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outune · Jun 4, 2013, 09:01 AM

Hello-- For nearly 18 years I have owned a parcel of land(with a house) that is accessed by a 1/4 mile long, 15 foot wide right-of-way/road across my neighbor's pasture land. When I purchased it, I placed a gate at my property line and the neighbor placed a gate at the front edge of his pasture to keep cattle in. Recently he decided to divide his pasture area and ran another fence line through the middle, with another gate across the right of way. The third gate is in a rocky location and it is very difficult to open and close (especially at night). Is he allowed to place additional gates across the right-of-way without my permission? It makes access to my property difficult and I'm concerned about additional gates in the event of an emergency. I suggested a cattle guard, but he says I would have to put it in at my expense. His decision to change his pasture lay-out shouldn't cost me money, should it?
Thanks

farvaknowsbest · Jun 4, 2013, 09:22 AM

Is the road part of a driveway or personal property? Or is it owned by the city/county?

ScottGem · Jun 4, 2013, 09:24 AM

You need to check the language in the right of way agreement. This should be part of your deed and recorded with the county. Anything that interferes with your right of way as stated in the agreement would require your permission.

outune · Jun 4, 2013, 10:14 AM

The road is not a county/city road. It is a right-of-way across private property. The other land owner and I share the first part of the driveway, then my ROW extends beyond their house, through a gate and across their pasture area (follows a tree-lined road) for 1/4 mile to my property line where I installed a gate when I bought it 18 years ago.
Thanks

ScottGem · Jun 4, 2013, 01:49 PM

Again, what does the recorded right of way say?

outune · Jun 4, 2013, 05:38 PM

Looked at deed.. Description of ROW goes back to early 1900's... "by new barn, to east side of garden", etc.. The ROW is long established and isn't an issue... but the deed doesn't spell out any specifics other than access-- I thought that any changes to the ROW (eg a new fence or gate) that were added after I purchased the property would have to approved by me--- otherwise, the guy could add 6 new gates and I'd have no recourse but to have to open and close them all every time I go to the house-- Besides the safety concerns mentioned before, I feel it negatively affects the value of my family's property (tax assessment over $500k). Having to go through 3 gates to get to the property is a negative selling factor in my opinion.
Thanks for your thoughts on this. I'm not sure what I can and can't do.

ScottGem · Jun 4, 2013, 06:47 PM

Originally Posted by outune

I thought that any changes to the ROW (eg a new fence or gate) that were added after I purchased the property would have to approved by me--- .

I think so too. So what you need to do is tell him, in writing, that his new gate interferes with your right of way and needs to be removed. Otherwise you will be forced to further pursue legal action.

It would be better is this letter came from your attorney. But, if he refuses to remove the gates, then you will need to hire an attorney and go to court to have the gates removed.

Without specifics listed in the ROW its not a slam dunk that you will win in court. I would consult with a local real estate attorney about your chances of prevailing in court.

joypulv · Jun 4, 2013, 07:01 PM

A right of way by definition has to be unencumbered. That means nothing permanent/affixed, and nothing movable but left as an obstacle on the right of way either. That would include gates, even if they can be opened.
I can't envision the land, but it would be nice if you could sit down with the deed, the legal definition of a right of way (which you could get for your state from a real estate broker or the town), and the neighbor and sort this out.

AK lawyer · Jun 4, 2013, 07:22 PM

Originally Posted by joypulv

A right of way by definition has to be unencumbered. That means nothing permanent/affixed, and nothing movable but left as an obstacle on the right of way either. That would include gates, even if they can be opened.
I can't envision the land, but it would be nice if you could sit down with the deed, the legal definition of a right of way (which you could get for your state from a real estate broker or the town), and the neighbor and sort this out.

In most places this would be incorrect.

A right-of-way (e.g.: an easement) can and often is accessed through a gate such as the ones the OP describes. The problem is that, as OP also suggests, an excessive number of gates can unduly burnen the ROW. In other words, a court would have to decide considering all of the circumstances, as well as the case law in the particular jurisdiction.

A realtor or the town are not reliable sources of a "legal difinition of a right of way". Consult an attorney in your jurisdiction. A definition probably won't be found in statute either.

joypulv · Jun 5, 2013, 03:03 AM

My state's real estate course book quotes state statute for prescriptive easements, so I was wrong there, but it also references a state court case in which it was decided that 'a user may not expand his or her use to exceed the original use.'

I meant to say extra gates past the first one, for the convenience of one party and not the other.

I'm always in favor of NEIGHBORS working things out personally before hiring lawyers.

AK lawyer · Jun 5, 2013, 03:41 AM

Originally Posted by joypulv

..., but it also references a state court case in which it was decided that 'a user may not expand his or her use to exceed the original use.' ...

That's "black letter law" (i.e. part of the Common Law). But it pertains to prescriptive easements, not express easements such as OP's.

Say, for example, you give me a written easement across your land, but I don't use it for 6 years, other than perhaps with a foot-path. Then I decide to build a driveway. For me to build the driveway would be an expansion of, and would exceed, my original use; but it is nevertheless OK.

joypulv · Jun 5, 2013, 04:00 AM

OK...

This easement is older than either current property owner - is that relevant to any question of altering the use?

JudyKayTee · Jun 5, 2013, 01:41 PM

"Is the road part of a driveway or personal property? Or is it owned by the city/county?"

If it's a right of way and requires an easement I'm not reading that it could be other than privately owned.

What am I missing?

AK lawyer · Jun 6, 2013, 05:57 PM

Originally Posted by joypulv

OK...
This easement is older than either current property owner - is that relevant to any question of altering the use?

Not relevant in any way that I can see.

Except that, if the previous poster's contention that one cannot obstruct an easement with an unlocked gate were correct, the gate could be viewed as a prescriptive "easement" across your easement (if you will). In that sense, the age of the gate use would establish the owner's prescriptive right to have the fence.

Originally Posted by JudyKayTee

"Is the road part of a driveway or personal property? Or is it owned by the city/county?"

If it's a right of way and requires an easement I'm not reading that it could be other than privately owned.

What am I missing?

I'm not sure what you're missing. OP is quite clear that it's a privately owned easement. The public (or a government in behalf of the public) can own an easement, but that's not the case here.