Re: prescriptive vs expressed easement

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Your question sounds like one of the questions from the RE
exam, to obtain a RE Broker's License, in the exam they use
Mr. or Mrs. Smith a lot....hmmm the exam is very difficult
and complicated that's why only a small percentage passes
the exam

If is not a question from a Real Estate exam to obtain a
Real Estate License, I will suggest you consult with a RE
Lawyer as easements are very complicated and not easy to
understand

My Best advice as a professional in RE

On 3/21/06, Michael Mosko, Jr wrote:
> 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.
>