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 own approximately 5 acres in New York. An easement of right of way (ROW) was placed on the property in 1939 for the purpose of putting in a road from one highway to another. Since that time the person putting the easement on the property has passed away and the easement was never used in all these years. Her estate was donated in her will to the Presbyterian Church, and the church will not repond to any legal letters they have received. Do we have to file suit against them to get them to respond and what is the quickest way to handle such a matter?”Typically – though not always – a Right of Way easement is what is known as “appurtenant,” meaning that it passes automatically with the land that benefits from it. (This is opposed to an easement “in gross,” which belongs to a specific person.) You’ll have to look at the document which created the easement to be 100% sure, but chances are that whoever owns the land has the easement.
Question: However, you said that the easement was for the purpose of connecting two highways, so is it possible that the easement belongs to the government (city, county, highway authority, etc.)? Again, you need to check the document to be sure.
Answer:
Assuming that the easement belongs to the church, my experience is that different people respond to different types of communication. Some will respond to a polite letter or phone call; with others you need to have an attorney send the letter or call before they’ll pay attention; and still others won’t respond until they’re served with a lawsuit. My advice, unless you’re in a time crunch, is to work your way through the options, starting with the least expensive.
