Property Right of way?

My family has had land dating back to my great great grandfather. When my mom and uncle were adults, my grandfather gave them each a piece of ground. When we were kids, and still yet today, we only had 1 road back to the back land. The same road my grandfather and his father used as a child. When my grandparents passed away, my parents got the remaining land. My uncle sold his piece og ground. It runs from the main road, beside my grandparents home, where my parents live now. Then across the road we used. These new owners now say it is not a way for us back. We are to use a lower road that is for the people who bought land in the back. This road is on the survey, but it not noted "road" . The surveyor said he didnt think it needed marked as we all know its a road to the back land. The new owner is now parking things across the road so we cant use it. Do we have the rights to use it? In my grandpa’s will it has that we do and all his decendents…please help!

6 Responses to “Property Right of way?”

  1. John S Says:

    If the will under which the present owner or his predecessors in interest took possession includes within it a defined right in the owners or residents of the "back land" to use the road, then he cannot dispossess you of that interest. Documentary evidence of the reserved right to use the road is all that you need.

    Otherwise, although I can’t speak for everywhere, not practicing everywhere, what this sounds like to me is a prescriptive easement, which is a right to use property based upon consistent use without objection over a period of time. It is not "quiet title," which concerns ownership. You are not claiming ownership of the land, but a right to use it for a purpose for which it has consistently been used. You will need proof of its consistent use, the lack of objection, and the length of time.

    You should speak to a local real estate attorney about how to best protect your interest in this road. If you do not protect an easement, you can lose it.

  2. Exoilfeildtrash Says:

    If he bought the land and there is another way to reach it he has the right, if not he has to leave right of way.

  3. Luchador Says:

    It is called an easement and because of the long term use you could have a good case.

  4. sylvia r Says:

    Yes ,If you have a will take it to your county appraisal and maybe they can figure it out.

  5. CHARITY G Says:

    It’s called quiet title. You have more than enough evidence to substantiate quiet title.

  6. stevegrif123 Says:

    It would probably not be an actual easement unless it is expressed in the deed of conveyance (the words "reserve" or "reservation" is what you should look for in the deed). However, easements may be implied under certain circumstances. It sounds to me that your situation would fall under what is called a prior use easement. There are basically three elements to fulfilling this type of easement. Without getting into an analysis of any one of the particular elements, you have to ask yourself if using this road is "reasonably necessary" to enjoying the benefit of your property.

    Also, since the deed was conveyed to the new owners, has this made your land landlocked? If so, this would probably fall under another type of implied easement called an easement by necessity. Is the only access to the main road through the use of the road in question?

    I know it may be in your grandfather’s will, but think of yourself in the buyer’s shoes; do they have any notice of this? The best (but not only, as I have shown) place to express your grandfather’s intentions is in the deed itself.

    Research both of those types of implied easements (prior use easement and easement by necessity). Remember, the purpose of those types of easements is to put property to good use.