Driveway excursion from a ROW

rights of way can move by the easement equivalent of "adverse possession": that being by prescription. And/or the old easement location could possibly still be intact, creating both the prescriptive easement as well as the written easement. I would encourage that either the easement gets rewritten or the roadway get relocated into the correct easement.

How long it takes for a prescriptive easement to ripen varies from state to state. The time element might not be the same is it is for an adverse possession claim to ripen.

Who are you and why are you surveying my property?

Huh?

You described my situation to a T.

Oh! Sorry please. I'd never heard of a prescriptive easement, but now I have (Thank you, Tom).

Good luck with your situation. How did you/will you resolve it?

It is my understanding that a prescriptive easement is simply a claim until it has been adjudicated in court.

However, because most of theses types of claims involve government agencies claiming prescriptive roadway easements over privately owned lands, few probably go to court due to the abundance of historical case precedence.

I will leave it to someone better versed in these areas to correct me.

I always wonder when these types of situations crop up, which came first the driveway or the easement? That should make a big difference.

I often see instances where historical aerial photos/mapping reveal a driveway/road existing prior to the easement recording date. The easement was obviously written without the benefit of a ground survey. Is the road a monument to the intent of the easement? In other words the easement generally follows the shape of the road/driveway, but appears to be located in the incorrectly and came after the fact.

For a certain time period, "paper surveys" were common around here, where land was split off and easements granted, without a survey ever being performed.

> I always wonder when these types of situations crop up, which came first the driveway or the easement? That should make a big difference.

Good thought. I'll try to find out.
>
> I often see instances where historical aerial photos/mapping reveal a driveway/road existing prior to the easement recording date. The easement was obviously written without the benefit of a ground survey. Is the road a monument to the intent of the easement? In other words the easement generally follows the shape of the road/driveway, but appears to be located in the incorrectly and came after the fact.
>
> For a certain time period, "paper surveys" were common around here, where land was split off and easements granted, without a survey ever being performed.

There was a survey done, but the ROW could have all been on paper. There's certainly nothing in the field (in the way of rebar) from the original that would have marked it.

I'm not resolving it.

My property is about 200 feet off the highway. I have a 25 foot wide strip that I own to the highway. Adjoining that, I have a 25 foot wide ingress/egress easement. At the highway, my driveway is in neither of those tracts. It is on the tract that the strips were originally severed from.

I'm letting sleeping dogs lie. Why? Because as it stands now, no one else knows any different and I'm not having to mow those strips.

The Servient Owner Can Relocate It To Within The ROW

At his own expense.

Access is access, no complaint to be made.

In some cases it deviates because the ROW creates inaccessible access, so a remedy is required.

In the case of a future subdivision the access could be relocated to a newly created road.

Paul in PA

> I always wonder when these types of situations crop up, which came first the driveway or the easement? That should make a big difference.
>
Easement predated the driveway. Driveway was built by previous owners, who owned the land for some years prior to building the driveway (out of the ROW).

Here's the plat. Driveway is in yellow. Owner of parcels bounded at points 2 and3 subdivided his land Portion bounded in orange dashes). Rather than drawing the new property line right up to the edge of the ROW (so it would have access), the surveyor did a dog leg thing (E-F-G), I suppose, to make it legal.

But now, it'd probably cost a bundle, not to mention it'd be a pain in the you know what, to get the drive back into the ROW and jog it around like that. Plowing would be a pain too.

Not sure it's an issue, but still curious.

Always look at the easement deed descriptions for this type of thing. If there were tracks, the deed might even refer to the existing driveway. If it did that, the original tracks would control over the bearing and distance calls since they would be the original "monument". In this case, it sounds like the tracks or roadway wasn't in place yet and wouldn't be referenced in the easement description.

Possibly you could have the parties "extinguish" the old deed and locate and reference the existing driveway in a new deed. (And as discussed, the existing driveway could become the easement by prescription. But in cases of adverse possession, and prescription the actual clear title might not exist until it has been adjudicated in court.) If everyone is in agreement with letting the road become the new easement, the paperwork would be the cleanest way to finalize that.

Of course I am not a lawyer. Just sharing my opinion.

No mention of the driveway on the easement description. Easement description long predated the driveway. We've got to decide whether it's in our best interest to allow the driveway to continue to be where it is, or have it moved. Not sure about that yet.

It was quite an interesting development during my ongoing "educational endeavor" into surveying (As you may know, I'm NOT a surveyor, and NOT surveying, only mapping. But as I progressed mapping the driveway, it got further and further out of where I thought the ROW was. I suspected my ancient optical theodolite I was using at the time, my techniques, my lack of experience, lack of knowledge of how to add side shots to bolster my confidence in what I was seeing when I plotted my points.

That's when I got the survey of the property next door from the Town Clerk's Office, and it was all laid out as shown, confirming my neophytic findings!

Point to consider. Did the description for the right-of-way begin at the wrong point? If it was shoved about 30 feet towards the center of the main road, instead of starting at the side of the road, things would fit much, much better. Could be a simple error.

> Point to consider. Did the description for the right-of-way begin at the wrong point? If it was shoved about 30 feet towards the center of the main road, instead of starting at the side of the road, things would fit much, much better. Could be a simple error.

Good thought, but no. The right of way is described in full and starts at point A, which is on the State Highway ROW.

Second point to consider. Has the right-of-way ever been widened such that the description could have been written when the right-of-way was narrower. It does happen, you know.

Not that I know of, (haven't done a full title search), but it's highly unlikely, as the surveyor that did the most recent work references the last survey that was done, and includes much of the same descriptions.

If there was some subsequent survey (after the one he referenced, but before he did his, he'd have used that, I'm sure.