BERGERE EASEMENTS AND RIGHTS OF WAY

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STEVE -- COULD WE HAVE A NEW CATEGORY: LAW AS RELATED TO HOMESTEADING?

Easements and rights of Way is a really touchy topic. The law is pretty clear about them AND has enormous holes in it. I am going to block and copy from the Bad Neighbor thread as an intro to this thread (hope that's okay):

************ Goodness,, I did not know the bad neighbor thing was sooo wide spread. Really childish of me,I guess, but I was hoping the rest of the country had all nice people! Everyone on CountrySide seem to be really nice!! :O) Still dealing with a bad neighbor that moved in a few months ago. Sigh.... Wrote them a very nice letter, asking them PLEASE stop with the noise,,they did for one day. Now they are back at it. Bigger sigh.... Wish there was somewhere one could good and Not have to hear Machines, chainsaws and all that kind of stuff all day everyday. All that noise can drive a person batty. They still have not fixed the drive they totally messed up,, by the way is on my land, and they have no easement to it. But I have figured, it is not worth my time or health, to be as mean to them as they have been to my family. I mean,, I could very legaly block their entry to their land. Tempting,,, but I would never do it. Right now, we are going to go ahead and shop around for the largest piece of land we can afford in our area. I hate to move again,,but husband was in the Navy for 21+years so we became used to it.But tell you one thing,,, all my lopsided buildings we put up are coming with us!!Lets see, the lopsided chicken house, the lopsided llama shed, etc etc... :O)

-- Bergere (autumnhaus@aol.com), April 26, 2000. *******************

Okay, now I have some questions of Bergere because of her specific problem, but Bergere (ha, french sheepherder, good name!) has my problem in reverse, which is why I am so interested. It would help if I knew B's state since her laws may different from my state laws, but at least I could look up her state code on the interent.

Okay, now the first thing is, in Virginia, there is a law against selling landlocked land. The HAS to be a way to the land. Bergere, in the case of your bad neighbors taking over and using and damaging your driveway, do they have another way to their land? Have you looked on their deed and plat (f not filed with the court the plat should be at the Health Department and building inbspectors offices for when the well and septic and building permits were obtained) to see where the "legal Access" is?

Second, why let them steamroller over you, wrecking your driveway and making all that noise? There should be laws in your state/county whereby you would be compensated for the "taking" -- and they are taking your driveway And your peace of mind. If you try to sell, they will be so obnoxious they will also take your profit and may even end up getting your land at a giant discount.

Now, my situation is the reverse in that I bought land in the woods with a road to it which some other landowners (unbeknownst to me when I bought the land) blocked at gunpoint. The way was shown on the plat. The way also led to other property and those landowners had been run off at gun point and were cowards. They didn't fight. They said, "My land is not worth my life." All very well for them as they lived in big brick houses in nice communities (four "children" of an old lady with Alzheimer's).

Now, my way was not in my deed or theirs. It lay over a property which had been bought in 1900 and the owners died before 1906, leaving it to ten children. This estate was never sold or divided among the children, so five or six generations down in a family of very heavy breeders there is a potential domain of about 5,000 heirs at law! I found about 500 living heirs and got some deeds and recorded them, giving me legal standing to improve the property with a road, so I made a new road over the land for access, bypassing the jerk with the gun, who then put up a gate over the original access, blocking the original access.

Under rules of adverse possession, he says he can seize the original road and the other folks are not fighting him. The time requirement in Virginia is 15 years. I can -- based on his logic -- seize my "new" road but by the same logic that, too will require 15 years.

It seems to me that Beregere's neighbors need to be stopped before any more time passes because if you don't fight, Beregere, you are acquiescing!

What I would like to hear on this forum is first, comments from Bergere as to her situation and what she CAN do (or hopefully what a lawyer advised her were her options) and then I'd like to hear from others with problems related to neighbors either seizing and/or blocking an existent right of way, or neighbors who made a new way (and the reasons for doing so and how they did it) over somebody else's land. Because I need not only road or vehicular access, but also electrical line and telephone land line access, I open this to comments across the board on SOLUTIONS to access problems and do hope not to stir up any negative or attack mode comments.

