of the question: the existing dirt road literally snakes along a precipitous cliff.
Help!
@a-harris you make a good point: I don't like paying land taxes on a property accessed at full market value equivalent to homes that have access to public roads and mine does not!
You own to the center of the road. The exception merely grants the public an easement...a right of passage. The owner still has rights to the centerline that are not inconsistant with the public's right of passage.
It's kind of like crossing a rail line when driving your car. That portion of the rail is subject to the public to pass over the line. However, just like the railroad, you can cause others to move. Parking and loitering is not considered an exercise of the public easement or passage over the lands which grant the easement.
If you find conclusive written proof of an easment you don't neccisarily have to sue. If you notify the servient estate (the property your access goes through) of your intention to build the access, they will either allow you to build it, sue you to stop, or physically block you. If they don't allow you to build, you may have to sue, but the majority of access easments ger consteucted without the courts being involved.
The important thing is to make sure the easement is valid and that you understand the location, a surveyor and maybe an attorney will be required for this.
@aliquot thanks for clearing that up.?ÿ As I thought my choices are either private condemnation as @Duane Fryire Duane Frymire suggested or finding an easement that runs with the property.?ÿ Someone correct me if I'm wrong but private condemnation is a suit against the other property with access, not my plot, correct??ÿ I did some searches on the term but they didn't help clear that up.
But my feeling is that the Town is very uncooperative given that they once approached me and asked that I donate the land to them saying "You can't do anything with that property, why don't you just give it to us?"?ÿ They have an idea to put cable cars over my property so that they can shuttle tourists from one area of the village to another.?ÿ
If they said that it's a totally inappropriate abuse of governmental powers.?ÿ Is it possible they actually said ".?ÿ .?ÿ .?ÿ why don't you sell it to us at fair market value?"?ÿ ?ÿ And, if a cable car system is their scheme they could easily initiate a condemnation proceeding for an aerial easement over your parcel, for which you would be compensated.?ÿ Something is smelling fishy here.
Anyway, is the driveway grade restriction which makes your parcel un-buildable clearly and unequivocally delineated in the Town's zoning/permitting documents or are they pulling a rabbit out out of a hat to force you to sell/abandon your parcel??ÿ Is there really no engineering solution to your problem??ÿ And, are they applying the restriction arbitrarily??ÿ Maybe drive around and look at other driveways in their jurisdiction, are there the same or steeper driveways in use??ÿ If so, you have an equal treatment case worth pursuing.
I note your parcel is about five acres in size (assuming the Gas company didn't purchase more than a necessary pipeline corridor), in cliffy steep terrain and situated somewhere in New York State, in a Town that is some sort of tourist destination considering they're contemplating an expensive cable car transit system.?ÿ That smells like valuable land to me.?ÿ Is your parcel in/near a ski resort??ÿ New York features 43 ski areas, more than any other state in the US.?ÿ Five acres?ÿ in central Nevada, meh, could be nearly worthless, but five acres in NY State, in/near a destination ski resort town, that's a horse of a different color.?ÿ If you can't afford the up front money pursuing the chutes and ladders to gain/bribe/buy build-able access to your parcel, consider selling to a developer with the horsepower to push back against the Town, and engineer an access solution ($$$) and turn your parcel into a destination housing complex for tourists.?ÿ You could make a tidy profit by doing so and they will too.?ÿ With the profits from the sale, you could buy a similar parcel elsewhere for your woodsy summer cabin or permanent residence if that's your goal.
It sounds like this five acre parcel purchased 50 years ago (when steep terrain land was dirt cheap) dropped on your lap unimproved when your Dad died and now you're pursuing how to maximize profit before putting it on the market and somehow clearing the access problem.?ÿ Much better is to offer it on the open market with the access defect and see how the market responds.?ÿ I'd suggest you consult with several real estate agents who regularly offer to developers instead of private homeowner types and look at the offers.?ÿ Get a handle on what you've got is worth on the market before diving into litigation concerning access rights.?ÿ
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Regarding something fishy, well that may be correct: it looks as if the town is amassing ownership of the lots around my plot in ownership not in the town's name, but in LLC's that are represented by the town's legal firm.?ÿ
All very good suggestions and I will do as you suggest.?ÿ The forum has been exceedingly helpful in giving me an insight into what my options are of which your latest suggestion is very smart.?ÿ I don't want to get into litigation as I know it is costly with an unpredictable outcome.?ÿ Tomorrow I'm going to the county seat and research for old easements and ROW's.?ÿ If nothing turns up I'll consider the strategy you put forth.?ÿ
Thanks Mike.?ÿ Very helpful.
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