Encroachment at rear property line

[154NH773]

When proceedings have been initiated under this act for the opening and laying out of any public road in the township, the road shall be physically opened for use by the public within a period of five years after completion of the proceeding. If the road is not opened or if no proceedings have been commenced to compel the opening in five years, then the proceedings are void and the land proposed to be taken shall revert to the owners of the land free of any easement or right of the public to use the land.

There are still some unanswered questions.

The normal procedure (in my state) is when a town lays out a street by ordinance, they take ownership of the property. Did that happen?

What about the obvious use by the utility? Do they have an easement, and what does it entitle them to do?

 

[FarmerJ]

Im not sure why a town would have to pass a ord to vacate the road that they never built and already has a ordinance in affect that says what would happen to any so called roads they did not get done. I suggest what you may want to do is get them to vacate based on the ord that is already in place then have survey done and in hand and soon as its on paper as vacated, fence it in with in 3 inches of your side of the lot line and if you have evidence of nbr removing damaging your fence( nanny cam - Vid cam aimed from your house to the rear ) call the police file police report and sue the neighbor for the damage.

 

[justalayman]

The normal procedure (in my state) is when a town lays out a street by ordinance, they take ownership of the property. Did that happen?

that is not true in all states. In some, the roadbed is simply a ROW on the adjacent owners property. so, the landowners are the servient tenants and the municipality is the dominant tenant.

 

[154NH773]

that is not true in all states. In some, the roadbed is simply a ROW on the adjacent owners property. so, the landowners are the servient tenants and the municipality is the dominant tenant.

I agree with you; however, it is possible that the town took title in order to lay out the road. My town would not lay out a road until title passes to them, although it's highly possible that his town did not take ownership of the roadway.

The problem here is that it is only spectulation until there is some proof of either situation, and we can only guess until all possibilities are examined.

We do have pretty solid evidence that others (utilities) have utilized the "ROW" property and probably have an easement that may affect the OP, so the town is not the only dominant tenant if the layed out road is actually a ROW.

 

[154NH773]

So, lets say the township passes the ordinance officially vacating the road, that was laid out by ordinance in 1985. What would my next step be? Am I wrong to assume that since it was laid out by ordinance in 1985 and not physically opened within 5 years, that the above mentioned statute would be applicable?

If, in fact, the road was laid out under the particular statute, then technically there would be no legal need to vote on a new ordinance to vacate the road as it meets the criteria for vacating by not being opened in a timely manner. The land, and the town's interest would revert to you; and any rights inferred from the town's interests would be nullified (such as the neighbor's right to utilize the ROW on your property).

The town officials are probably just covering their rears, by having the vacating passed as an ordinance. That will probably be to your advantage, as there will be a record of the town's action in vacating the road. Otherwise; if you just claimed the road was vacated under the terms of the statute, you might have to go to court to prove it.

You should not have to go for a quiet title once the town has vacated the road, but you should have them specify that the road reverts to the former owners with no rights for the general public, just to be safe.

You still have the utility problem, but that is separate and probably doesn't create any rights for your neighbor.

 

[notmyj]

If, in fact, the road was laid out under the particular statute, then technically there would be no legal need to vote on a new ordinance to vacate the road as it meets the criteria for vacating by not being opened in a timely manner. The land, and the town's interest would revert to you; and any rights inferred from the town's interests would be nullified (such as the neighbor's right to utilize the ROW on your property).

The town officials are probably just covering their rears, by having the vacating passed as an ordinance. That will probably be to your advantage, as there will be a record of the town's action in vacating the road. Otherwise; if you just claimed the road was vacated under the terms of the statute, you might have to go to court to prove it.

You should not have to go for a quiet title once the town has vacated the road, but you should have them specify that the road reverts to the former owners with no rights for the general public, just to be safe.

You still have the utility problem, but that is separate and probably doesn't create any rights for your neighbor.

I haven't addressed the utility right of way as it doesn't seem to have any effect on my issue with the neighbor. If the utility company has an easement, so be it. Not too concerned about it, nor much I could do about it.

