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Posted: 8/19/2006 3:58:44 PM EST
[Last Edit: 8/19/2006 4:00:29 PM EST by chrism101]
I have a problem with getting access to a piece of property I own in another state.

The land that my brother and I purchased is 20 acres, it was purchased from an employee/ friend of my father approximately 5 years ago.

He had either 30 or 40 acres total and sold 20 to us, now all of that purchase was on the up and up, but the land is for all purposes now Landlocked.

The land our 20 acres, his 10 or 20, and another 40 that is shown as indian land is in the middle of an area known as the Ti Valley Ranch. The Property is in South East Oklahoma.

This Ranch is 18650+/- acres.
Of course we bought our land for sporting purposes and the New Ranch Owners are building a Deer hunting Lodge on the property for several $million.
Needless to say all roads over their property are gated and keyed and we cannot enter.
The Ranch itself has changed owners 4 times since 2002.

Upon traveling out there to speak to the Ranch Manager, he said that there are no legal easements through their property.
Our property, those mentioned above and even another he said was 1300 acres have no easements or right of way.
The owner will not grant access but he added if it was up to him he would, but he cant make that decision.
He said that there are no easements and if we could find one they would have to give us access.

But In the past there has to have been access, the person we bought the land from had lived there in a trailer
had a few kids and such and had crossed the ranch in some form to get in and out. That was before he went to prison, but thats another story.

So if that person used it at some point they had Prescriptive or Implied Access Easement, because they where openly using it to come and go,
Although No documented legal easement. Is that enough that a judge would grant us access ?

Im really in No position to pay out of state lawyers fees for a battle against a multi million dollar investment group that owns the Ranch.

They mentioned that they bought someone elses landlocked land recently for $450 and acre, So they mentioned that purchasing our land was an option .

I wouldnt take that for it, but I think they assume that we cant afford to go to court against them, which is realistic,
and that we would sell it if we cant use it.

Are there any real options that arent going to require years of legal wrangling?...
Is there a type of county commission that assigns right of ways without court battles?
What would be a more than acceptable price to sell the land to them?


Thanks for any help or insight you can offer..
Link Posted: 8/19/2006 4:07:09 PM EST


Without going to court, I doubt it. Around here, you go to court and the court will usually force one of the landowners to grant you an easement (for a price). It sucks for all involved.

Buying landlocked property is pretty stupid, so I really have to ask, why didn't you do some research on this before you bought it?

Link Posted: 8/19/2006 4:16:50 PM EST
Don't know about Oklahoma, but I do know in Mississippi you can't be landlocked. I bought 40 acres this year, and my paperwork shows a perpetual easement over the adjacent property to reach the public road.

You may end up having to get a lawyer, but I'd be surprised if you didn't have access of some sort.

PaperMaker
Link Posted: 8/19/2006 4:21:51 PM EST

Originally Posted By Papermaker:I'd be surprised if you didn't have access of some sort.



If he had it, it should have showed up on a title search and be on the plat map.

Link Posted: 8/19/2006 4:23:59 PM EST
Go here, Section 4, easements.

66.102.7.104/search?q=cache:gbj_5FQkr-wJ:pods.dasnr.okstate.edu/docushare/dsweb/Get/Document-2486/F-784web.pdf+oklahoma+land+access+easements&hl=en&gl=us&ct=clnk&cd=15


IIRC you have to granted a right of access, you may need ot pay for the upkeep of the road way, IIRC you have to granted the most direct route.

Check with an attorney.,
Link Posted: 8/19/2006 4:26:38 PM EST
When we bought it, the guy kept the other part of his land, and sold us the 20 acres because he was still using it and accessing it...
We bought it and anticipated using it in the future to build a hunting camp.

We havent really made any efforts to access it since then, assuming that after we purchased it we had the same right of access. Now we wish to go forward with our original intentions, but have no "legal access"

But the problem is that the person we bought it from stopped living there and they no longer accessed their land daily. So the people locked up the gate and threw away the key so to speak.
The ranch itself has been sold four times since then and the new owners wont give any access.
Link Posted: 8/19/2006 4:31:20 PM EST

Originally Posted By Waldo:

Originally Posted By Papermaker:I'd be surprised if you didn't have access of some sort.



If he had it, it should have showed up on a title search and be on the plat map.