Thanks in advance. And yes, I know one can't give legal advice, that's why I asked for solutions or "this is what i did that worked in such and such given situation" responses. Thanks again.

-- Elizabeth Petofi (tengri@cstone.net), April 27, 2000

Answers

Well goodness...

No, they can easly make their own driveway... They would have to move a couple of trees to do it,, and a little dirt. But dealing with all the things I have had to deal with since we moved to this state.. over 3 years of it. I am just plain tired. And we truely can`t afford a lawyer. I hope to be able to try to buy them out in a couple months time,, if that doesn`t work. I need more land anyway. My sheep breeding is maxed out at the small place we have now,, and the only way to expand is to get more land. :O) Now, for this state anyway, I know what to look out for,, and to avoid.

-- Bergere (autumnhaus@aol.com), April 27, 2000.


You might be suprised to find out just how much of your land the state and utility companies own ! 75 feet from the centerline of any state road, 25 feet on either side of any utility line(plus access at any place to enter for any service). Than, we have that law to end all decent laws--Iminate Domain. In english that means if they want it,, You Lost It ! I had a gentleman( and I use that term loosely) build behind me and use part of my driveway for access. The lumber and dump trucks ate chuckholes in my gravel. We were at a standoff when the state entered the arguement and graveled the drive. It seems when they grant easement to a new house that they assume the respondsibility for damage to your drive. When planting is over this year, I intend to make a new driveway to my house and close the old one. Just part of my on going--Good Neighbor Policy. The only good neighbor is the one you never heard,saw or read about.

-- Joel Rosen (Joel681@webtv.net), April 28, 2000.

Joel, sometimes you make posts that really fry my synapses and this was one of them. There is eminent domain when the fed or state takes part of a citizen's land. When they do this "taking" it is required (you can look it up as the Code is on the Internet) that the person whose land is taken is COMPENSATED, i.e., they have to cough up money!

Now how could your neighbor behind you suddenly start using your driveway if that access was not already in the court records and on your survey plat and the neighbor's? Lately the county where my land is has enacted new regulations requiring fifty-foot access roads or driveways if there will be three or more houses. But they don't put any gravel down that I ever heard of unless the road or driveway was "dedicated" to the state. Also, now the neighbor has been using the access and the state or some entity has kindly graveled it, how, pray tell, do you think you can get away with closing off that access and making a new one?

Somewhere in some thread you posted you live not so far from me? If there are cases on file regarding this in your local court (circuit court?) I would really like to take a day off and come down and read the papers on what you said to see what legal grounds are there which might apply to my situation and/or be useful to me. Do please fill in some more details!!!! Thanks.

-- Elizabeth Petofi (tengri@cstone.net), April 28, 2000.


I'll try Elizabeth. First--yes,they pay for land taken by eminate Domain, about 1/3 the value and if you don't accept the offer, than they condemn the land and take it for free. I live in Craig county and the (law) here is-- the guy with the most ammuition wins. Sounds like your facing that in your county also. The fact is--most of Virginia is becoming militia oriented. Common law is over turning any other kind. The answer to your problem is--let the phone and power company run utilities to your property and build your driveway on their easement. If "Billy-bob" comes out with his gun than call the State Police. Or, you can borrow my AK-47 and let go a 30 round clip and "Ole Billy-bob" will be digging for oil on your brand new road

-- Joel Rosen (Joel681@webtv.net), April 28, 2000.

Thanks for these replies. What I am looking for here is actual law and legal information, case specific and preferably with the cases cited so I can go look them up since I have a problem where some people are trying to take away my original right of way by terrorist tactics and I am trying to create and establish a new right of way by legal tactics without responding to the Cromagnon behavior of my opponents, nor descending to their low level mode of operation, guns, gates, ditches, banks, fences, obstructions, etc.

