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Private Roadways Near Lake Properties

On Behalf of | Jan 29, 2009 | Real Estate Law

Many lakefront cottages in New Hampshire have been built on or near private roadways located off public roads. Questions often arise about the rights and obligations associated with private roads, especially when a private roadway is located on a portion of someone’s cottage lot (and not simply alongside of and outside of the bounds of that lot). In that situation, one might wonder if the lot owner can move the location of the roadway on his property without the permission or consent of other lot owners who use the roadway for access to their lots.

An easement is a right to use the land of another for a particular purpose, such as access. Easement rights are created in various ways, including by express grant or reservation in a deed or, without a deed by implication. Easement obligations are, likewise, created by express grant or reservation in a deed or by implication. For example, if Smith deeds to Jones the right to go over Smith’s lot to get to Jones’ lot (located behind the Smith lot with no frontage or direct access onto Lake Road), then Smith has burdened his lot with an easement in favor of Jones’ lot. Smith has created an easement obligation for himself and an easement right for Jones.

The easement terminology used to describe the two lots in relation to each other is that the Smith lot is the servient estate and the Jones lot is the dominant estate. Another technical term used to describe the nature of Jones’ interest in the right of way is that he holds or owns an appurtenant easement; that is, Jones’ right to use Smith’s property for access to his lot is “tied to” or “attached” to the ownership of his own lot in such a way that the law does not recognize the two rights as existing separately from each other.

That said, however, the scope or the parameters of Jones’ right to go over Smith’s lot are strictly defined by the terms and the language of the easement deed itself, and Jones’ is not free to decide how and where his rights of passage are located and governed (unless the deed expressly says so). In situations where easement rights are created by implication, that is, not by deed, there are other ways to determine the details of the easement holder’s rights, but that discussion is outside of the scope of this article.

The case of Sakansky v. Wein, establishes as settled law the principle that a servient estate owner (Smith, in our example) can not relocate or deflect an existing right of way having a definite location upon the ground, even if a new or alternate way is provided (emphasis added). In Sakansky, the servient estate holder owned land subject to a private right of way held by the dominant estate holder for access to the latter’s lot. In connection with the construction of a second story on the servient’s tenant’s building, he sought to restrict the dominant tenant’s access to vehicles of eight feet high or lower. In order to accommodate the dominant estate holder’s trucks of eight feet or higher, the servient estate holder proposed an additional right of way in another location, unobstructed as to height. Even though the Court found that at the time of the original grant of the easement, the passage of trucks greater than eight feet high was not contemplated by the parties, the Court applied the rule of reasonableness to the exercise of both parties’ rights and found that, even though the dominant tenant’s “use is limited by the bounds of reason, … within those bounds it has the unlimited right to travel over the land set apart for a way.” The Court referred to the parties as being bound by contract (the contract being the deed which granted the easement) stating that where the right of way had a definite location upon the ground, the servient estate holder could not “compel the [dominant tenant] to detour over other land of theirs.”

Applying this principle to the question at hand, where a private roadway has had a definite location on the ground for many years, those owning rights to use that roadway have a right to the continued and uninterrupted right of use of the roadway in its original location and may not be forced to use an alternate course built by the landowner over whose lot the roadway is, in part, built, even if the new course is a superior one.

Beth H. Davis is a director at Hamblett & Kerrigan, P.A.   Her present practice focuses on real estate and business transactions. You can reach Attorney Davis by e-mail at [email protected].