Not necessarily, if one or more previous owners allowed it, he may have a classic inverse/adverse condemnation case. Depends on the state, but if access was allowed by previous owners (note the plural), a follow on owner is probably bound to let it continue. Might take a court case.

Depends on the state, but I expect that a court case will find that a right of way or easement exists.
Link Posted: 8/19/2006 4:34:50 PM EST
Link Posted: 8/19/2006 4:43:14 PM EST

Originally Posted By PaDanby:

Depends on the state, but if access was allowed by previous owners (note the plural), a follow on owner is probably bound to let it continue. Might take a court case.

Depends on the state, but I expect that a court case will find that a right of way or easement exists.


Probably, but he will have to get the court involved.
Link Posted: 8/19/2006 4:45:39 PM EST


Rough image of the area, outline = ranch borders, star = approximate location of land.

You can clearly see the roads exist across their property already, they are well maintained and gated. They run right to and along the edge of property.

The main county road is the one from the left that says pine top and runs all the way past the gates and such. the dotted line along the pond is the one that leads south to the land.
Link Posted: 8/19/2006 4:47:39 PM EST

Originally Posted By chrism101:
i7.tinypic.com/250kyuq.jpg

Rough image of the area, outline = ranch borders, star = approximate location of land.

You can clearly see the roads exist across their property already, they are well maintained and gated. They run right to and along the edge of property.

The main county road is the one from the left that says pine top and runs all the way past the gates and such. the dotted line along the pond is the one that leads south to the land.



I am allmost willing to bet that the ranch is using that land as their own.
Link Posted: 8/19/2006 4:48:23 PM EST

Originally Posted By C-4:



yeah the guy said already "too bad ya aint got a helicopter"

I bet he'd shit if we got one to chopper us in during hunting season...
Link Posted: 8/19/2006 5:24:44 PM EST
Ok I got my brother to scan the platt map and its actually just below that star where the land is.

But this shows the parcels of land including ours mixed among the huge ranch, which was then owned by Longreach Assoc.





ours is the area in blue.

almost all of it is now owned by the Ranch, the other people without access are the people there beside us, the indian land, and the ones listed as security trust gene warr.

I would assume that alot of people either dont know they own land there, dont care, and dont use it, because it still looks like a bunch of small pieces around if they havent bought them out.
But this platt is dated 1993' so im sure it is very different now.
Link Posted: 8/19/2006 5:41:58 PM EST
Over here in Ma, you would have to go back to Book 1 at the Registry Of deeds checking for any easement on all abutters’ property. The easement will be on the deed of the Property it crosses, not on yours. Here, once an easement is granted, it for ever and can not be removed and does not have to show on the present day deed to be in effect.
I would get a Real-estate Atty. on this one ASAP.
Link Posted: 8/19/2006 6:03:39 PM EST
any thoughts on how expensive the atty would be...

We bought it cheap, but they basicly offered $9000 for it if they are serious.

Id atleast like to see $1000 per acre, I think $20000 would buy us a nice piece of property elsewhere.

But I dont see any reason to spend $5000+ to fight millionaires for access.

All they need to do is to stall continually with lawyers that im sure they already pay on a monthly basis.
Link Posted: 8/19/2006 6:06:47 PM EST
Link Posted: 8/19/2006 6:43:28 PM EST
Upon reading This OK Supreme Court Case I think I would have a legal precedent:
\
JONES v. WEISS
1977 OK 188
570 P.2d 948
Case Number: 50057
Decided: 10/18/1977
Supreme Court of Oklahoma



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Cite as: 1977 OK 188, 570 P.2d 948
--------------------------------------------------------------------------------




ROYCE DALE JONES, APPELLEE,
v.
PAUL WEISS, TERESA WEISS, PAUL HRBACEK, AND VIDA MAE HRBACEK, APPELLANTS.

Appeal from the District Court of Murray County; G. Dixie Colbert, Trial Judge.

¶0 This case involves an appeal from an order of the District Court which found that appellee, his assigns, licensees and invitees possessed a right-of-way of necessity across appellants' land. Finding that the trial court did not err in making this determination, nor in establishing a procedure for the selection of a route to be used by appellee and the other parties involved, we affirm the action of the trial court. AFFIRMED.

Reed, Hurst & McNeil by Edd R. McNeil, Davis, for appellee.

