How Can We Terminate the Easement?

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We live on a dirt road that is not maintained by the county. We have owned the house since 1978. The offer of dedication was made by the developer in 1950, but was never accepted by the county. It is still an easement over property that we own and pay taxes on. This was not a problem until 1993 when the school district built an elementary school that backs our road. The school district paved the road directly behind the school but not the rest of it. Some of the parents and staff use our dirt road to access the school instead of using the intended paved access. They drive at excessive speeds, ignoring signs and posted speed limits, kicking up large clouds of dust when it is dry and creating potholes when it is wet. The county does not want to pave the road. We feel it is not right that we are expected to pay for the maintenance of this road that is used more by the public than by us (6 houses on 1 acre lots, plus 2 vacant parcels). If we want it paved to get rid of the dust we are expected to pay for all of it. The county claims it is private so they are not going to pave it, but on the other hand says we can’t keep the public from using it. There are paved accesses available to the school. Can we close our road to through traffic? What can we do?

This is a pretty tricky situation, that will depend on a number of factors. First of all, it seems pretty clear that this is not a public road. As a general matter, a road dedication is not effective unless explicitly accepted by the government, which you said did not happen in this case. You said that there is an easement, but it’s not clear the nature and extent of this easement. I assume that you mean that the public has an easement over the dirt road. If it is a written easement, it will be important to see exactly what was (and was not) granted in that easement. If it is not written, then it would be a prescriptive easement, meaning the history of public use would be important in determining the nature and extent of the easement. Once you have that information, you should also consider the fact that a written easement can be expanded through use (that is, for example, you can have a prescriptive expansion to an existing written easement). So since it has been quite some time since the school was built, there can be an argument based on usage since that time.

With all those factors in mind, if the current use is in excess of what is granted in the easement, then you can restrict the usage, via lawsuit. Depending on how long the road is, though, it might be cheaper to pave it. If there is any easement, though, you probably can’t block off the road. That would most likely be an unreasonable restriction on the legitimate use of the easement, even if you’re only intending to block off the excess use.

Before you make any final decisions, I would strongly suggest consulting with a local real estate attorney, who can give you an opinion on the specific facts of your case.