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Question

In a Texas easement dispute can an old wagon road be considered as an alternative access even though it has not been used since a T Model Ford was bought in about 1915. The actual placement of the road changed at that time since the Ford was not able to go up the hill in the road. The current access has been blocked by the neighbor because he wants the road to revert back to the old wagon road. The wagon road is actually blocked by a neighbor who built a house on it but the wagon road could be diverted to go in front of the neighbor's house. The acreage became landlocked several years ago when the county voted to stop maintenance on the road at a gate (owned by the neighbor who wants us to use the alternative wagon road).

Submitted: 122 days and 13 hours ago.
Category: Real Estate Law
Value: $48
Status: CLOSED
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Optional Information

State/Country relating to question: Texas

Already Tried:
We have sought the assistance of 3 attorneys. The first one obtained a temporary order to allow access to the property but was unable to obtain a permanent order in District Court. The second attorney hired by my siblings for my mom does not appear to have done anything - my mom obtained his case file and it has no helpful information. The third attorney was just for a consult - very helpful but not a real estate attorney. He suggested suing in District Court to obtain a prescriptive easement across the first neighbor. However as I understand the easement law in Texas a person cannot get a declaratory judgment for an easement if any other way exists to get to the property even if that way is more difficult, etc. Does this old wagon road qualify as another way in and out since it has not been used since 1915 or so. We actually prefer the wagon road easement if it is legal. Also what happens if my mom just starts driving on the wagon road easement? She is 82 and a recent amputee from medical malpractice. The wagon road crosses only one other person (her neighbor) who also is her son.

Accepted Answer

Actually if it is usable and drivable, the old wagon road would qualify as an alternative means of ingress/egress, especially if the property is landlocked and there are no other roads available.

I suggest you begin using the road until the neighbor cries "uncle". At that point, when he decides to possibly bring suit, point out to the judge that all other means of entry have been blocked, and this is the only viable means left to enter the premises. Then file for an easement by necessity.

Sincerely,

XXXXXXX XXXXXXXXX XXXXXX, Esq.

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Expert: Dimitry Alexander Kaplun
Pos. Feedback: 98.0 %
Accepts: 679
Answered: 10/10/2009

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Licensed in PA & NJ , specialize in business/contract disputes, immigration, estate creation & admin

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