Gibbard, Allman & Allman by Frank Gibbard, Sulphur, for appellants.

DAVISON, Justice.

¶1 In June of 1946, Robert L. Freeman, a resident of Murray County, died. At the time of his death, he was the owner of a tract of land located within Murray County. While the probate of Mr. Freeman's estate was in litigation, a portion of the land which had belonged to the deceased was sold to Phil and Glenda Cornell, who are not involved in this litigation, but who are remote grantors of appellant. For the sake of convenience, we will refer to the tract of land purchased by the appellants as the Weiss Ranch.

[570 P.2d 949]

¶2 The portion of the deceased's land which was not conveyed to the Cornells is completely landlocked, being entirely surrounded by land originally owned by Mr. Freeman and by land of strangers. The heirs of Robert L. Freeman never made a conveyance of the remaining landlocked tract. However, that tract was sold to appellee in a tax sale conducted because of the heirs' failure to pay ad valorem taxes on the tract.

¶3 Appellee, the owner of the landlocked tract, brought an action in the District Court of Murray County, asking that court to recognize a way of necessity across the Weiss Ranch, which is north of and adjacent to the landlocked tract. The trial court issued an order recognizing a way of necessity. That order granted to the appellee and his wife and their lawful assigns of record, and their lawful invitees and licensees a way of necessity across the land of the appellants, the Weiss Ranch, in order that the landlocked tract might be used and enjoyed.

¶4 In issuing the order, the District Court found that the appellee had no means of ingress and egress to the land owned by him, other than by the way of necessity over the land of the appellants, and that the land of the appellants and appellee were originally owned and conveyed by R.L. Freeman. The court also found that the conveyance of a portion of the grantors' land which left the retained tract landlocked, created a right-of-way by necessity for the purpose of access to the landlocked tract, since there was no express agreement to the contrary.

¶5 Appellants, owners of the Weiss Ranch, appeal from the order of the trial court which recognized the existence of a way of necessity across their Ranch.

¶6 While recognizing that a right-of-way by necessity can be created by implication, when real property is conveyed, appellants argue that the intent of the parties to create a right-of-way by necessity must clearly appear from the transaction itself. In support of this proposition, appellants cite Frater Oklahoma Rlty. Corp. v. Allen Laughon H. Co., 206 Okl. 666, 245 P.2d 1144 (1952). This case is not supportive of the proposition, as the case involves the creation of an easement in the wall of a building claimed to have arisen by implication, and did not deal with the creation of a way of necessity.

¶7 Under the facts presented here, where the conveyor of land retained a landlocked portion, the law implies that a way of necessity was intended, unless contrary intent is inescapably manifested. The intent to create the easement is thus deemed to be shown by the type of transaction involved, and no other evidence is necessary to establish the intent of the parties to create a way of necessity. A succinct statement of this principle is found in Powell on Real Property § 410, which provides in part:

"When an owner of land conveys to another an inner portion thereof, which is entirely surrounded by lands owned by the conveyor, or by the conveyor plus strangers, a right of access across the retained land of the conveyer is normally found. Without such a finding the conveyed inner portion would have little use, * * *. Thus, unless the contrary intent is inescapably manifested, the conveyee is found to have a right-of-way across the retained land of the conveyor for access to, and egress from, the landlocked parcel. Similarly, an easement by necessity is found when the owner of lands retains the inner portion conveying to another the balance, across which he must go for exit and access." [Emphasis added and footnotes omitted]

¶8 The American Law Institute's Restatement of Property at § 476 g, discusses the same principle, stating in part:

"If no use can be made of land conveyed or retained without the benefit of an easement, it is assumed that the parties intended the easement to be created. This is true not only where it is claimed by the conveyor but also where it is claimed by the conveyee. It is assumed that the parties could not have intended that the land retained by the conveyor should be useless in his hands, though the assumption may not have too firm a [570 P.2d 950] foundation in fact. The inference as to intention which is made is influenced largely by considerations of public policy in favor of land utilization.

* * * * * *

If the necessity of an easement is such that without it the land cannot be effectively used, nothing less than explicit language in the conveyance negating the creation of the easement will prevent its implication." [Emphasis added]

¶9 In the case before us, the landlocked track was retained by the heirs, and the court, applying the above stated legal principles, found that the parties intended to create a way of necessity across the conveyed tract of land, the Weiss Ranch. As there is nothing in the instrument of conveyance to show a contra intent, we hold that a way of necessity by implication arose when the common grantors of the parties conveyed a portion of their land and retained the landlocked tract, which was later purchased by the appellees.

