So I am retracing a property that has been surveyed in whole by one other person and in part by another. Both previous surveyors show a 800 foot long access easement but neither of them show the driveway being almost entirely out of the easement for the entire length and the driveway has been there for a long time. Now the larger tract has sold which the easement crosses and the new owner asked me if he can fence it off & I originally told him no way Jose but now I see that the drive is as much out of the easement as it is in and to make matters worse the smaller tract who benefits from the easement is for sale.
Quicky rough sketch is attached.
Now I know (or at least suspect) that our other peers conveniently omitted the drive precisely because of this and I gotta ask do you see this stuff in your areas?
Is malfeasance the correct word??ÿ
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Very likely the easement holder now has a prescriptive easement to cover his actual driveway location in addition to the express one described in the deed.?ÿ The driveway does not need to be moved. It stays where it has always been. 'Least ways, that's how it would go down on the left coast, and even more so in OK.?ÿ
As far a negligence on the part of former surveyors that would depend on what they were hired to do.?ÿ But since the driveway doesn't have to be moved, no harm, no foul.?ÿ It's the owner of the servient estate that is harmed here, if anyone is. And all that has happened to him is that he has just learned that he owns more land on the other side of the driveway than he thought he did.?ÿ
Easements are recorded for a reason.
Existing roads are used for a reason.
When the reason becomes two different reasons for all parties to agree upon, the recorded easement is in place to solve the problem.
When one of them wants to spend a lot of money on lawyers and courts to solve the problem, the existing road usually gets located and becomes the easement.
0.02
The cost of moving the fence is probably more than the ground is worth.?ÿ Offer to write a description for the area more or less dedicated to the existing driveway.
The problem is not the fence.
The problem is the drive is not within the easement and 2 other surveys failed to show this although they clearly identified the easement, just not the drive itself.
This does not jump out at me because nearly all surveys except ALTA's in this area only show boundaries. We do not regularly show easements of any kind, let alone driveways and such. We do this only upon client request. The standard project is to find or set boundaries.
Depends on how your State treats easements, and the exact language.?ÿ Here in NY if the easement is not described by metes & bounds, I would say the 25 foot easement is located based on centerline of the the existing travelled way, and there's only the one easement not two of them. If it is described by metes & bounds, I think it would still be same result but it gets really unclear, so I would probably show both and tell them an agreement or court is needed.?ÿ Hard to say if someone screwed up without knowing all the facts.
In addition, your client would be able to move the current travelled way over inside where you depict the 25 feet, but they would have to cover the expense to do so.
I would say that if a surveyor had knowledge of the easement and found the driveway to be outside that easement they need to depict it on their drawing along with a note about unwritten rights.
As to "unwritten rights," so-called, in this case the rights are written down in an easement instrument granting the easement.
There is a conflict between the physical location and the described location but that's it.
If the easement instrument was delivered and the grantee built the driveway without objection from the grantor of the easement then I would be of the opinion that the description most likely covers the driveway despite any inaccuracy in it.?ÿ I would still illustrate the conflict on the Plat and suggest one of the following three remedies: 1) record a more accurate description of the easement or 2) agree to move the driveway into the current described location or 3) they can do nothing which may become a problem in the future.
Often driveways are built to avoid site constraints such as a big rock, prized tree, or just a steep hill, maybe make the bridge over the creek shorter.?ÿ The instrument is delivered and recorded with an expedient description which fails to take into account the reality of the situation.?ÿ This doesn't mean there is prescription going on, however, the physical driveway is the best evidence of the intentions of the parties that created the easement.
We had one where they described a series of tangents ignoring the curves in the serpentine road going up to the top of the mountain.?ÿ Often the PIs (angle points) fell off the road, obviously they were describing the road. I had no problem stating the opinion that the centerline of the 40' easement strip actually follows the physical centerline of the gravel road rather than rigidly following the angle points.
I agree with this, more-so the knowledge-of part. I think the guys I work with show easements if they've been shown on a previous ROS even if it isn't something the client specifically requested.
We don't have enough information yet.?ÿ When was the express easement created? Who wrote the description??ÿ Who built the road, when??ÿ Which came first, the?ÿ easement description, or the construction of the road? ?ÿ etc, etc, ??????.
As to if the previous surveyors should have shown the ambiguity, it depends on the answers to other questions, which we don't have yet. ?ÿ
Interesting sketch brings up more questions.
Without seeing the deed language for the easement I can add no professional opinion, however the driveway in use is within the general area of the 25' easement. I have see more than a few well described easements, where the physical driveway is instead in a better physical location. Without topography that can only be surmised. Clearly the servient parcel intended to grant an easement and I would first argue acquiesence and estoppel.
Questions does the fence follow the driveway or did the driveway follow the fence?
What is "a long time"?
I have a question on the tail at the end of the driveway, what does it serve?
Does the servient parcel have separate access and does it in no way use the existing driveway?
It could be argued that if the servient parcel wants the driveway within the shown easement, they do it at their own expense.
Paul in PA
In Florida it is not uncommon to see unrecorded subdivisions, sometimes with miles of recorded metes and bounds easements. Whenever a parcel is conveyed, a metes and bounds description of the easement network is included in the deed along with the parcel's metes and bounds description. I have never seen a boundary survey of such parcels that included actual road locations.
Adding a fence may or may not relate to the other issues, but it definitely involves a separate question.
If the easement is not exclusive, fencing it off exceeds the rights typically included in easement documents. Probably a bad idea...
As for the other questions, if the owners were at peace before the surveyor needs to present the issue in a manner that maintains that peace...
