Hoping for some input on a ROW situation

[Ron Scott]

Ditto! to what has already been stated above. I've run into this a number of times over the years. If you truely have a deeded right away on a pre-existing route described in your deed, you must be allowed legal access on that route without hindrance. I assume that the deed is recorded with the county clerk as a pubic record.

However, if it is being heavily disputed by the rich neighbor, you will need an attorney to check out the record and legally "re-establish" your right of legal entry. The low income landowner may find a pro-bono or legal aid attoney to do this at no charge or the county prosecutor might do it.

Ofen a letter from the attorney to the "blocking" landowner will put him on notice and that takes care of it and you can enter the right of way. If the rich neighbor is still trying to stop entry, then a visit by or the sheriff accompanying entry with you may be ordered.

After awhile the rich landowner understands the situation that he bought his property with a legal right of way to the adjoining property. Once the legal access is "renewed"
as proper, the poor landowner should keep it active and current with periodic travel across it.

After awhile they may become "good" neighbors

I manage an 80 acre forested parcel which has had this situation going on for 30 + years. The adjoining landowner really hates it when we harvest the adjoing landowners timber, but we continue to wave at one another as we pass. ;) I travel the access road periodically into my clients property to keep it active since he is an absentee owner and only gets on his property once a year or so.

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[Mr Mom]

had land surveyed and the neighbor called the cops and two cops and a detective show up and talk to both parties.
Sorry for misspelling have a head cold and a fever.

Thanks Alot Mr Mom

[Jeff]

I believe you have everything spelled perfectly.  ;)

[woodmills1]

yes spelling coreccten, but not minre,  didin we fixen the property  axcessen dispute

[Jasperfield]

I have been a Professional Surveyor in NC for 32 years and have seen many similar situations.

In this matter SC is no different than NC in that the r/w legally allows your client to go in, out, and back & forth using the r/w. The r/w gives him legal access. The fact that the road no longer exists does not hinder their right of ingress, egress, and regress. The road is not the same thing as the r/w.

The bad neighbor does not know the law. He is bluffing and is a dog that barks but does not bite.

When land is transferred in SC, everything necessary to its use is transferred as well. Be it expressed or not.

The sherriff will most likely not act unless one of the parties (your client) brings an action. Your client will bear the burden of proof as plaintiff. In my opinion this will not make it to court, rather be decided in favor of the plaintiff by the Clerk.

[cheyenne]

It seems to me this guy is just trying to push people around so he can wallow in his own lack of self respect. That being said, If your client has a deeded row they can't stop you IMHO "BUT" It also sounds like this guy might be trying to pull what they call -latches- If you use & maintain a piece of property for ten years and no one complains or challenges your doing so you wind up owning the property, and  there is case law to back it up. I don't think this can be settled without a lawyer. If it were me I'd find one who had an axe to grind with this jerk. Don't let this self absorbed piece of DUNG buffalo you, just find people who want to put this jerk in his place. If he threatened you with bodily harm or anyone else have him arrested and get orders of protection. Let him start defending himself with his own money. If he gets away with this it will just get worse for your clients....FIGHT...... smiley_bull_stomp......Cheyenne

[thompsontimber]

Been a long day and just now getting around to jumping on here before bed.  Thanks for all the replies folks, lots of good info, examples, and opinions.  I am inclined to agree with Jasperfield and others regarding this guy, and I think he is simply banking on walking over his neighbors like he always has and convincing me that he will be more trouble for me than the timber is worth.  I'm certainly not ready to give up on the situation yet and will try to convince the landowner to at least consult with an attorney.  There is too much at stake for these folks to give in to this man, and I am sure it will be in their best interest to get there road reopened.
As to the questions of how long its been closed, I am not sure.  You can still clearly see the road on aerial photos, but it has been closed for a number of years.  The man I bought the timber from has owned his property since 1957, and it had the right of way when he purchased it.  There was a homesite there, and he raised his family there, but the home is gone now.  The man who is blocking the access purchased his property with the road still in existence in the late 80s.

[thompsontimber]

Sorry, bad info in the last post.  The man blocking the access purchased his land with the easements of record in June 1995.  The road was closed off some period after that, but I'm not sure how long ago.  The plat referenced in the deed showing the drawn dirt road easement was recorded in 1987.

[WH_Conley]

As a disclaimer, I am no expert. Sounds like all that is needed is for someone to stand up and jerk the halter rope.

Sometimes all that is needed to stop a bully is for no one to be bullied.

Laws vary from state to state. A few years ago I bought a piece of property, I was told a few days later that I was landlocked by the owner of the land that the road was on. The county attorney told me what the law said, did not want to go any farther as he he had a private practice to.

Fast forward a day, I went to the land owner, advised him I had chainsaw, a pair of bolt cutters and a gun and was going to my property. 13 years later I have not had one bit of problem.

Jasperfield has probably given the best historical information, as most states differ.

Check with a lawyer first, it is cheap.

[Jasperfield]

It makes no difference how long the access has been closed/blocked.

The denial of access, the passage of time, and possession (as opposed to title) by the neighbor will not ripen into a valid claim.

Adverse possession is not a factor. The elements are not present. The neighbor can (profess) whatever he wants to. That doesn't change the law.

