Road easement problems (long)

Before he sold it, he put an easment on it that was 33 ft. wide with restrictions that I couldn't put any fence, trees or structures within 100 ft. of the centerline of the easement. The easement was so he could get to his land which was next to it and originally part of the piece I bought. I later sold 6 acres to my son to build his house on.

The natural drainage across his yard went across this easment road. There was no culvert there to take the runoff so it always went acrose the road. A year ago this fall, the guy graded the road so it had a slite crown to it and added 5" of gravel which caused the water to sit on my son's yard. We decided rather than argue with him about building up the road, we would install a culvert to take the water. We didn't change any drainage patterns, just found the lowest spot in his yard and put the culvert in there.

Shortly after that we got a letter from his lawyer that we had violated the terms of the easment that says you cannot make improvements to the easment area without written approval from both parties. Then about a week later, he brings out more gravel and put it in that same area and now the road is a good foot higher than my son's yard. I had talked to his lawyer and explained what he did and that I didn't feel we had done anything wrong under the circumstances. Now today, the sheriff shows up with papers that he is taking us to small claims court and asking for $3499.44 for "balance due for culvert installed in easement which is not allowed."

I have had other dealings with the guy on this road and believe me, he is a nut case, but I have to deal with him. I am wondering how he can ask for money for "violating" the terms of an easment. We caused him no monetary damage. The road was put back to it's original condition and I actually thought it would be better to have it run under the road than over it.

Also, he put a property fence on the line that divides our properties. He brought it right up to the road and put a gate acrose so no one can get on his land. I told his lawyer he had to remove it as it was in violation of the easment that says no fences within 100 ft of the center of the easment. I might be on thin ice on that one being it is on the line but after reading the original plat papers, I found he ran the easement for 1300 ft. My property runs for 1295 ft. so it actually carries over 5 ft. onto his property. It wouldn't be a big deal but after all the run ins with him I am going for him to have to remove it.

He made the Xmas season real enjoyable for us all. I do have an appointment with the lawyer to see where I stand for sure or at least in his opinion anyway.

I am a land surveyor licensed to practice in the states of Indiana, Ohio and Louisiana. Coincidently, I live only about 1 hour from John T and belong to the same tractor club. My first suggestion, as may others have said, is to consult with a lawyer. My only addition would be to make sure you get a lawyer versed in property law.

The following are key elements to keep in mind:
1) The property upon which the 33-foot easement exists is part of the 40 acres you purchased and paid for. The seller has only retained an easement. The exact language used in the easement is critical. An easement is only valid for the purpose so stated. If it states the easement is for access and nothing else, then his use of the easement is limited in scope. You state that the culvert was installed in the "lowest spot in his yard". If the culvert was installed under the road which exists within the 33-foot easement, then it is installed in "your yard" not his. Unless additional language is present, an access easement only gives him the right to cross your property, not to occupy it and maintain it as his own. 2)Is there a statement in the purchase agreement or easement as to who is responsible to maintain the easement or who shall pay the cost of maintenance? In your post, you say that no improvements can be made to the easement area without written approval by both parties. If that statement is present, then he violated the conditions of the easement first by adding rock to the road without obtaining your written approval. Furthermore, he caused damage to your property by creating a barrier to the natural flow of drainage whereby it now ponds on your property which brings me to the next item.

3) In most of the states in which I have conducted surveys, some type of law exists with the intent that you cannot interfere with the natural drainage patterns if such interference will adversely impact neighboring properties. Therefore, before altering the elevation of the road, your neighbor would have been responsible for installing the culvert.

4) The restrictions are most likely valid. However, the wording is critical. In Indiana, no fences, trees or structures is generaly interpreted as no above ground features which would exist at a higher elevation than the natural ground level. No improvements would be used to describe not being able to do anything with the land such as no utilities, culverts, buildings, fences or anything else.

Under no circumstances would I quit claim him the easement. If so, you relinquish any rights to it, including the use of it, unless you retain an easement for yourself. If you use a different access to you and your son's property, then offer to sell the easement back to him. If you currently use the same access, you could construct a new access for you and your son and sell the easement to your neighbor at such a price to cover the land cost and the cost of your new access.

In any case, the exact language is critical as well as retaining an attorney that understands property law.

Good luck.

