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 purchased a home three years ago and our only access is via a private road/easement which was granted to the individual who had our house and our neighbor’s house built about 18 years ago. Since the time we moved in, the owner of the easement has subdivided their property into two parcels. The front parcel has an existing house which is accessed via a city street but the back parcel is accessed via the same private easement road which we use. The owners of the land over which our easement runs is in the process of having a home built on the second parcel and one of the conditions of their building permit is that they must run sewer lines back to the house (we are on septic) and the only place where the sewer lines can run is up the middle of the 150′ easement road. The builders informed us that when the sewer company puts in the sewer, that we will not have access to our property for three days. This means that not only will we be unable to bring our cars into our homes, but that our foot access may be severely curtailed and that we will have to walk close to 12 foot deep ditches. The sewer installers have further said that they will not put down the steel plates common to such an installation as the expense is too great. I have contacted the city. Their planner has agreed to try and put some pressure on the contractors to provide access, but we have basically been told that because it’s a private road, they don’t have jurisdiction.
Can the owner of the easement and/or their contractors deny us access during this process?”The first thing you should do is take a look at the document which created the easement. It may have some language which helps clarify this situation. More likely, however, is that you just have a grant of access without any detailed language to cover this situation.
Question: If the city will not police this issue because it’s a private matter (which is probably correct), then you are left with the civil courts. In theory, you could sue the building neighbor, either for money damages or to get an injunction (for example, to require that they provide steel plates during construction). On a practical level, suing for an injunction is a very expensive proposition given that you’re only losing access for three days-and even if you decide to invest the money, a court may not consider three days to be a significant enough loss to warrant an injunction.
You would need to consult a local attorney to determine the exact cost and likelihood of success in your area. However, you may be in a position where your best bet is to convince your new neighbor that some compromise might be in order. The implied threat of a lawsuit for money (perhaps in small claims court) may help him think of the steel plates as not being all that expensive, after all.