-- Elizabeth Petofi (tengri@cstone.net), May 01, 2000.


Good Heavens, folks! I guess I will go kiss all my neighbors, at least the ladies! (Guys know me, and would get a committing order). Anyway, we are all pretty much old-line folks, and agree MOST of the time. When we don't, we work it out over a glass of homemade wine or a neighborly visit. We do have the folks "from away" who are infesting our town with the "I'm here, close the gate!" attitude, but so far we dominate. I do 2 things, which while maybe not an answer, are not wasted time. I will be on the Planning Board (again - I didn't want to do it, it was just necessary) in a month. I also have a rifle range in my back yard (completely safe, Algore fans, and I wonder, are any of you on this site?) that my friends and I use at least bi-weekly. The folks who have been here forever don't mind, and in fact encourage it. My 86 year old (female) neighbor regularly picks off varmints with her rifle. Newcomers must adapt. You want the fields (ours), the forests (ours), the views (ours), then you are going to put up with gunfire. (We try to keep it down in other than daylight hours!) To answer your question, I suggest first a communication with the other folks. Then, much as I hate to employ this avenue, find a good lawyer. (This may seem like an oxymoron, but really isn't!) Hope you can make it work! GL!

-- Brad (homefixer@mix-net.net), May 03, 2000.

Cromagnon ? Come on now Elizabeth. Some people try to use the law to steal part of your land ? I for one say that is the Cromagnon behavior! If law is used to steal land than I say that is NO LAW AT ALL and using guns is the answer. I have more respect for the man that stopped you with his gun than for you trying to steal his land with LAW. Count your losses, sell out, and step back and think next time before you get cheated, when buying a bad piece of property. Legally--you can put a drive on the power companies easement ! But --if the neighbor objects--than you shouldn't. THE LAW was never intended to be used for the powerful to steal land--or was it?

-- Joel Rosen (Joel681@webtv.net), May 04, 2000.

Boy oh boy, is this ever getting confused! What fun, no wonder I am having so many problems. NO, Joel, the road existed and it was my right of way as well as the way to other properties. It was a real road and so-called in the deeds. The gun nut got on this road with a gun and stopped people from using the road. His idea was that if he stopped everybody from using the road, then their land would be landlocked and he would own the road. Since he owned the road, all the land owners whose land he had landlocked would abandon their land and he would have it. The closest I can find on this theory in the law relates to ships which have been blown off their course and crashed up on some shore. There the owner of the land has salvage rights. Half the rights go to the owner of the ship (who lost it in the storm) and half to the land owner where the ship has come to rest.

This is of course not at all the same as some jerk deciding to close off someone's road with the object of taking their land away. I call it land piracy becazuse he comes out of his property onto the other person's land to seize what is theirs by law and right. If he did this armed robbery thing with a bank or tried to attack you and take your wallet, would you be so in favor of the gun approach? Not if it was your property someone else was trying to take.

I am not a gun slinger nor do I want to get in a geriatric gun fight. As an American I have the right to enjoyment of my land and home and peace. To me that is law -- that I have the right to come and go to my property that i bought, where I have a plat duly recorded in teh court records showing the access, on which I pay taxes.

Now, the militia and gun nuts you are talking about are making their own law. And they are making it up as they go, so we have two sets or more of law operating.

Rather than fight with guns, I bought the land over which the road goes, or a part of it, recorded the deeds in the court, pay the taxes on the whole property, and had legal standing to make a new road on what I now claim as my part of the whole. This on the advice of a lawyer.

I did not run around (drunk) with a gun threatening other people when I made this new road. And I have not found any lawyer or other person who seems to have any solid knowledge about this situation. What I want to know is, when I built my new road, did I effectually abandon my original road? Could the gun nut who seized the original road -- but did not go through any legal or court process to do so -- but did chase away the other landowners who really did abandon the road -- could this gun nut have actually seized the road and how can the other landowners (including me when i get ready to subdivide and sell part of my land) take it back?

