Property dispute

[Mark@Sea]

I may end up needing an attorney for this. I'm in Hawkins county, and hesitate to bug our resident legal beagles. That being said, maybe someone can offer some informed advice on this.

I have an easement for ingress and egress which extends 20 feet to either side of a line down the center of the existing private roadway. When I bought the property 6 months ago, the easement/road was in such bad shape it was not passable to vehicle traffic. I put about 7000 into having it graded, ditched and graveled. The deed is nonspecific regarding maintenance/repair.

The property owner decided to log the land surrounding my property, and his logging company has used the easement for a bulldozer and a skidder. Logging activity adjoining the driveway have already caused a drainage pipe to fill with sediment. The resulting trenches caused by rainfall across the easement are beginning to be a problem. The loggers have today dropped a couple of large trees into and across the right of way. As the right of way is a steep driveway cut into the side of a mountain, the impact points on the downhill side (notching the edge and extending into the gravel roadway) and the logging debris on the ditched side are going to rapidly destroy vehicle access to/from my home with the first good rain.

I've already spoken to the owner regarding this; he was noncommital. Unfortunately, due to the circumstances surrounding the purchase (my parcel was originally part of his land, deeded to his daughter and lost in foreclosure) the owner is somewhat hostile to my presence. He had planned to wait for the banks' foreclosure price to drop to nearly nothing and repurchase it, counting on the poor condition of the right of way to discourage other buyers (this is what he told me, not conjecture).

Who is financially responsible for repair to the right of way? As the logging is going to continue "into next year" and loggers' use of the right of way will likely continue, who is responsible for ongoing maintenance required due to their activities?

I cannot afford to continually have the road repaired. Do I have to sue the owners, or is there a simpler procedure (that won't get me jailed ) for getting them to either stop destructive activity on the easement, or continually maintain it to be vehicle accessible? It is literally the only possible wheeled vehicle access to my property.

[Guest 6.8 AR]

I think you might have to sue someone, guessing him, since he is one responsible for the logging

operation being there. At least for damages arising from their operation, and that you maintain it, not him.

The deed is nonspecific for maintenance/repair, but is it specific for who has the right to use it? In other words,

does he maintain any control over any use of it. This is your only access to a public street or highway, right?

I think a judge would look at who is maintaining it and who damaged it.

It's been a long time since I dealt with landlocked property, Mark, but you do have some control in that piece of

land that I don't think he can just come in and damage at his, or anyone else's leisure.

[Mark@Sea]

Yeah. Absent this road, the only access to the property requires rotors. The deed specifically says that I (the landlocked owner) have use of the easement for ingress and egress.

[Moped]

Man that sucks! Sounds like you are going to have to get a Lawyer. You might talk to the logging company and let them know that they are expected to keep the road open at all times and the ditch and drains clean and if they don't, then they will be included in any legal action too. If you sue the land owner, they need to be sued as well, since they are the ones actually screwing the road up, at his behest.

Edited August 17, 2012 by Moped

[Guest 6.8 AR]

If it's a forced easement over someone else's land and is maintained by you, I think you have control over it

and he has to repair any damages he causes. I'll try to refresh myself on this stuff this evening and give a better

answer, if someone else doesn't beat me to it.

[Guest 6.8 AR]

Find a decent real estate attorney that the owner doesn't know and pick his brain on what to do.

That easement is almost always transferable. It stays with the land unless another deeded parcel is

given that allows access to the land and I think it would take another device to remove the easement,

then.

Yeh, get a lawyer if he isn't willing to repair the damage.

[Mark@Sea]

Thanks for the advice. I may have to phone it in Monday if we get any heavy rain.

[jtluttrell]

I'm no lawyer, but it sounds to me like you would be within your rights to protect your access to your home. The deed may not mention maintenance, but I would darn well think it would stop someone from destroying your right of way.

I hate you're dealing with this. I would think a lawyer could at least confirm what rights and/or options you have with a consultation. I hope it works out in your favor.

