[AT] OT, Right of Way

[David Bruce]

A layman's perspective after dealing with a similar issue in NC. A 
"landlocked" parcel with sort of access via a private drive. It was part 
of my maiden great aunt's estate and my aunt was the the responsible 
party for the estate. I accompanied her to a meeting with a local lawyer 
and he explained NC law as granting an easement to any landlocked 
property but it had to be done through the courts. He suggested that as 
a first step trying to get the landowners affected to sign an easement 
so the property would no longer be landlocked. With some wrangling it 
was handled. Turns out that property sold to someone who owned adjoining 
property so the issue turned out to be moot but the idea was to handle 
things without court action if possible.

Thus my suggestion earlier to try to work things out before relying on 
legal means. If that fails legal means are a fall back position.

David
NW NC



On 4/28/2015 2:35 PM, John Slavin wrote:
> I thought I might weigh in on this a bit, as it’s in my wheelhouse, so to speak.  First off, real estate law is one of those areas of law that is uniquely controlled by state law.  So interpretation in one state have little influence across state lines.  There are however, some general themes present in many states and might serve as a starting point.  In Missouri, access ways, or easements, can be created one of several ways.  1) Express Easement.  This one where someone gives an express easement.  Generally, it would need to be in writing and records.  2) Prescriptive easements, otherwise known as easements by adverse possession.  In Missouri, the adverse uninterupted use has to continue for 10 years.  3) Easements by implication or Implied Easements, or Apparent Easements.  These easements arise where the land was owned by one owner and then when the land was split that access was already in place over a defined route, so that the buyer of the servient estate should have known that the access would burden his land.  4)  Easements of necessity.  Arises where land is landlocked.  There are some cases where these are granted even though the land is not truly landlocked, but where access is VERY, VERY difficult, as in where there is a river separated in the part of the land that can be reached from land that can’t.
>
> I should also point out that sometimes there are issues as to whether a public road still exists.  Just because the county quits maintaining it, doesn’t mean it’s closed.  If it once was a public road, and the public continues to use, it may still be a public road.
>
> I do know something about this area of the law.  I have handled many of these cases, and one I litigated to success in the Missouri Court of Appeals.  See:  https://scholar.google.com/scholar_case?case=14481144519708285367&q=ira+e.+claybrook&hl=en&as_sdt=6,26
>
> These cases are largely fact driven, and normally end up being he said/she said affairs.  And the problem is that many times, the people that know the facts are long since dead and hearsay rules prevent others from saying what the deceased was heard to say.  For example, one person says the use was with permission v. the other who says it was adverse use.  If is was adverse use that continues for 10 years, in Missouri, it could ripen into a prescriptive easement.
>
> John C. Slavin
> Attorney at Law
> jslavin at marktwain.net
>
> Everything around you that you call life was made up by people who are no smarter than you.  Steve Jobs.
>
>
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