¶10 Appellants also assert that even if a way of necessity exists, the right to use the right-of-way does not extend to the assignees, licensees and or invitees of the appellee. In Selvia v. Reitmeyer, 295 N.E.2d 869 (Ind. 1973), the Court of Appeals of Indiana, Third District, ruled on a similar question. We adopt the rationale of that court. In that opinion, the court stated:

"Where a way of necessity or another form of easement is created in favor of a dominant tenement and a portion of the dominant tenement is transferred to a new owner, the new owner acquires a right to use the easement over the servient tenement. Annot., 10 A.L.R.3d 960 (1966), and cases there cited. However, the latter rule is subject to the following limitation as stated at 962 of 10 A.L.R.3d:

`As a general rule, if the increased or additional use or burden brought about by the subdivision of the dominant tenement materially burdens the servient estate, the courts will not allow the right-of-way easement to pass to the subsequent purchasers of the subdivided parts. Whether or not the increased or additional use would amount to an unreasonable burden is a question of fact.'" [Emphasis added]

¶11 In the case before us, appellant argues that the burden upon his estate would be substantially increased, and that the burden would interfere with his ranching operations. Under the law stated above, the right to use the right-of-way passes to subsequent grantees of the dominant estate, unless undue burden is created. The question of whether an undue burden would be created was a question of fact, which in this case was tried to the court. On appeal from a judgment in an equity case, this Court will examine the record and weigh evidence, but will not disturb the trial court's judgment unless it is clearly against the weight of the evidence. E.g., Matter of Woodward, Okl., 549 P.2d 1207 (1976). The record before us does not demonstrate that the recognition of the way of necessity will necessarily create an undue burden upon the servient estate. Accordingly, we hold that the trial court's findings were not clearly against the weight of the evidence, and we thus affirm the trial court's order.

¶12 Lastly, appellants argue that the trial court erred in ordering the following:

"That the defendants [appellant owners of the Weiss Ranch] have the right to select the route over their property to be used by the plaintiff and other persons named hereinabove, [appellee Jones and his assignees of record] and the said defendants may select a route that is least burdensome to them so long as they are reasonable in making said selection; that the plaintiff and other persons named hereinabove must use this right of way in a manner that is least burdensome to the defendants; that in the absence of any other reasonable route to be selected by the defendants, the route traveled across the lands of the defendants by the parties hereto, their attorneys and the undersigned Judge of the District Court on January 13, 1976, [a pasture road used for many years by the owners and employees [570 P.2d 951] of the Weiss Ranch to reach remote pasture feeding areas and stock ponds] to the lands owned by the plaintiff is deemed to be a reasonable and proper right of way to be used by the plaintiff and other persons named hereinabove."

¶13 Appellants argue that if the plaintiff and all those whom the court order encompassed are permitted to follow the pasture road, it will take vehicular traffic through feeding areas where cattle bed down at night and past stock ponds where cattle tend to congregate, and would thus create an impossible condition for orderly ranching, and thus would create an undue burden upon the servient estate. Again, the question of whether an undue burden exists was a question of fact, and this Court on review will not disturb the trial court's ruling unless it is clearly against the weight of the evidence. Additionally, we note that appellants' argument is based upon the proposition that persons found to have a right-of-way of necessity across the Weiss Ranch have the ultimate decision as to the choice of the route. The record simply does not support that proposition. Thus, we affirm the action of the trial court.

¶14 Finding that the trial court did not err in recognizing a right-of-way of necessity, and did not err in finding that such right-of-way existed in favor of appellee, his assigns, invitees and licensees, and that the trial court did not err in setting forth the process for choosing the route to be used, we affirm the findings and order of the trial court.
¶15 AFFIRMED.

¶16 All the Justices concur.