[Guest 6.8 AR]

I'll be interested in hearing more, Mark. I hope everything works out in your favor. It should.

[BrasilNuts]

I used to work for a logging company and if we damaged anything it had to be returned to it's original state. There were times we had to repair ditches, culverts, roads and reseed the areas where our trucks were loaded. This may have all been worked out in the contract before hand. If I were you I'd go and look for the logging crew foreman and talk to him about it.

If that doesn't work it may be time for a lawyer.

If that doesn't work it may be time for... well, you know.

Edited August 17, 2012 by BrasilNuts

[Louisb]

Your beef is with the logger, he is the one that "damaged" your property.

I think you will find that legally he has to return it back like it was.

Legality and reality usual follow different paths at about this point in the conversation.

[Lumber_Jack]

Your beef is with the logger, he is the one that "damaged" your property.

I think you will find that legally he has to return it back like it was.

Legality and reality usual follow different paths at about this point in the conversation.

That's not true, the liability lies with the landowner who contracted the logger. And his responsibility is subjective

I do think they cannot destroy integrity of the right of way but they do have rights to use it. Now this make take a court order to get solved.

Mark you'll have to be prepared to prove the logging practices have damaged your road. Take lots lots pictures with dates.

Have you spoken to the logging contractor? He may be unaware of your unhappiness and simply going on direction of your neighbor. If he(logger) thinks he will have to spend a lot of time and money fixing your driveway he may alter his logging strategy.

[Guest 6.8 AR]

I'm no lawyer, but it sounds to me like you would be within your rights to protect your access to your home. The deed may not mention maintenance, but I would darn well think it would stop someone from destroying your right of way.

I hate you're dealing with this. I would think a lawyer could at least confirm what rights and/or options you have with a consultation. I hope it works out in your favor.

An easement does give him a certain amount of control over that piece of property since it is his access by a device.

http://www.mccorklej...f_easements.pdf

There is some good information on this link that points out phrases like "full enjoyment" and helps explain an easement

for ingress and egress. What I get out of it, at least partially is that when you, the grantee, are given an easement over

someone else's land, you actually have control of the use of that land, and the grantor cannot restrict or damage the

land without being liable to you. The grantor has, by the fact of owning the land you have possessed by the easement,

has "enjoyment" of the land since he actually owns it, but that is effectively diminished by the easement itself.

I guess sometimes law can sound silly, but it builds on itself to come to a defined end, eventually.

In other words, you may have to sue the grantor for not abiding by the easement rights you were granted in the deed.

Just think about how much fun would be had if it was a land contract and nothing would be recorded until a future date!

You wouldn't want to go there.

Edited August 18, 2012 by 6.8 AR

[Mark@Sea]

I've spoken to the logger. I'm sure he'd be willing to 'fix' it to the limit of his capabilities, I am also sure they won't be willing to bring in 120 tons of gravel when they're done. A graded clay road is worthless; with the first rain you're unable to get up or down. As this is going to be an ongoing problem for the next 8 months or so, either they continually maintain (which means grade and gravel) or they need to stay off it. The problem in this instance is that a couple of trees from above that switchback fell downhill and across, notching the edge.

Thanks for the link, 6.8. I guess this is going to end up in court, which is unfortunate. As I said, the landowner is unhappy that I am here in the first place, this isn't gonna make him any happier. I don't want to be a jerk about it, but I do have to have useable access.

At this point I guess I had better talk to an attorney, to see if I should start with a lawsuit or if a gentle reminder (a bill for repairing damage to date) would be in order. Either way, the longer I wait the more it will erode.

Edited August 18, 2012 by Mark@Sea

[Lumber_Jack]

Yeah Mark, I'm afraid you're right. A lawyer is going to be necessary and time is of the essence.

[Guest 6.8 AR]

I doubt the logger even has a right to use the easement without your permission. You have effectively "full enjoyment"

of that land, unless there is some kind of kink in Tennessee law. I doubt it, though.

I was once pretty knowledgeable with real estate law when I was a broker, but never being a lawyer, you know I'm not giving advice.

