How to Handle Issues With Road Easement / Right of Way Easement

Share the Knowledge!

“Several contiguous tracts of land in rural Kentucky share a deeded easement for ingress-egress to the county road. The easement follows an “old farm road.” The language of the easement grants the servient estate owner the right to relocate the easement. Does this allow the servient estate owner to create a separate right-of-way for each easement holder; thus requiring each easement holder to construct and maintain a separate roadway?

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

Relatives own a tract of land in Kentucky which shares an easement with other contiguous tracts for ingress-egress to the county road. They have a final judgment in state Circuit Court affirming their right to use the easement, and a permanent injunction barring the servient estate holder from interfering with their access. Vexed that they refuse to sign an agreement with the servient estate owner restricting use of the easement and giving them the right to terminate their use if – in the servient estate holders’ sole discretion – our relatives violate the agreement; they are attempting to exercise a clause in the easement permitting them to relocate the right-of-way. My relatives have incurred significant expense in improving the existing right-of-way, and construction of a new roadway to the specifications required in the easement would entail considerable additional expenditure. Their argument is that the right to relocate the easement means relocation of the easement for all tracts which benefit from its use, not to selectively establish separate rights-of-way for different easement holders. They also contend that the servient estate holders’ agreement to fix the easement in its original location for one dominant estate fixes the location for all.

They’re going to court soon for a hearing on this matter (the servient estate owner is asking the judge to stop their use of the existing roadway and require them to build a new road), and I just wanted to know if there was a strong legal argument we could suggest that might help their attorney.”

This is a fascinating question, and one which is probably too fact-specific to give any particular answer. It depends on the exact wording of the easement, and probably to some extent on what the judge thinks is “reasonable” under the circumstances. You’ve outlined the obvious arguments on your side, and I’m sure the attorney will make these. The best I can do at this point is wish you good luck.

Share the Knowledge!

Author: House Attorney

A house attorney has answered this question.