What is the name of your state (only U.S. law)? New Mexico. Hello, I'm currently in a dispute with my neighbor over a gate on a road that they have easement to their property through. We had several thefts and trespassers due to the lack of a gate and this caused us to put a locked gate up. We gave the neighbors the combo to the lock and explained our need for it. They responded with a letter from their lawyer threatening to sue us if we didn't remove the lock. We removed the lock but left the gate up as a clear boundary that was being crossed. We have now just received a summons and letter stating our neighbor is now suing us to remove the gate. Our neighbor has two other access roads to their property and it seems they are just vindictive and will not work with us to find a solution. I'm just trying to figure out what the law says about our easement rights and what to expect in court. I am unable to afford an attorney to represent me and unfortunately I must proceed pro se. Any advice you can give would be much appreciated. Thanks!
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Easement dispute
- Thread starter Blee86
- Start date
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Zigner
Senior Member, Non-Attorney
You would need to start by reading the text of the easement.
REad the easement very carefully .
General thought ...unless it's spelled out differently in the easement, you cannot block or unreasonably impede the use of that easement ..matters not if he has 10 other roadways ....a gate may be OK ...but how easy or difficult for dominate tenant to use may be a debate ...and getting out of his truck to open and close a simple latch may sound like a major inconvenience when presented in court . OR if it's a 15' easement a 10' gate is likely NOT ok even if easy to use ....
What does the easement say?
General thought ...unless it's spelled out differently in the easement, you cannot block or unreasonably impede the use of that easement ..matters not if he has 10 other roadways ....a gate may be OK ...but how easy or difficult for dominate tenant to use may be a debate ...and getting out of his truck to open and close a simple latch may sound like a major inconvenience when presented in court . OR if it's a 15' easement a 10' gate is likely NOT ok even if easy to use ....
What does the easement say?
Do more homework ! IT is not a prescriptive easement until such time as a court says it is.....and there may be lots of reasons your neighbor is short of the mark to ripen a claim ...prior use by permission or prior periodic blocking the road may be killers to his point of view ...and might be a big clue as to why he is making a big fuss not to allow any blockage...
ANy HInt of prior use by permission from your prior landowners ?
HOw long has this road been used by other than you or your prior owners ...years?
THere are lots of state specific details...Im suggesting some possible things to check ....you dig..you contact land use lawyer as appropriate .
PS just in case the neighbor is short of 10 year mark, I'd have clear records that roadway was gated shut on x date for a minimum of Y days/hours and or block it again !
ANy HInt of prior use by permission from your prior landowners ?
HOw long has this road been used by other than you or your prior owners ...years?
THere are lots of state specific details...Im suggesting some possible things to check ....you dig..you contact land use lawyer as appropriate .
PS just in case the neighbor is short of 10 year mark, I'd have clear records that roadway was gated shut on x date for a minimum of Y days/hours and or block it again !
What you have neglected to tell us is who owns the servient estate; that is the land subject to the easement.
If you don't own the servient estate, then you have no right to construct anything interfering with free and uninhibited passage over the right-of-way - no more than you would be free to erect any structure on land you do not own.
So if you don't own the land there is no need for further discussion. You and the gate are both out.
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What if you do own the land? Unfortunately it does not necessarily follow that you are entitled to maintain the gate as there seems to be no uniformity among the several states and nothing definitive in New Mexico (to my knowledge.)
In fact the common law rule that the servient owner was allowed to maintain gates at the easement's termini has been undermined in some instances when circumstances and usage at the time the right of way was acquired show that it was to be free and open.
With nothing else to look to in defining the easement I suspect that the court will rely on prior usage, the surrounding,
circumstances and perhaps comparing the parties' separate needs.
I think your strongest argument lies, and there is authority for it, in the change of circumstances. Largely the growing threat to your property's security. Which would appear to add favorable weight especially considering that the neighbor has other means of access.
