Q: My deed grants a thirty foot right of way (for utilities and property access) to my neighbors.
However, does this grant them rights to the soil from my land as well? In short, to build up the access road, they’ve destroyed my drainage ditch, taken earth and some of my lawn in the process!
My county commissioners say it’s a private matter because it’s a private road. Meanwhile, the neighbor in charge just laughs and says the grass will grow back and won’t acknowledge how taking earth and removing the drainage ditch (for use as road fill) has harmed me.
A: You probably need the assistance of a good litigator to help you through your issues with your neighbor. A look at your deed and other documents that affect the title to your property may give you a better understanding of what your neighbor can do over your property.
But there are times that old grants in deed contain little detail other than to say that a neighbor has a “thirty foot right of way for utilities and access.” If your deed has a very limited description of the right given to your neighbor for this right of way, you’re left trying to figure out what the law is in your state. That’s where a good real estate attorney might come in handy.
Your attorney actually might have to research the issue in your state. A right of way grant in may come with related rights: the right to install utility poles or to bury utility lines. It may also come with the right to grade the soil to provide for a proper access road. It may even permit the neighbor to pave the land to create the access road. Along with each of these rights there may be a duty and an obligation by the neighbor to take care of the right of way area during his or her use of the area.
More importantly for you is what your state laws say the neighbor has as an obligation when it comes to any destruction of vegetation or improvements located in the right of way. It’s possible your state laws would require the neighbor to maintain a drainage ditch or other means to carry water off or through your property. Your laws may also provide a duty to the neighbor to minimize any destruction on your land.
If you don’t find any other documentation on the title to your land that relates to the right of way, your only option is to find out what the courts in your state have decided are the rights that flow with a right of way and what duties and obligations the person that benefits from the right of way has to abide by in order to continue to use the right of way.
Let us know how things end up.