Re: O/T Property rights

Posted by John T (Country Lawyer) on January 05, 2007 at 08:21:16 from (66.244.90.5):

In Reply to: O/T Property rights posted by SamMI on January 05, 2007 at 05:16:48:

Wow, We've had a rash of these similar type questions lately and I hear the same often as I practice out here in the country. Its IMPOSSIBLE to explain what it takes years and large textbooks to understand and different states have different rules but I will toss out a few basics which may help you understand a very complex legal issue.

1) Surveys or Surveyors DO NOT set boundaries as a strict matter of law. Surveyors are qualified to render "expert opinion" and can set where they believe boundaries to be based on deeds n legal descriptionds which are as accurate as the critical starting point and their abilities.

2) Boundaries are determined by a huge and well settled body of law whereby the Courts NOT adjoining landowners or Surveyors may say. In Indiana there is a legal process to have a "legal survey" conducted whereby a surveyors stakes might later be judicially determined to constitute a boundary and that becomes the legal and final boundary line.

3) As far as this road you mentioned, and REGARDLESS where the exact boundary line is, once a certain statutory period has passed its quite possible the road user has already acquired whats called an "easement by prescription" which means even if it is on your land you can no longer prevent him from that continued use until such time he may abandon it. NOWWWWWW theres a lot of law and requirements that go into this which cant be covered in a paragraph here but in a nutshell he must have used it as a roadway for a certain time (like 10 to 20 yrs depends on statute) in a manner thats HOSTILE OPEN CONTINUOUS ADVERSE AND NOTORIOUS TO THE PERSON WHO OWNS THE LAND.

4) NOW heres the kicker and I think JD covered it quite well, IFFFFFFF the use is by your express permission it can never be considered to be ADVERSE AND HOSTILE against your interests so a legal action for an easement by prescription may fail. Thats why in order to avoid the neighbor acquiring a legal easement by prescription you could grant him permission to do so which will help (NOT perfect or foolproof mind you) your case and I would recommend good amissible evidence of such in the form of certified letters return recepit over the years. The certified mail return receipt letetrs avoids the problems of proof and he said she said arguments.

5) HOWEVERRRRRRRR the time periods for the adverse use can be "tacked" meaning if the prior landowner (the guy you bought the land from) had let this use go on in a hostile open exclusive adverse and notorous manner for a certain number of years (his and your time add/tack together remember) an easement by prescription may have alreay taken place legally and nuttin you do now at a time later can cure it !!!!!!!!!!!!

BOTTOM LINE it may well be that an easement by prescription (10 to 20 yrs of use couting the guy you bought land from) has alreay ripened and its toooooo late for you to do nuttin by now. STILLLLLLLL it can help and I would still take preventitive steps to help your case in the future 10 or 20 yrs from now cuz if the roadway use stops and/or the easement is abandoned the adverse user would have to start all over again to ever acquire another easement by prescription
IE JUST DO IT REGARDLESS like what your local attorney advises as far as permission or a demand to cease and decist the use etc WHICH WOULD REQUIRE THE ADVERSE USER TO BEAR THE TIME N EXPENSE OF COURT TO ESTABLISH THE EASEMENT BY PRESCRIPTION TO BE JUDICIALLY DETERMINED. If he simply gives up and abandons the easement YOU WIN

FREE ADVISE get the advice n opinion from a local attorney who knows the law in your state n county and even if its too late he may still advise you of notice and subsequent things like certified mail etc which could help your case in the future. The other thing he may recommend is an official demand to cease the use which forces the users hand cuz at that time he must face the choice of going to court to establish n win his easement or else stop and abandon it !!!!!!!!!!!!!!!!

Sounds to me like already tooooooo late if the road use has taken place so long and no one granted any official or permission for the use whereby such was ADVERSE AND HOSTILE yet nobody did nuttin.

This is similar to "adverse possession" law but not quite the same. I think its a good body of law which I didnt necessarily agree with (as a farmer) until I studied and understood the big picture.

Best wishes n God Bless yall

John T BSEE, JD Attorney at Law in Indiana (retired electrical engineer and Attorney ONLY AFTER a real life first as an engineer n farmer lol)

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