HOWEVER your last post is specific enough and I can enlighten you on a couple things..... The grant of an easement IS NOT the same as the grant of your real estate to someone else ..... ....BUT its the grant of a certain and limited right of use to another. If you grant him an easement you are NOT granting him your real estate. In addition, you can make a grant still subject to certain conditions and limitations in your favor. What Im trying to tell you is dont be afraid of granting an easement if drafted by an attorney you trust because such may settle the case???? IM NOT saying you should give him one, just trying to explain what it is mind you in a paragraph that really requires 50 pages to describe accurately lol

If he already has an easement he doesnt need one granted from you now!!!!! !!! so your lawyer needs to know what was originally granted BE SURE N HAVE THAT INFO READY FOR HIM such as; Was there ever an easement granted or was one included on the past deeds??? Take him all the past deeds and any deeded easements!!!!! !!! Absent a few very unique and limited situations, I see no reason for you to grant him an easement free of charge, perhaps if youre willing and it doesnt harm your interests you might come up with a price???

These type of legal issues are farrrrr r to complex and much too fact and case by case sensitive to even think of being able to get any help here in a paragraph on a subject that can fill entire law libraries even from a professional so Im glad to see you have local counsel.

Best wishes now n God Bless n Merry Christmas

John T Attorney at Law in Indiana

There's no more use for good manners and other reasonable methods, it's a lawyer fight now. Hire one, and be prepared to fight to win.

What MOST people dont realise is that "altering the natural flow and drainage" without a proper permit from the US ARMY CORPS OF ENGINEERS is a FELONY.....YUP the A.C.E. has a topo map of that area that shows the natural drainage, if you change it without a permit they can put you in jail. We just had this where a county engineer approved a pond to be built about 5 years ago, changed the drainage, was washing out the yard of the next guy down hill. He never got A.C.E. approval for it, they made the county fill in the pond and repair all the damage, and pay the down hill guy for 3 trees washed out. The county engineer and code enforcement officer both got big fines and fired from the county.

I suggest you go talk to your local A.C.E. guys..

Creek accross the road from me, DEC (conservation dept) and county changed the route of the creek, even the STATE backed down from the Army Core of Engineers..

You said you will talk to 'the' lawyer, you need to talk to _your_ lawyer, not his. His lawyer is representing him, & talking to his lawyer is only a waste of time, & gives him more info than he should have. His lawyer will _never_ help you, & should be turned in if he would!

You will need to play the game, and have your lawyer send out letters about not building up the road, etc.

You are not playing the game, you were being practical with the culvert. Any judge will find you in error. You need to stop him from changing the road, etc. By putting in the culvert, you probably accepted the road, so too late now - that is how the game will be played.

Don't talk to his lawyer, don't build anything.

As you say, need to send letters & sherriff about no fence, no road building, damage for water in yard, etc.

It's a game, nut cases seem to have a lot of time to plot games. You need to join the game, not come up with practical solutions.

--->Paul

The actual amount of the easment is 33 ft. The restriction or whatever you want to call them are that nobody can put a fence or trees or structure within 100 ft. of the center of the easment or in effect 116.5 ft. from the property line. When this was all going through the lawyers the first time, I was told he was going to put one on before closing. I got a copy of the purchase agreement from his lawyer with the terms of the easment with it. He actually had filed the easment 7 days before I had a copy of it so there wasn't anything I could do about it except walk away and I didn't want to do that.

It is a game, and he is sitting around the house planning the next move. Lawyers will love him, judges will accomodate the fine details of his games.

Wish you luck with it all.

My county has frowned upon easements for the past few decades, because they are such a problem.

--->Paul

Did he get written approval from you for the added gravel?

And why would he need a 200' wide easement?

Generally speaking, one is not permitted by law to alter the natural flow and drainage of surface water to the detriment of his neighbors, but thats one of those things even for which a lay person has a natural understanding. As far as the law of easements, if the useage has been reduced to writing (what do the Deeds of conveyance or contracts state???), that's the place the law will start and fill in the gaps as and where required. Much of the outcome is going to be determined by the common law in your jurisdiction and the most likely answers will have to be found from a study of case law.

As far as rendering any professional legal opinion regarding your issue, it would require research in your locality since a good bit of such is most likely common law, NOT statutory in nature. Absent any legal research on my part your position and arguments certainly sound reasonable to me as an attorney and its your attorneys job to research the issue, apply the law to the facts in your situation, and then present his case to the Court so they decide in your favor, which is what we are trained to do from day one in law school. In the meantime the opinions of you or your adversary or the attorneys or other persons dont count for much, nothing actually lol

Have your facts and any documentation or other evidence in good chronological order when you visit your attorney is my best advice for now because theres not much you can gain from lay or even professional "speculation" at this point.

Best wishes n God Bless Merry Christmas to all

John T Attorney in Indiana

Nowadays, I would get the best lawyer I know, and go to claims court. During this, you can bring up a counterclaim which A) maintains your easement rights, and B) you reserve the right to place that CULVERT as a response to his ADVERSE actions on the easement.

I would assume that he can modify that easement in a way, but he can't do anything that impairs your ability to use that easement.