Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
We have an easement through our farm. The neighbor decides after 23 years to put a road in. After the survey, our fence is 2 feet on the easement. The fence has been there 50+ years. Who is responsible for replacing the fence?
This is a potentially tricky question. First, I would investigate whether there is any chance that the easement owners abandoned it. This is not likely, but worth asking.
The second question is whether you have obtained prescriptive rights to keep the fence where it is because it has been there so long without permission.
Both of these questions will have to be posed to a local real estate attorney, as the specifics of the law (such as how long you need to use land to get prescriptive rights, or even if it is possible to get prescriptive rights over an easement) vary from state to state.
However, there is also a practical question: How much will it cost to move the fence? Is it worth paying an attorney to find out what your rights are (or, more likely, find out that you can spend a lot more money to litigate the question), or can you just work something out with the easement owner?