My reasoning for the quiet title action was to have the right away removed from my deed. Currently there is a paragraph in the deed describing the ROW, stating it is entirely on my property. I would like to have this paragraph removed from my deed. If a quiet title is not the correct instrument, what would be?

The solicitor did some research and thats how we found the ordinance that officially lay out the road. What he couldn't find was WHY they had officially lay out the road, 20+ years after it was originally planned, when clearly, no improvement or effort was made to open it. Never the less, he wrote the ordinance and the board is agreeing to vacate.

As far as I know, the township has never taken title to the land, as it is still included on my deed, and I am being taxed on the area the ROW covers, as part of my lot. I believe I am just the servient tenant of the ROW.

I figure with an ordinance vacating the ROW, and susccessful quiet title action to remove the ROW from my title, then there would be no question that the neighbor would be encroaching on my property and tresspassing. (All summer long he would try to mow 25ft past the line on the ROW just to irritate me. But he only cut it if he managed to cut his before I cut it.

 

[154NH773]

As I said, the utility easement has no effect on your neighbor's actions, so if your main concern is the neighbor, you are proceeding in the right direction.

If the Town is the sole holder of rights to the ROW, then a legal statement from them that they have extinguished any easement rights they hold, and revoking any right of the public based on their rights, then that document (perhaps in the form of a quit claim deed) could be filed with the Recorder of Deeds with reference to your property. The quit claim should be written by your lawyer to ensure it adequately releases your property. I think that should make a quiet title unnecessary, but check with a real lawyer.

By the way, it would seem that your neighbor has no rights to trespass on your property regardless of the Town's actions. As the Town never opened the road, your neighbor is not entitled to use it, nor is he a dominent tenant. Inform him that he is trespassing and then call the police if he does it again.

 

[notmyj]

As I said, the utility easement has no effect on your neighbor's actions, so if your main concern is the neighbor, you are proceeding in the right direction.

If the Town is the sole holder of rights to the ROW, then a legal statement from them that they have extinguished any easement rights they hold, and revoking any right of the public based on their rights, then that document (perhaps in the form of a quit claim deed) could be filed with the Recorder of Deeds with reference to your property. The quit claim should be written by your lawyer to ensure it adequately releases your property. I think that should make a quiet title unnecessary, but check with a real lawyer.

By the way, it would seem that your neighbor has no rights to trespass on your property regardless of the Town's actions. As the Town never opened the road, your neighbor is not entitled to use it, nor is he a dominent tenant. Inform him that he is trespassing and then call the police if he does it again.

I agree that the neighbor has no rights to use the ROW. He is very hard headed, and has been under the impression that it was an open road, not my property since the day they moved in, decades ago. I have only lived here 2 years and he doesnt think I know anything about anything. So, instead of calling the cops when he was trespassing, and parking his truck on the ROW to irritate me, I simply let it go so that I could get the street officially vacated and the ROW removed from deed, ending ANY doubt that he has any right to use the ROW. I figured if I called the police and he was telling them that it was a road and I had no right to keep him off of it, that the police would say its a civil matter, and needs to be decided in court and leave. However, if I have the ROW removed, the property pinned, and a copy of the ordinance, that should be easy enough for an officer to draw the conclusion that he is in fact parked on my property/tresspassing.

Once this is done, I am planning on putting some decorative boulders along my side of the line. When he reacts to them calmly explain that while he was trying to irritate me, I was busy going through the channels to make sure he had 0 right to my land and any further use will considered trespassing and dealt with accordingly.

Again, just trying to get my ducks in a row, and all bases covered before I go and move the rocks on my property, to another place on my property, and replace them with a few large boulders that will be just below grade.

As for the quit claim deed, I don't think that will ever work. The solicitor is trying to tell me that I need to sue every person in my plan of lots since I am trying to take over a street. He is failing to even recognize that it is a ROW, not a street that has been opened, It is soley on my property, and flat out ignoring the above mentioned statute. Personally I don't like the solicitor, I think he is slimy and he tried to give me his card, because he'd be glad to handle the suits for me, after the vacation was done.... I think not. But, I think his idea of suing every person would be needed if the road were opened, and used by the residents. But as it has never been opened, is just a ROW, and only on my property, I don't think I need to sue everybody. I think I need to sue the township as they would have the rights to the ROW build a street for the public use. As that never happened, the public wouldn't have rights to use it, thus the township would be named in the suit.

