Easement Question

TIB · Post by **TIB** » Sat Oct 04, 2014 7:20 pm

Smith owns land adjacent to public road. Jones lives to rear of Smith. Records indicate 28' strip "reserved for road" across Smith's land to benefit Jones. In other words, a driveway easement. There is a nice paved asphalt strip (a Driveway) about 20' wide within esmt. Smith plants shrubs and landscaping in the unused 8' of esmt. Smith does not hinder Jones use of 20' paved DW..

Jones goes off-roading in big truck along the non paved 8' strip, but within esmt limits, and drives back and forth over the nice shrubs and roses planted by Smith as landscaping.

Smith claims "this is my land, drive on the paved driveway and stop smashing my pretty roses, or else!

Jones claims "it is a Road esmt, so I have the right to use any part of it as a road, including the unpaved 8'".

There are no conditions etc, in recorded doc/map. Just "reserved for road.

Smith or Jones?

Mike Hartley · Post by **Mike Hartley** » Sat Oct 04, 2014 10:34 pm

Smith

steffan · Post by **steffan** » Sun Oct 05, 2014 6:10 am

Who owns the land or rights thereon might be considered by some to be more a determination to be made by those with authority to offer legal opinions on such matters as it may not really be a question of surveying.

But, what is a question of surveying and something I myself would offer to the client is the guidance as to where the easement truly lies. This answer is not necessarily the limits of the written grant of easement as has been demonstrated by the recent and interesting case of Rye v Tahoe...:

dmi · Post by **dmi** » Sun Oct 05, 2014 9:52 am

â€œThe surveyor, on the other hand, must inquire into all the facts, giving due prominence to the acts of parties concerned and always keeping in mind ... that courts and juries may be required to follow after the surveyor over the same ground, and that it is exceedingly desirable that he govern his action by the same lights and the same rules that will govern theirs.â€

Justice Cooley

David Kendall · Post by **David Kendall** » Mon Oct 06, 2014 10:23 am

I have a similar question relating to who is responsible for maintenance of said shrubs, assuming Smith is not doing it to Jones' satisfaction. And what if they were trees suitable for timber and were obstructing part of the driveway. If Jones goes in and removes them and burns them or mills them into 2x4s is he stealing from Smith? Does Jones require permission from Smith to cut the trees down and leave them lying on Smith's lot to clean up? This is apparently not a surveying matter but any referral to legal precedent would be appreciated.

dedkad · Post by **dedkad** » Tue Oct 07, 2014 1:07 pm

In the Rye v Tahoe Truckee case that Steffan linked, there are a couple of other court decisions cited beginning on page 9 that could be of interest in this case. One had to do with the permisible use of the easement being determined in the first instance. If the road was only paved to 20' and especially if that width is shown on some kind of building permit, then one could argue that the 20' was the intended use. And on page 11 it says that if the entire easement is being reserved for driveway use, then that would be considered an exclusive easement, and if the easement documents don't say it is exclusive, then the ability to use that entire easement as a road could be in question.

Unless it is specified in the easement, no other uses such as logging, would be allowed.