Other questions come to mind. None of which, to me, ought to be answered by brandishing guns.

-- Elizabeth Petofi (tengri@cstone.net), May 04, 2000.


Hi Elizabeth.

I am not a lawyer, but my mother did Right-of-Way appraisal for two states, and she taught me a thing or two.

What Joel keeps talking about is "eminent domain." This means, when a government agency decides it needs a piece of your property for the greater good, they can have it. First they must condemn it, then one of their appraisers figures out what a fair value would be, and then the agency writes the owner a check. If the owner has a problem with the value, they can dispute it in a court of law. They do not get the land for free.

Secondly, there is a thing called "adverse possession." What this means is that if someone openly occupies or uses any part of your land for a period of time, usually several years, they can eventually take steps to have your land deeded over to them for free. This usually happens with inaccurate boundaries from bad surveys. It is pretty easy to stop if you know it is happening, and it sounds like you know it's happening. I don't know the details of how to stop it, but one of their appraisers in your county assessor's office might be able to fill you in or point you in the right direction. Around here, you can find them at the county courthouse, and they're pretty easy to talk to. You could also go to a law library (the county courthouse should have a good one) and look up cases regarding opposing adverse possession. If that gun-toting fellow is on land you have a right to use, or is using a gun to keep you from using such land, he is wrong.

I would also guess that your state has a law that calls "assault with a deadly weapon" a criminal offense, and you only have to be convinced that the guy had intent to harm you to have been assaulted. He doesn't actually have to pull the trigger. If that guy is really keeping you from using a road you have a right by threatening to shoot you, I would get the police out there pronto.

-- Laura Jensen (lauraj@seedlaw.com), May 04, 2000.


Hi Laura In Virginia, if you refuse the states offer in an eminent domain case, than they condemn you and withdraw the cash settlement. Than you lose that piece of land and receive no payment. Also, Virginia is sometimes referred to as the gun runners state. I would say 70% of the population owns multible guns and 50% have carry permits. You have to actually shoot someone to get charged with assualt. In Virginia we have a semi-old refugee problem with dislocated "yankees". They bring with them some city moods,attitudes and opinions on how we should live. The main one is gun control and the second is land access. Just because I build a road to allow myself access to parts of my property does not mean everyone can use it to build houses on the other side. Just because I have an AK-47 in my hand when you talked to me --does not mean you were threatened or assualted ! I heard this quoted once-- "It is not the wolf you fear, it is the animal within yourself that frightens you" The fear people have for my guns is usually jealousy that they didn't have a bigger one !

-- Joel Rosen (Joel681@webtv.net), May 05, 2000.


Boy oh boy is this getting confusing! I'm not accustomed to having messages coming to my mailbox from a forum unless they are personal messages, so I have replied to some personally when in fact they were here!

First of all, I was asking about LAW as passed by appropriate legislative bodies which deal with my situation as inflicted on me by PEOPLE. I really appreciate Laura's repsonse. I never heard of a right of way appraiser. Different states have different specialities and I certain would like to know which two states Laura's mother works in and I'd like to have a a conversation with Laura's mother about this, if that would be possible.

Second, a search of the internet will reveal that eminent domain is a GOVERNMENT thing. While Joel keeps putting it in here I was not asking about eminent domain because Bergere's issues and my issues are related to private citizens and not the government. Joel lives near or within or next to the Jefferson National Forest, as it appears from his postings, so his is a different situation.

Second, that is a lot of hog wash about Virginia being a gun runner's state. Maybe Joel feels threatened and that he has to run around with guns suited to armies and wars, but I do not. I have a revolver which I keep at home for protection. My first defense is my German shepherd. I would need my gun only if or when or after someone shoots my dog. I don't carry my gun with me nor do I have a permit. To me, that is all a topic for another thread.

