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Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 99506
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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I'm reading up on right of way issues. i have 100 acres.

Customer Question

I'm reading up on right of way issues. i have 100 acres. a neighboring land owner is claiming right of way through my land. he is NOT land locked. There is no reference to a right of way in my deed, BUT, there is a historical 8 foot wide path connecting our properties.
JA: The Lawyer will need to help you with this. Have you consulted a lawyer yet?
Customer: i have - doing some more searching on my own
JA: Is there anything else the Lawyer should be aware of?
Customer: that's the basic issue.
JA: OK. Got it. I'm sending you to a secure page on JustAnswer so you can place the $5 fully-refundable deposit now. While you're filling out that form, I'll tell the Lawyer about your situation and then connect you two.
Submitted: 6 months ago.
Category: Real Estate Law
Expert:  Ely replied 6 months ago.
Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms. I a sorry to hear about this situation. Please tell me: 1) What state is this in?2) Have your land and his ever been one piece of land before being divided in ownership? Or, not sure? This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 6 months ago.
1. WV, Berkeley County
2. VERY long time ago. In the 1800s. Both properties have multiple surveys. There is no dispute that a dirt path does exist. It is shown on surveys historically. When following his deed to the 1890s, there is a reference for a 4 year right of way by the sellers of his property for harvesting wood from his land, but that has nothing to do with my property.My question is if neither deed has express written grants of right of way, AND he is not land locked, what are my chances of not having to deal with a ROW through my property if this ends up in court.
Expert:  Ely replied 6 months ago.
Thank you. If no deed has an easement that allows a right of way and he is NOT landlocked, then someone in his situation has arguably no claim for an easement by necessity (which is what he seems to be claiming). This would require a a strict necessity for the claimed right-of-way if the claimant’s property is landlocked or otherwise has no egress/ingress; and, the two tenements were once under common ownership. Likewise for easement by prescription. "In order to establish an easement by prescription, the use of a private way over the land of another must be continuous and uninterrupted for a period of ten years under a bona fide claim of right, adverse to the owner of the land, and with his knowledge and silence." Berkeley Development Corp. v. Hutzler, 229 SE 2d 732 - W Va: Supreme Court of Appeals 1976 (internal citations omitted). So there is claim based on your facts. If he wants to, he can try to establish it by attempting to go to Court under a "quiet title" action (which is how one requests an easement). But he is unlikely to get it. Until/unless the Court grants him said easement, it does not exist. I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how experts get credit for our time. Rating my answer the bottom two faces/stars (or failing to submit the rating) does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.
Expert:  Ely replied 6 months ago.
Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question because you never responded or replied positively. I am simply touching base. Let me know. Thanks!