Re: How do water rights work?

Posted by jdemaris on June 28, 2007 at 12:50:52 from (69.67.231.67):

In Reply to: Re: How do water rights work? posted by georgeky on June 28, 2007 at 09:36:29:

I've been through similar situations. There are many issues involved and some vary, state by state. Usually, matters involving adverse taking of land or its use are controlled by State statute law. Here in New York, it takes seven years of adverse use - to create "adverse use" or an "easement by prescription."

Someone cannot just use your land and then claim adverse use - especically if you've given permission. The issue of adverse use or possession is when someone does it against your wishes, and you do nothing about it. Also, it can occur if they do any maintainance on the path or road. I've pasted two short articles at the end of this post.
The best way to find out how things tend to work in your own area is to check recent case-law. With the Internet, it's easy - just do a phrase search for "easement by prescription."

Many states do not allow anyone to section off small parcels of land off a bigger parcel and not grant right-of-ways for access to public highways. For parcels where it's already been done, there are sometimes legal remedies, where a court and judge will grant access - and determine where it will be. But, some parcels are simply sold as "landlocked" and that's the end of it. I mention this because it's possible your mother-in-law may have some liability.

PRESCRIPTIVE EASEMENTS - recent case-law:
An "easement" is a right of use over property of another. A characteristic of an easement is that there exists a burdened property and a benefited property. An easement is distinguishable from a "license" which merely confirms a personal privilege for a party to do some act upon ones land. The right of private way over another's land may arise from (I) an express grant, (ii) from prescription by seven years uninterrupted use through improved lands (iii) by twenty years of use through wild lands, or (iv) by implication of law when the right is necessary to the enjoyment of lands granted by the same owner or by a compulsory purchase and sale through the Superior Court in the manner prescribed by law. This article will hereinafter address how a right of private way over the land of another may be acquired by prescription.

It is common for convenience stores and commercial properties to share common driveways, access points and rights of ingress and egress. It is common for such common driveways, access and ingress to be pursuant to a "hand shake" understanding. A review of title records and grant deeds discloses no formal express grant of an easement of ingress and egress to either party. In such cases, issues, problems and /or litigation usually arises when one party desires to alter the property lay out, develop or expand upon the property, attempt to relocate ingress or egress points or cut off the rights of the adjoining property owner to access across the property.

In the recent Georgia Supreme Court case of Keng v. Franklin, 480 S.E.2d 25 (1997) the Supreme Court confirmed and reiterated how a prescriptive easement may be established. In particular, the Supreme Court stated that prescriptive rights are to be strictly construed. That in order for prescription to occur, the prescriber must give some notice, actual or constructive, to the land owner, that he or she intends to prescribe against the owner. That whenever a private way has been in constant and uninterrupted use for seven or more years and no legal steps have been taken to abolish it, it shall not be lawful for anyone to interfere with that private way. In addition, a successful prescribe must show that the private way did not exceed twenty (20) feet in width, the use continued along the same route without shifting from one path to another, and that the prescriber kept the way open and in repair during the period of prescription. That when the use of a private way originates by permission of the owner, prescription does not begin to run until; the user notifies the owner, by repairs or otherwise, that he has changed his position from that of a mere licensee to that of a prescriber.

Pursuant to O.C.G.A. § 44-9-54, "whenever a private way has been in constant uninterrupted use for seven or more years and no legal steps have been taken to abolish it, it shall not be lawful for anyone to interfere with that private way." In the Keng case, the dispositive issue was whether the actions of the prescriber and their predecessor in title provided notice to the burdened landowner with notice of their intent to possess the driveway. In the Keng case, because there existed evidence of (I) use of the driveway continuously for more than seven years, (ii) refusal to allow its removal and repairs, (iii) it was found that an easement by prescription had arisen.

When analyzing the rights and obligations of parties in ingress/egress situations, it is important to distinguish prescriptive easements from what many recognize as adverse possession. In the case of private ways, the use may originate in permission, and may ripen by prescription. Adverse possession cannot arise out of permissive use. For adverse possession to occur there must be proof of non-permissive use which is actual, open, notorious, exclusive and adverse for the required statutory period, depending on the nature of the rights to be acquired by adverse possession and whether such adverse possession is under "color of title". The prescription or adverse possession will not run against a state or its political subdivisions. As discussed in the Keng case, in the prescription easement case, it is required that the use be continued along the same route without shifting from one path to another, and that the use may originate by permission but the seven year period does not begin to run until actual or constructive notice is provided to the owner by repairs or otherwise, that the use is claimed adversely against the owner.

ADVERSE POSSESSION AND YOUR PROPERTY
As a licensed Realtor I continue to marvel at how little understanding most property owners have of how to protect their property rights from what may seem to be an insignificant situation. For example, the neighbors up north , have been walking across your land to get to your semi-private lake, to swim, picnic and fish. Things go well for years, and you never say it’s ok or not ok, but then one day, you decide that you don’t want them to do this anymore.

You let them know that they can’t cross your land anymore nor use your shoreline. You even erect a fence, to stop their crossing your land. Your neighbors tell you to take down the fence and that they want to continue to use the lake. You refuse and your neighbors take you to court. When the judge rules that you must take down the fence and you must allow your meighbors to not only cross your land, but they may also use your lake frontage as they did for years.

Your neighbors have just won rights to you property, due to adverse possession. Adverse possession and prescriptive easements can occur when someone uses your property in an open and hostile manner. If this continues for a number of years, you can loose your right to stop them and even anyone that may buy your neighbors’ property and want to use yours in the same way.

To protect yourself, periodically walk your property and keep an eye out for people having entered or used your property. Ask neighbors if they have noticed anyone using your property. If you find that someone is using your property either take necessary steps to stop their use or give them permission to use your property. Giving permission constitutes “giving license” to use your property. You may take back your permissiom should so choose to do. Giving permission stops the adverse possession or adverse easement.

A right to use property, acquired by a long tradition of open and obvious use. For example, if hikers have been using a trail through your backyard for ten years and you've never complained, they probably have an easement by prescription through your yard to the trail.

Replies:

• Re: How do water rights work? georgeky 17:00:29 06/28/07 (2)
  • Re: How do water rights work? Matt from CT 18:03:41 06/28/07 (1)
    • Re: How do water rights work? georgeky 21:06:08 06/28/07 (0)

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