What I am asking about is laws and cases that I can use. As to adverse possession, there are three main tenets. One, a person has color of title to the land, two, pays taxes on it, three uses it, and four satisfies a period of time. In Virginia the time period is 15 years. After that time, satisfying all the requirements, one goes to court and asks for possessory title.

Now Joel is ranting on about Yankees and people overrunning the land and if not using it for homesteading, why not sell it to someone who would? Well, again, none of that is what i am asking about.

it's a pity to use the word "subdivide" when it has come to mean (in my mind, too) the kind of ticky-tacky homes which are all ostentation and sawdust with glue wrapped with tyvek and a horrible drain on energy resources especially water. I am not talking about that, but rather, subdivision with respect to dividing one's property. If Joel had 40 acres and four children, on his death the land would go to the children. There would be a division. Maybe one child would buy out the others to keep the land intact, but it's not likely. In dividing the land, rights of way to each parcel ought to be worked out intellignetly before the new deeds are recorded.

Joel is right, this is or was not always done. That does not mean that a gun toter should suddenly jump in the face of someone going to his/her property to bar the way and seize the other person's land.

I am not asking about what gun nuts do. I already know and I'm really happy to see Joel expressing his views and to see just how distorted his thinking process is, as no doubt it's what motivates my neighbors. Clearly, respect for the rights or others is a very low priority in Joel's process, because he can just put labels on other people and thus discount them as being inferior to himself.

I grant my enemies equal status with me. I want to deal with people via intellect, not guns and grenades and force. In this case, Joel has changed the tenor of the discussion so that now in response to Joel, what I am asking about is how to deal with gun nuts, by law which should protect my freedom to go to my land without some land pirates (who, by the way, are NOT local people, but who came here from Maryland and Alabama) trying to take my land from me by dint of force, threat, and wile. Actually, the original guy with the gun is dead and his son is much more intelligent about the way he goes about his efforts at adverse possession.

Anyway, all comments solicited but I request that the gun stuff be moved to another thread and we get back to actual laws and what to do, under law, about a person taking over one's way to one's land, or ruining one's peace and quiet with noise, or shooting one's dogs, etc.



-- Elizabeth Petofi (tengri@cstone.net), May 05, 2000.


Elizabeth, I recommend that you talk to a title company officer, and/ or a lawyer. I suspect that the laws on this are different in every state, and that advice given by most of us here won't be applicable to someone else, even if we do know the local ordinances.

For instance, I used to live in California, and almost bought a house which was built right on the property line. I consulted a lawyer, and he told me that for adverse possession to come into play, there could never have been a survey on the line in question, because the person claiming adverse possession had to have been using the land "in good faith", and that the survey cancelled out that possibility.

JOJ

-- jumpoff joe (jumpoff@echoweb.net), May 05, 2000.


JOJ, thanks. I have actually talked to quite a few lawyers, as in spent thousands of dollars on this mess.

That's interesting about the house on the property line. Once when I lived near Luray there was a small subdivision (yes, I hate that word but that was what it was. The parcel of land was really beautiful, situated on the Shenandoah River. The idea was that each person had to be so many feet back from the river so that all could enjoy a trail that ran along the river -- for running or walking or riding their horses. One of the landowners built his house next to the river. Now, how the building inspectors etc let him do it, I don't know. The neighbors all stood around and watched and complained till the house was complete. Then they went to court and the judge ordered him to move his house!!!

When land has been surveyed there are supposed to be "set-backs" from the property line. Greedy people try to encroach on the next property and build dog houses or stables or even real homes on or over the line. You were smart not to buy that house but I wonder how the owner managed to build it without the building inspector or someone protesting?

Anyway, I was hoping for some experience from someone who had an encroachment or attempted adverse possession problem and a war story of how they solved the problem successfully under law!

-- Elizabeth Petofi (tengri@cstone.net), May 06, 2000.


