I am surveying a piece of property that has a 30' non-exclusive easement running through it along the east line for ingress/ egress to an adjacent development.
The road has yet to be built and I have discovered that my client has an existing fence that encroaches into the easement by about 6 feet.
I'm wondering what rights the dominent estate have to the full width? Obviously the road isn't going to take up the full 30', but could they still have them move the fence if they wanted?
The servient estate owns the underlying property; the dominant estate has the right to use the property of the servient for the intended purpose. The question should be posed: "does the fence interfere with the rights of the dominant estate?" In the scenario you've posed where the road has not yet been constructed, the fence can't be viewed as an interference. And, no, the dominant estate holder can't "have them move the fence if they wanted." The dominant holder could, however, choose to construct the roadway. Then the fence may (or may not) become an interference. The fence location wouldn't affect the width of the easement unless there was evidence of an intent on the dominant estate's behalf to abandon the easement on the other side of the fence. Barring any objective evidence of abandonment, I'd show the easement limit and show the fence.
Yep, as said, there is nothing (based upon what you've described) that would require the fence to be moved so long as it does not interfere with the rights granted in the easement. It is non-exclusive, so unless that fence is obstructing the enjoyment of the easement as granted, it should be fine.
The width of the road surface is irrelevant. The width of what may traverse along that easement is the determiner of the value of the easement. A thirty-foot wide combine header takes all 30 feet of the easement while the tires on the combine only require eight to sixteen feet.
Forty foot is a reasonable minimum easement in rural areas.
I had a silly client insist that she only needed a 12-foot easement and substantial barbed wire fences would be built precisely 12 feet apart. I will guarantee anyone that within five years she will be very upset when she only has six feet or less of clearance. If she uses chemicals to kill the vegetation that WILL GROW under and around the fences her brothers will string her up with a short rope from a high limb. That's just how friendly they are towards each other now and for the past several decades. She can attempt to side trim the tree branches that WILL EXIST along that 1700 feet (times two) but that will be a very time-consuming and/or expensive process. It is effectively impossible to get a truck and 30-foot stock trailer from the county road into the entrance. Similarly, a truck with a lowboy trailer hauling various construction equipment and/or materials to build her dream house will find that to be quite a challenge as well.
Holy Cow, post: 375049, member: 50 wrote: The width of the road surface is irrelevant. The width of what may traverse along that easement is the determiner of the value of the easement. A thirty-foot wide combine header takes all 30 feet of the easement while the tires on the combine only require eight to sixteen feet.
Forty foot is a reasonable minimum easement in rural areas.
I had a silly client insist that she only needed a 12-foot easement and substantial barbed wire fences would be built precisely 12 feet apart. I will guarantee anyone that within five years she will be very upset when she only has six feet or less of clearance. If she uses chemicals to kill the vegetation that WILL GROW under and around the fences her brothers will string her up with a short rope from a high limb. That's just how friendly they are towards each other now and for the past several decades. She can attempt to side trim the tree branches that WILL EXIST along that 1700 feet (times two) but that will be a very time-consuming and/or expensive process. It is effectively impossible to get a truck and 30-foot stock trailer from the county road into the entrance. Similarly, a truck with a lowboy trailer hauling various construction equipment and/or materials to build her dream house will find that to be quite a challenge as well.
Not to mention when one is headed towards the home along this 12' easement and encounters another person headed away from the home along the same easement. Someone is going to have to back up a LONG way!
