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Lucy, Esq.
Lucy, Esq., Attorney
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I have recently been denied the right by a landowner to use

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I have recently been denied the right by a landowner to use a road/trail onto my land which is "landlocked. This access has been used by family for around fifty years. I live in Wisconsin. My question is can I be denied access through this route although it is not being used for anything but getting to my property. I live in Wisconsin. I seem to recall that if a route is being used for more than twenty years that is is then considered a right of way. Thanks for any help you can give me regarding this situation.

My name is XXXXX XXXXX I'd be happy to answer your questions today.

What you're talking about is called a prescriptive easement. The law says that, if a person openly and notoriously uses the land of another, without permission, for 20 years, he gains a permanent right to do so. The right can only be revoked if the landowner blocks the access, consistently, for 20 years. See Wis. Stat., Section 893.28. You're allowed to take all of the years used by different family members that lived there and add them together, as long as there weren't any breaks in usage (for example, if the property were abandoned for a year, the 20 years starts over). To claim a prescriptive easement, you may have to go to court and file a lawsuit if your neighbor is now trying to block your access.

The starting point is to check the property records. It's possible that there once was a written easement recorded. An easement is ongoing and it transfers when ownership of the land does. So, if you ever had an easement, you still have one, unless the owner bought it from you - he can't unilaterally terminate it.

If there isn't a written easement, and you were using the road with permission, that's unfortunately not adverse, so you wouldn't meet the requirements of the statute. Oral permission to use land is called a license, and it can be revoked at any time.

In that scenario, your options are to:
1. Try to negotiate with the neighbor. Agree to pay him for an easement to avoid going to court. Get it in writing, and record it, so this can't happen again.
2. Send a demand letter, explaining that you'll sue if necessary, and you'll win, so he should just try to work things out. He may take this more seriously if it's sent via certified mail and/or written by a lawyer.
3. Go to the local superior court and file a Complaint for Easement by Necessity. In that case, what you're doing is asking the judge to declare legally that you need to use that road to access your property so he can't stop you. The judge will order you to pay the reasonable value of the easement. He's also looking at strict necessity - if there's another access road that's just more inconvenient, you'll be required to use it.

So, there are various legal theories you can argue, and you might have to go to court, but you will likely eventually be able to reclaim that road for access to/from your land if there is no other way to access it. There is a public policy in favor of allowing people to use and benefit from their land.

If you have any questions or concerns about what I've written, please reply so that I may address them. It's important to me that you are 100% satisfied with the service I provide. Otherwise, please rate my service positively so that I get credit for answering your question. Thank you.
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