Joel,

As I suspected, taking without compensation is, in fact, prohibited, even in Virginia. As I found by spending less than ten minutes on the net, Article 1, Section 11 of the Virginia Constitution reads, in pertinent part . . .

That no person shall be deprived of his life, liberty, or property without due process of law; that the General Assembly shall not pass any law impairing the obligation of contracts, nor any law whereby private property shall be taken or damaged for public uses, without just compensation, the term "public uses" to be defined by the General Assembly . . . . . . That in controversies respecting property, and in suits between man and man, trial by jury is preferable to any other, and ought to be held sacred. . .

Perhaps you should check some legal sources before you go "shooting" off at the mouth, or at anything else, for that matter.

-- Laura Jensen (lauraj@seedlaw.com), May 09, 2000.


I don't believe there is any reason to be rude Laura , this happened to be someone elses question if anyone should be rude it should be her .We do not like personal attacks here. So please have some respect, not everyone is perfect.

-- justme (havealittlekindness@aol.com), May 09, 2000.


Yes, this was my question, and I really appreciate Laura's answer, which looked up the LAW (which is what I was asking about) on the internet and quoted it. I don't think this was in the least bit rude and it was a factual response.

In fact, I really resent Joel's making false statements about Virginia being a state for gun-runners and some of the other things he said which are totally and utterly false and insulting to my state, not to mention insults about Yankees, etc.

I have a lot of respect for "our forefathers" who sat down together and tried to reason matters out and wrote the Mayflower Compact and the Constitution and our present "fathers" who all too soon will be somebody else's forefathers. While a very small part of what they said talked about the right to bears arms as part of an armed militia, they certainly didn't say or intend individual citizens to be rampaging around with AK-47s or even quietly driving around with them.

While some folks think they can solve all their problems with guns, I am one of that group of citizens who believes in equal justice for all and relies on law and order and not force or threat or falsehoods to win whatever competition is at hand. I spent a large part of my working life as a court reporter and have a great respect for the law -- while not for all lawyers!

Joel has his own reality which I think of as a kind of savage alien, which has no actual reference to or respect for the real law. I believe in freedom of expression, but think it's one thing for Joel to say what he believes, but it's quite another for Joel to make pronouncements as if they were true when, as Laura points out, anyone can do a quick search on the internet and find out what Joel said was NOT true and just derailed or obfuscated the issues.

Now I still have my original questions not answered but it's been rather fun, anyway. I was really angered by Joel's false statements and appreciate that Laura has a cooler head and simply put a direct quote here from the Virginia Constitution to refute Joel which, again, I don't think was rude. Or if it was, certainly was a lot less rude than what Joel did.

-- Elizabeth Petofi (tengri@cstone.net), May 10, 2000.


I originally left this tread because Elizabeth ask me to--so she could get an answer. I didn't see the last responses till I checked back today. The families that lost land for the Blue Ridge Parkway were never given a dime by the government--the land was stolen and many families died on their land trying to stop the building of it. In Virginia they will condemn your land and steal it. The check you would have got is kept for the cost of taking the matter to court. In the 1980's Virginia was nicknamed the gunrunners state because there was no limit to how many firearms you could buy on a single day. Gangs from New York could ride the train down, go get a picture I.D. and buy 300 handguns and be back in New York by dark. On every Interstate crossing into Virginia there is a huge billboard that warns of our criminal penalties for guns now.. In huge lettes it says "EXILE" if you buy a gun illegally it is an automatic 5 years. My feelings about yankee refugees are mine to keep but if the north was such a great place ?--why didn't you stay there ? The answer usually lies in the fact that you could come down here like a carpetbagger and steal something from us dumb ole hillbillies. My love of Virginia as a Commonwealth and not a state is deeper than your opinion of me. So--who needs to get their facts straight ? You can read a lot of law and none of it matters. It is true the law says you have to be paid but you never get what the land is worth and that in my vocabulary is theft.

-- Joel Rosen (Joel681@webtv.net), July 02, 2000.

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