Posted by John T Country Lawyer on November 01, 2007 at 07:06:37 from (66.244.83.147):
In Reply to: easements posted by Lee in Iowa on October 31, 2007 at 21:27:32:
Lee, Your question is a fun (for me an attorney at least) and interesting topic and you usually get alllllllll sorts of lay opinions on these legal questions, many of which are quite accurate, others maybe not so. I like Property Law because its the oldest law there is, passed down from Englands common law where ownership and conveyance of property rights was what started all this and only later the upstarts arrived on the scene with contract n tort and other johnny come lately laws lol.
While the laws vary state to state, I will still try n provide you with some attorney insight and a very very brief very very limited professional legal opinion:
Absent conveyance of an ingress/egress easement by Deed (which you dont have) there are a couple other ways to legally aquire one. An easement is the legal use of anothers land i.e your legal right to cross over his land to get to yours or for other potential uses.
FIRST is an "Easement of Prescription" which is sort like the related legal Doctrine of Adverse Possession. In such a situation, if you or your immediate prior title holders (called tacking) openly crossed over anothers (or his prior counterpart) land to get to yours and a certain statutory time period passed in which the landowner allowed such to happen, YOU CAN LEGALLY ACQUIRE AN EASEMENT BY PRESCRIPTION whereby the other landowner MUST AS A MATTER OF LAW ALLOW YOU TO CONTINUE YOUR INGRESS/EGRESS and he cant stop it yayyyyyyyyyy for you. NOTE: There still may be other factors, such as if you can just as easily get to the same field over your own land without crossing his, that cuts against you....
SECOND is whats called an Easement of Necessity. Thats when youre landlocked and have no other viable access to your land other then passing through the land of another.
CAVEATS While the Easement of Necessity is potentially judicially attainable regardless of any past use or time restraints, an Easement of Prescription requires ceetain statutory time periods must have passed (like 10 to 20 yrs) in order for you to have a viable cause of action. However, if you bought land from a previous owner who used that easement, you get the time benefit of his prior use, i.e you get to tack on his time with yours in order to pass the statutory time n use requirement.
BOTTOM LINE FREE LEGAL ADVICE Consult a local real estate attorney familair with your states laws because it sounds like you have a good case and dont wanan do anything to jeopardize your rights in the meantime. There are all sorts of defenses, evidentiary issues and other end runs around to be wary of, but if worse comes to worse and you have no other access and you cant qualify for an "Easement of Prescription" theres still remember an Easement of Necessity possibility.
Of course, its IMPOSSIBLE to put down in a couple paragraphs here the whole legal topic of easements that can fill entire law libraries and as I said laws vary state to state, but in my professional legal opinion (while still subject to the facts n your states laws) you may have a good case BUT CONSULT LOCAL COUNSEL ASAP
Best Wishes
John T Nordhoff, BSEE,JD, Retired Electrical Engineer now an Attorney at Law in Indiana
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