That was also about twenty years ago, and things do change, but the principles don't. I think I would contact a lawyer who knows this stuff well and assert to that logger to get off the easement and repair it immediately. The lawyer will guide the dispute with the landowner in front of a judge if he has to.

The landowner will come up with silly arguments like "the rain would have done the same amount of damage" or "it's my land, also". Rain is a natural act, not like the one man had on the easement. The ownership argument is explained in the deed.

Edited August 18, 2012 by 6.8 AR

[Guest 6.8 AR]

Also, the value of that timber being taken will easily cover any costs that logger will incur. He ain't doing it for nothing,

nor is the landowner.

[Lumber_Jack]

Also, the value of that timber being taken will easily cover any costs that logger will incur. He ain't doing it for nothing,

nor is the landowner.

It'll cover it, but neither will want to spend it to repair the road.

How much would it take to tapir the road? 2 loads of gravel and clean the ditches? Does the culvert need replaced? Remember they don't have to rebuild the whole road just portions that are affected.

[Guest 6.8 AR]

Ah, Mark, it doesn't matter whether the other guy is happy or not. He infringed on your happiness and it's time to make

you whole again.

Then you can walk up to him and say we are now both happy.

[Guest 6.8 AR]

It'll cover it, but neither will want to spend it to repair the road.

How much would it take to tapir the road? 2 loads of gravel and clean the ditches? Does the culvert need replaced? Remember they don't have to rebuild the whole road just portions that are affected.

Doesn't really matter whether they want to or not. I just put it out there to show there are means to be dealt with if anyone

cried too much.

[mikegideon]

Noncommittal is a lot better than refusal. I would get with a good lawyer and figure out my rights. Somebody tearing up an easment road can't be uncommon. My guess is that the lawyer will say they owe you for the damage to your improvements, and that it would be the likely outcome in a lawsuit.

Then, I would go back to the land owner and try to work it out. I would even agree to let them just keep it passable, and then do the complete repairs when they're done logging. Nothing worse than lifetime hostilities between neighbors. A lawsuit will accomplish that. Much better to let them know as gently as possible that they will lose in court. Then, their "conscience" will usually take over.

I've been thru a few land disputes. Lawsuits can be interesting and even fun, but they're way too expensive.

[gregintenn]

I'd make sure I've exhausted all avenues of talking with the owner, as you'll have to live with him in years to come. Try to keep the conversation civil, and only pertaining to facts. Do not let emotion into it. If that fails, I expect a call to the Tennessee Department of Conservation would quickly make him want to repair damage and act to prevent any further damage. I will tell you that this call would end any chance of him ever being a good neighbor in the future, and should only be used as a last resort, just like getting a lawyer involved. It is my experience that they are a pain in the keester to deal with if you're on the logger's end of the situation.

[Lumber_Jack]

Doesn't really matter whether they want to or not. I just put it out there to show there are means to be dealt with if anyone

cried too much.

Yeah my point was a lawyer will have to be involved.

These problems are all too common. If the landowner had a proper contract with his logger, he could hold the logger liable and get rapairs done. Chances are he doesn't so the reaponsibility will fall back on him. depending on the size of the tract the proceeds may not be a large as one might think, therefore cause the landowner to be even more heaitant to cooperate.

As a consulting Forester we have had many times that a logger damaged a neighbors property, regardless of intent, we have always had means to get the repairs done.

[Lumber_Jack]

I expect a call to the Tennessee Department of Conservation would quickly make him want to repair damage and act to prevent any further damage.

Not likely. Doesn't sound like they have violated any environmental laws. No water quality hazards.

You might call the county forester and see if he can talk to them, kind of an intermediary. He won't have the ability to ticket them, but could help afirm their responsibility to fix the road.

TDF Contact

Grainger, Hancock, Hawkins

Richard Van Inwegen, Area Forester

P.O. Box 121, Rogersville, TN 37857

(423) 272-7130

[Guest 6.8 AR]

Most helpful and wise, Lumber_Jack.

I forgot you had a relationship with this kind of stuff.