Posted by Michael Mosko, Jr on 3/21/06

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I am not an attorney. I am a land owner involved in a
rather unique land rights dispute .. involving an expressed-
-deeded easement and a prescriptive easement. The
questionis does and expressed easement void a claim of a
prescriptive easement over the same route,or does two
easements continue to exist?
In Jan 03 we purchased a 130 ac farm, improved the .5
mi long driveway, consturcted a new home and moved there in
April 2004. No one had lived on the land for approximately
20 years. In early 2005 Mr. Smith, who owns the farm next
to our began using our road to enter one of his fields.
When challenged he claimed to have a prescriptive easement
over our property.
However, 2 yrs prior to our purchasing 130 ac the
property had consisted of 2 parcels (1) a 6 ac parcel
bordering on a state road and (2)a larger 124 ac parcel.
The 126 ac parcel was landlocked. The the previous owner
obtained from Mr. Smith a .5 ac parcel of land directly
connecting the 130 ac with the 6 ac and the VA state road.
In exchange for the .5 ac lot Mr. Smith obtained a
deeded/expressed easement over the 6 ac and part of the .5
ac to obtain a additional access to his property.
Prior to the land swap the previous owner accessed the
124 ac parcel using a road that traverses the 6 ac lot, a
2.5 ac lot of a third party (presdriptive eaement) and the
the 124 ac parcel.
From the state route Mr. Smith entered his property at
two locations in this area. First, Mr. Smith entered his
property using a prescriptive easement over the 6 ac lot to
enter his property just at the beginning of the
aforementioned .5 ac parcel and a second location further
along that utilized the 6 ac parcel, the 2.5 ac parcel of a
third party and 1,000 ft of the road through the 124 ac
parcel.
When I purchased the property we constructed a new 500
ft road over the .5 ac obtained from Mr. Smith, connecting
the road over our property directly to the state road. The
road thru the 2.5 ac of the third party was abandoned.
Currently, Mr. Smith is using the expressed easement
entrance to his property and attempting to use the old
expressed easement to enter his property at the second
location. Both entrances end up in the same open field.(??)
For various reasons, we object to Mr. Smith using our
road over the .5 ac and the 1,000 ft of our road located on
the larger 124 ac parcel. Since Mr. Smith obtained a
deeded easement to his property over a portion the same
route of he formerly used via prescriptive easement can he
continue to use all the road he previously used via
prescriptive easement? There is no necessity for him to do
because both entrance end up in the same open field. We
believe if he had wished to continue to use the second
entrance he could have had an expressed easement to this
second location placed inthe deed.
Assuming Mr. Smith had a prescriptive easement over
our road to the second location. In light his new deeded
easement Can Mr. Smith continue to legally access his
property at the second location by claiming the old
prescriptive easement continues to exist?
What do you think. I expect this to heard in the
local Circuit Court some time this summer.

Re: prescriptive vs expressed easement, 3/21/06, by RE Professional.

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