Here in America, and specifically in states arising from the 13 original colonies; It is not necessary to occupy, visit, or keep watch over one's real property in order to enjoy all the rights of real property ownership. This most basic of elements within our legal system arose from English Common Law and is alive and well today.

Your client and the neighbor are most probably hearing all sorts of "street knowledge" about real property law. And I'd say nearly all of what they are hearing is incorrect.

Your client should seek an attorney who specializes in land boundary law (they're not hard to find) and follow his council. If the neighbor is smart he'll step back. Otherwise your client can successfully sue him for damages, delay, fees, etc.

[Ron Wenrich]

I sure do like the input that Jasperfield has put into this thread.  Its a real pleasure to hear someone with expertise give us an earful of their knowledge.

I've heard that when people cut over the line that they can try to claim adverse possession.  It was struck down in one of our courts as similar to mowing the grass.  It doesn't change things.  Putting the road into pasture seems to be the same.

[Tim/South]

I know state laws may vary.

We had almost the same thing happen in our community. A local bully was trying to keep a widow woman from accessing her property. He had build a shed on the deeded right of way. A man from the lady's church took her to see the local Attorney General who decided in her favor.
When she tried to access the property, the bully called the deputy sheriff. With the letter from the DA generally stating the law, the bully filed a suit.
The judge ruled against the bully, told him to move the shed or grant access around the shed.
Bully had to pay court cost. The widow lady was only represented by a church deacon and the letter from the DA.

One point I need to mention. At court the bully said the deacon cussed him out, used foul language in front of his children, had his children there to back him up. Those of us who know the deacon have never seen him upset about anything and never believed the accusations.
In hind sight it would have been better to have a deputy or video present.

This is not about timber.
It is about right and wrong.

[rbhunter]

I know that in Kansas one can go to Washburn University's school of law and get free advice as to what the law says. You may be able to get some free advice from one of the law universities in SC.

Please keep us updated on what happens.

Randy

[thompsontimber]

Thanks again for all the input that has been given and continues to come in, I certainly do appreciate it.  I had attempted to get a little feedback on this from some legal sites and had no luck at all.  Should have started right here where there is always an abundance of friendly help, experience, and good advice.  I expected there were some folks here with experience and expertise in such matters, and it looks like that is indeed the case.  I felt that the law was on my side in this one, and couldn't imagine how the landowner could be legally denied access to his land, but when the other party is so strong in their position, with plenty of money and an attorney, you like to have a great deal of confidence in your position before you start swinging back. I greatly appreciate your contribution to the discussion Jasperfield.  These adverse possession claims are very much a part of the neighbor's argument.  He considers it an "abandoned" road and claims to have closed it with permission to do so years ago, offering access to the family members that might wish to visit their property by parking at his house and walking down.  The last statement I have made to this landowner was a couple of weeks ago when I made my last attempt to negotiate the opening of the road.  He got rather heated and I told him I was not gonna argue with him, but that the right of way does exist, and those folks pay property taxes just the same as he does and they have a right to use their land how they see fit, including harvesting timber.  It seems the law is there to protect those very rights, and my confidence is renewed in my position after all the feedback here so far.  I am gonna work more on this situation this week, and I will keep everyone informed on the progression. 

[Black_Bear]

Adverse possession (AP) is not a factor, mainly because AP affects land owned in fee, and not easements. Prescription, or prescriptive rights, would be the correct term for an easement GAINED (not lost) through simple use over a certain number of years. Either way, this case is neither about AP or prescription. The neighbor's attorney is probably claiming that non-use equals abandonment. That is usually not the case. But, I guess it depends. Who gave permission to "close" the easement, and was any document showing evidence of such "permission" recorded in the registry or clerks office? I'd feel good if I were you if there is no written evidence of abandonment.

Hire an attorney to review the case and if he/she believes that your clients rights are being removed without cause then have the attorney write the neighbor a nasty letter claiming you will hit him where it hurts: in the wallet. Those arrogant neighbors don't mind spending money, but they hate being proven wrong and spending money, especially if they know they will be paying your attorney and court fees.

Or, you may not have a case at all. For a few hundred bucks at least your client will know where he/she legally stands.      

[thompsontimber]

Thanks for the clarification Black Bear.  My understanding of the permission is that the wealthy neighbor contacted the family that owns the land and asked them if they intended to build on the property again (on the old homesite).  They responded that they did not, that none of them ever intended to move back onto the property, that all they would probably ever do is visit the old homesite on occassion.  He told them that he was gonna put his property in pasture for horses, and that anytime they wished to go out there to feel free to park at his barn and they wouldn't have to go through the pasture (open gates, etc.).  The old homesite is a short distance from the man's barn.  There is a gate at the roadside entrance to the old easement, but no gate on the backside.  I was the one who informed the landowner that it appeared his neighbor had blocked his entrance permanantly, as there is no gate on the back side. They thought he was simply being neigborly and had returned the favor, parking at the barn and walking onto their property.  They had no idea there was no longer any way to access by vehicle without removing a fence.  This is my understanding of the "permission" to close the road, and no, there is no documentation supporting any closing or rescinding of the easement.