Citationizer© Summary of Documents Citing This Document


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Cite Name Level
Oklahoma Court of Civil Appeals Cases
Cite Name Level
1994 OK CIV APP 93, 878 P.2d 1077, 65 OBJ 2721, DeWitt v. Cavender Cited
Citationizer: Table of Authority
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Cite Name Level
Oklahoma Supreme Court Cases
Cite Name Level
1952 OK 84, 245 P.2d 1144, 206 Okla 666, FRATER OKLAHOMA REALTY CORP. v. ALLEN LAUHON HDWE. CO. Cited
1976 OK 55, 549 P.2d 1207, MATTER OF WOODWARD Cited

Link Posted: 8/19/2006 6:56:06 PM EST
Easement by estoppel. When the land was purchased, there was an implied easement so you can have access to it. Now that a new landowner owns that adjacent land, you have an easement by estoppel. Trouble is you have to have a court affirm that right and that costs you $$$. The land owner is probably seeking to buy you out cheap.
Link Posted: 8/19/2006 7:03:30 PM EST
You can and will be granted a right of way to you land. You will need to get it in court. It will cost you several thousand dollars minimum.. It is up to you if it is worth it, or if you are better of selling the land. However, If you fight and win in court I bet the hunting club would be willing to pay a lot more per acre. They don't want you there. Use that to your advantage.

I would probably respond, to them that I would accept $ XXXX per acre as it is. The price after being granted a right of way through the court will be a lot higher, and include any legal fees it costs me to get the right of way. By the way, I plan to put in a public shooting range, race track, or any other thing that they don't want on my land which happens to be in the middle of their land.
Link Posted: 8/19/2006 7:05:09 PM EST
[Last Edit: 8/20/2006 5:27:40 AM EST by AeroE]
Does the deed say anything about an easement?

You should exhaust all your no cost options by talking to the local prosecutor and the state attorney general before you file in court and researching Oklahoma law. You might find someone that will help out just because the ranch owner screwed them in a deal.

I'll bet they are trying to skin you out of the property.

You might have to invent an Indian tribe and claim that 20 acres as your clan's sacred ground.
Link Posted: 8/19/2006 9:07:00 PM EST
I have asked this question of our county attorney, and in GA if you have had access to your property (on paper or otherwise), the sale of the surrounding property cannot leave you landlocked. Property transfers/changes etc must continue to give you access to your land. The clearing and upkeep of access routes is on you.
*NOTE* I gave no effort to verifying this, I took his word at face value due to his position and I have paraphrased here.
Link Posted: 8/20/2006 6:02:26 AM EST
Thats alot of good news from you guys...

But I do know that the roads they currently have run right to and along our property.

They are very improved already, ( to the point that they are better than the county's roads they are just gated.

We dont need to build a road or drive through a field or veer off of their roads and across their pastures at any point until we are basically on our land.

So is there any reason a judge wouldnt let us use their access roads, especially if I am not opposed to keeping them locked and gated so long as we have access a few times a year?

on the other side of the coin, what could they say or use to keep us out?
Link Posted: 10/27/2006 3:10:14 PM EST
[Last Edit: 10/28/2006 6:09:45 AM EST by timb3]
What ever happened with this? I have a similar situation with some inherited land. Did you ever get things worked out?
Link Posted: 10/27/2006 6:13:54 PM EST
Cant do anything yet, still gathering info for use by the inevitable Lawyers...

The helicopter idea is looking better everyday...
Link Posted: 10/28/2006 5:19:43 AM EST
Well, I'm sorry to hear that. Best of luck to you. If you have time, post an update when you get it worked out. I have a feeling I'm probably about to go through the same sort of thing. I just have to wonder why some of these folks have to be such asses about simply letting someone get to their own land when there's already a road straight there and all they'd have to do is give you a key to the gate.
Link Posted: 10/28/2006 5:29:01 AM EST
Remeber that your attorney costs will probably be paid by they increase in your land's value. You mentioned about $5K and I would bet that your land would increase in value more than that with the easement. BTW, there is probably an easement already on past deeds. You can research it yourself before activating the lawyers. or hire a title company to do it.
Link Posted: 10/28/2006 5:42:28 AM EST
You mentioned the "county" road...

I'm sure you've already looked at this, but if the county (still) owns the road you should have no problem gaining access to it.

if not, (county gave road and maintenance responsibilities to owner) then I don't have anything to add.
Link Posted: 10/29/2006 3:19:59 PM EST
all we have to prove is at some time the same person owned our land and the land around it, who ever created the parcel automatically granted easement, but we have to prove it. Not easy with it previously being indian territory. But we are working on it slowly.
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