I was going to file an uncontested action to quiet title against the township. As they have passed the ordinance vacating the street, it would be clear that they are not contesting the quiet title as they have already relinquished their rights and interest in the property, making this a slam dunk.... at least, that's how I see it happening.

My only question is which is the correct instrument? A simple motion asking for declaratory relief, or a motion to quiet title?

 

[154NH773]

"My only question is which is the correct instrument? A simple motion asking for declaratory relief, or a motion to quiet title?"

Sorry, I can't advise you on this; perhaps someone else will.

I believe a quiet title action would unnecessarily open a can of worms. You will have to notify your neighbor at a minimum, giving him a free forum to contest your claim. You never know what a court might do.

If the Town extinguishes the easement, and declares so in a legal document such as a quit claim deed, then that document can be filed and be accessible in your chain of title. If you get a quit claim decision in your favor, that would also have to be filed so it would show up in a title search and validate your claim that an easement no longer exists. The difference is that your neighbor would not get a chance in court to make a claim.
Once you get the quit claim, block access to the property, and let your neighbor initiate a quiet title at his expense if he's so inclined .
As to the solicitor; unless there's wording in the easement language, or in the law establishing the road layout giving others some rights, then I can't see any reason to listen to his advice about suing everyone in the development.
This is all just my opinion, based on over ten years of lawsuits over very similar ROW/easement issues, but I don't know all the facts in your case, so you should consult a local attorney.

 

[154NH773]

If you get a quit claim decision in your favor

Sorry, I meant; "If you got a quiet title decision in your favor..."

 

[Terminus]

Have you retained a lawyer yet?

I hope that your neighbor is not going to push for his rights in the r/w......Because right now I think your process is flawed. Very flawed.

First, you stated that your neighbor has been using the public right of way since it was created (1985) by the town.....So his right very well could be vested by this point. He is using the right of way and has had the right to do that as it was a public right of way. Now the interesting point, and I have seen this in multiple states, is that while the town can vacate their right in the right of way, it does not mean that other rights (those of the adjoining owners or utilities) will go away with the vacation of the r/w to the town. Just because ONE dominant estate of an easement vacates it's rights does it mean that the potential rights of all dominant estates go away. What I have seen (from New Hampshire all the way to South Carolina) is that often when a municipality closes (vacates) a R/W, a residual R/W is left for the adjoining land owners. Now the adjoining land owners can also vacate their rights, but you have not discussed this.

Getting the town to vacate their rights is definitely one of the steps in this process....But what you are trying to do is much more complex and should NOT be done with help from only the online forum. You are also relying on the town solicitor....and you need to remember that he is only representing the town's interests, not anything the might have matured in the private rights or utility world.

15NH- Once you move out of New England....A majority of public roads are purely a R/W easement for the public good. While I am a big supporter of roadways being fee title owned by the sovereign, that isn't the case in many places.

 

[154NH773]

15NH- Once you move out of New England....A majority of public roads are purely a R/W easement for the public good. While I am a big supporter of roadways being fee title owned by the sovereign, that isn't the case in many places.

That's true in NH also, but usually when a town accepts a road from a newer subdivision (by laying out the road), it also takes fee title to that road. Most older roads are still ROW, including the state highway that runs through my town.

I concur with everything else you stated, and have tried to stress that with the OP; that others, like utilities, will have residual rights, and depending on whether the town can revoke all rights the public may have in the laid out road.

when a municipality closes (vacates) a R/W, a residual R/W is left for the adjoining land owners.

That may, or may not, be the case in this situation. The way the law is written, it looks like the town may have the ability to revoke all public interest in the road. That doesn't mean that the neighbor can't make a claim by some other means, like adverse possession.

I agree that local legal advice is required.