It seems that every job lately has some issue involving prescriptive easements and every one seems to have it??s own twist. The courts gave a certain road that is prescriptive in origin a width of thirty feet. When the court says ??you have thirty feet? can that entity (public or private) acquire more prescriptive rights beyond that stated width at a later time??ÿ
It seems that every job lately has some issue involving prescriptive easements and every one seems to have it??s own twist. The courts gave a certain road that is prescriptive in origin a width of thirty feet. When the court says ??you have thirty feet? can that entity (public or private) acquire more prescriptive rights beyond that stated width at a later time??ÿ
Good question.?ÿ Any entity can acquire more rights as long as they have a "darned good case" (that's a legal term that is NOT in Black's Law Dictionary).?ÿ There are?ÿplenty of cases where the dominant estate "outgrows" an easement?ÿthat was originally granted by prescription and more easement was needed at?ÿa later date.?ÿ I see this a lot in the utility business.?ÿ
But I would like to explain that in my experience public or private entities are generally held to different standards.?ÿ In the case of a prescriptive easement for a public utility or a public road the courts seem to view "the needs of the many outweigh the needs of the few".?ÿ Private cases aren't so lucky.?ÿ I remember a property owner had once acquired prescriptive rights for a 20' access drive.?ÿ A few years later he realized his motorhome couldn't make it up the narrow winding drive without removing a few trees.?ÿ Since the easement was originally contested by the servient estate the owner was none too happy when the owner of the prescriptive easement had removed trees "outside" of the granted easement; litigation ensued.
Long story short the guy with the motorhome had argued the 20' was not wide enough for "reasonable modern use"...he lost.?ÿ The trees cost him a lot more than the motorhome was worth.
Agree with Paden, in NY case law at upper level seems to suggest more needs to be purchased, but lower courts may give more to municipalities without a payment anyway. How much justice can you afford?
Basically an easement by?ÿprescription is "adverse possession" of rights?ÿbeing some magnitude lesser than title.?ÿ In the case of the OP's mention of a "certain road with a width of 30 feet" I would have to ask has the road already exceeded its original court decided width??ÿ If so, for how long?
If the roadway has exceeded the 30' for some length of time without being challenged I would be tempted to bet there's a good case there.?ÿ
Trying to stretch an existing prescriptive easement to "fit" some future improvements probably wouldn't fly.?ÿ That would be the time for the easement owner to get out the checkbook and make it right with the servient estate.
My rural co-op client had a distribution pole line that crossed private property due to a creek, bridge and winding road.?ÿ The pole line was placed in 1946.?ÿ In the '70s?ÿthe property owner?ÿsued to get the co-op to move their line "off his private property"; he lost.?ÿ The court decided the co-op had prescriptive rights and (for some reason no one could figure out) stated the width of the easement as ten feet.
As the area populated the demand for power grew and the line needed upgrading.?ÿ It was determined the "10 feet" wasn't nearly enough width for the co-op to safely and properly upgrade the line.?ÿ They approached the owner to purchase additional easement and were turned down.?ÿ It wound up in court and the co-op prevailed and wound up with a 30' wide easement (documents prepared?ÿby yours truly) although the court awarded "damages" to the property owner.?ÿ This case is more indicative of what usually happens when a prescriptive easement is outgrown by its occupant.
As the thread illustrates, there are many nuances to the question. In general a prescriptive easement is limited to the area of actual use. The exception is where a statutory width is called for. An expansion of the original easement should only occur under a separate fact pattern or action.
Basically an easement by?ÿprescription is "adverse possession" of rights?ÿbeing some magnitude lesser than title.?ÿ In the case of the OP's mention of a "certain road with a width of 30 feet" I would have to ask has the road already exceeded its original court decided width??ÿ If so, for how long?
If the roadway has exceeded the 30' for some length of time without being challenged I would be tempted to bet there's a good case there.?ÿ
Trying to stretch an existing prescriptive easement to "fit" some future improvements probably wouldn't fly.?ÿ That would be the time for the easement owner to get out the checkbook and make it right with the servient estate.
My rural co-op client had a distribution pole line that crossed private property due to a creek, bridge and winding road.?ÿ The pole line was placed in 1946.?ÿ In the '70s?ÿthe property owner?ÿsued to get the co-op to move their line "off his private property"; he lost.?ÿ The court decided the co-op had prescriptive rights and (for some reason no one could figure out) stated the width of the easement as ten feet.
As the area populated the demand for power grew and the line needed upgrading.?ÿ It was determined the "10 feet" wasn't nearly enough width for the co-op to safely and properly upgrade the line.?ÿ They approached the owner to purchase additional easement and were turned down.?ÿ It wound up in court and the co-op prevailed and wound up with a 30' wide easement (documents prepared?ÿby yours truly) although the court awarded "damages" to the property owner.?ÿ This case is more indicative of what usually happens when a prescriptive easement is outgrown by its occupant.
Had a "pole easement" been acquired for a $1 , never paid, it almost never includes an easement width but it is understand access for maintenance and eventual replacement is included. When the coop needed a wider easement that was a condemnation. Just because a document is never filed at the courthouse does not mean the utility may not have a agreement in their records, I have managed to get a copy of a few over the years.
Paul in PA
Agree with Paden, in NY case law at upper level seems to suggest more needs to be purchased, but lower courts may give more to municipalities without a payment anyway. How much justice can you afford?
How much justice can you afford??ÿ That is a great quote for surveyors to remember, and the reason many crappy surveys become the record and evidence?ÿ in low value land areas.?ÿ Problem is some day they become valuable, Dykes vs. Arnold comes to mind. Thanks Duane.?ÿ Jp