It DOES NOT matter whether the roadway has been legally recognized as a prescriptive easement. Not for our purposes. What does matter is that two neighboring property owners are treating it as a such.
Requiring the user to substantiate every salient fact, condition or circumstance contained or professed in their posts would be counter productive nitpicking. Some things need to be taken at the word of the user. If a person comes to a law office seeking a divorce, the lawyer sure as hell isn't going to insist that the client produce a marriage license!
If it should come to pass that no easement has been created and the would-be servient owner digs a ditch across the piece, so be it. But it is not our place to speculate.
What seems to matter to you is that you be given recognition for knowing that the duration of time in N. M. for the creating of a prescriptive right to the use of land of another is ten years.
I own the servient property and its been 10 years that the gate has been up and over a year with it locked until my neighbor complained. I've had multiple thefts and trespassers from drunks to horseback riders. The neighbor who complained doesn't live on the property but rents a small shack with no running water or facilities. The various renters of this shack have been causing us consistent issues by their questionable activities. Luckily for over a year this shack has been empty and had no renters. In an attempt to "fix" the road my neighbor carved 3 bar ditches 50 yards down my pristine valley. This has caused irreversible damage to my property and permanently altered the drainage.
There's a long list of grievances but its at the point where my neighbor has filed a law suit against me for a gate that's over ten years. At this point I have no other option but to face this neighbor and her attorney in court and I'm wondering the best way for me to present my case and if possible get this questionable claim to easement taken away by a judge.
Thanks so much for the help!
There's a long list of grievances but its at the point where my neighbor has filed a law suit against me for a gate that's over ten years. At this point I have no other option but to face this neighbor and her attorney in court and I'm wondering the best way for me to present my case and if possible get this questionable claim to easement taken away by a judge.
Thanks so much for the help!
LdiJ
Senior Member
The fact that the gate has been there for 10 years is certainly a point in your favor. You might want to consider countersuing for the damage done to your land...or at least review a potential countersuit with an attorney.
OP....without nitpicking, it remains far from clear in terms of the unposted history of this road IF your neighbor has met the criteria for a prescriptive easement ...this is not high school where a 75 is a pass, you neighbor bears burden to prove his passes ALL the relevant criteria ! THe details vary a lot by state but the core points are similar and in NM are :
Easements By Prescription - An easement by prescription may be established upon a showing of open, uninterrupted, peaceable, notorious, adverse use, under claim of right, that has continued for a period of ten years .
OTher than the gate in place for 10 years ..how long has who been doing what with or without permission?
IF the gate has been in place 10 years but was locked over a year ago such open passage via the gated route was interupted prior to the 10 year mark..that might be a critical point to bring to .your attorney's attention.
ANd passage by permission does not even start the time clock.
I have a cabin down an old railroad way ...and an a stones throw from about 4 easement issuee ....I can sense there may be more to your story....but seriously a bit of local paid advice from a local land use lawyer is needed about now on your side .
Easements By Prescription - An easement by prescription may be established upon a showing of open, uninterrupted, peaceable, notorious, adverse use, under claim of right, that has continued for a period of ten years .
OTher than the gate in place for 10 years ..how long has who been doing what with or without permission?
IF the gate has been in place 10 years but was locked over a year ago such open passage via the gated route was interupted prior to the 10 year mark..that might be a critical point to bring to .your attorney's attention.
ANd passage by permission does not even start the time clock.
I have a cabin down an old railroad way ...and an a stones throw from about 4 easement issuee ....I can sense there may be more to your story....but seriously a bit of local paid advice from a local land use lawyer is needed about now on your side .
The neighbors renters have used the road off and on for as long as we've owned the property but in the past 2 years they haven't used the road at all. They never got expressed permission from us but in the interest of keeping a good relationship with our neighbors we never disputed their use of the road until thefts and their abuse of our road started several years back. There was never any agreement between my neighbor and the previous owner of our property in regards to use of this road.