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My father's family has owned property in SE. Oklahoma for 100 plus years.
The property has always had a road that connects it to the county road, but
it goes through my aunt's property. We have always used this road to access
our land and cattle until this last weekend when my loud mouthed
brother-n-law got in to an argument with my cousin who is currently living
on my aunt's property. The drunken cousin has banned the family from
crossing his property to get to our property. The sherriff's office was
called, but they aren't able to grant us permission to cross eventhough my
folks cattle are on the property. What are my family's rights to use the
road? The road was established to a residence in the 1940s and has been in
use by my family every since. There has not been any one living on my folks
property since the late 60s early 70's. We do not have much money to fight
this with high power attorneys. What can we do legally and is it possible
to win this with out the assistance of attorneys for our part? Also anyone
know where I can get educated about this to help myself fight this?
Thank you
John Wilkinson
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My father's family has owned property in SE. Oklahoma for 100 plus years.
The property has always had a road that connects it to the county road,
but
it goes through my aunt's property. We have always used this road to
access
our land and cattle until this last weekend when my loud mouthed
brother-n-law got in to an argument with my cousin who is currently living
on my aunt's property. The drunken cousin has banned the family from
crossing his property to get to our property. The sherriff's office was
called, but they aren't able to grant us permission to cross eventhough my
folks cattle are on the property. What are my family's rights to use the
road? The road was established to a residence in the 1940s and has been
in
use by my family every since. There has not been any one living on my
folks
property since the late 60s early 70's. We do not have much money to
fight
this with high power attorneys. What can we do legally and is it possible
to win this with out the assistance of attorneys for our part? Also
anyone
know where I can get educated about this to help myself fight this?
Assuming the road has been regularly used, you have an easement across your
aunt's land. That easement may have been granted by deed or established by
use. You can go to the county recorder and check the title history to your
aunt's property looking for a deeded easement. If you find it, then whoever
blocked the road is guilty of trespass. You can sue for that. You need an
attorney for that unless you are willing to learn how to do it yourself. If
you don't find the title easement, go see a local attorney about the
prescriptive easement. Learning how to do that part yourself would be hard.
McGyver
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John,
I agree with Mr. McGyver that you should check the deeds for easements
but this sounds like a family spat. Do you really want to air this in
court?" You don't make clear why the cousin has any rights on the aunt's
property other than as a tenant. Talk to your aunt to get her permission to
use the road. Try to patch things up with the cousin as well. Characterizing
this as a "range war" and refering to your cousin as "drunken" are probably
not good ideas.
Good luck,
Dave M
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I agree with Mr. McGyver that you should check the deeds for
easements
but this sounds like a family spat. Do you really want to air this in
court?" You don't make clear why the cousin has any rights on the aunt's
property other than as a tenant. Talk to your aunt to get her permission
to
use the road. Try to patch things up with the cousin as well.
Characterizing
this as a "range war" and refering to your cousin as "drunken" are
probably
not good ideas.
I agree with you about keeping family relations cordial. But even if the
immediate problem goes away, the situation is still sitting out there
without John knowing whether he has the right to sell the property with the
easement, or whether the aunt retains the right to deny access, or what
happens to the easement if the aunt dies or sells, or gives the land to the
cousin. Even if the matter is solved amicably this time, John should still
hustle to the county recorder's office, and then to an attorney, to get the
easement cast in stone for the future. If it turns out that there is no
easement, John will have the opportunity to go to the aunt with a document
to sign, establishing the easement. That won't be possible if he waits
until she dies or sells.
McGyver
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"Wulfdog" <johnw@cwis.net> wrote in message news:<ocydnYhz0tqyL9nd4p2dnA@cwis.net>...
My father's family has owned property in SE. Oklahoma for 100 plus years.
The property has always had a road that connects it to the county road, but
it goes through my aunt's property. We have always used this road to access
our land and cattle until this last weekend when my loud mouthed
brother-n-law got in to an argument with my cousin who is currently living
on my aunt's property. The drunken cousin has banned the family from
crossing his property to get to our property. The sherriff's office was
called, but they aren't able to grant us permission to cross eventhough my
folks cattle are on the property. What are my family's rights to use the
road? The road was established to a residence in the 1940s and has been in
use by my family every since. There has not been any one living on my folks
property since the late 60s early 70's. We do not have much money to fight
this with high power attorneys. What can we do legally and is it possible
to win this with out the assistance of attorneys for our part? Also anyone
know where I can get educated about this to help myself fight this?
Thank you
There might be a recorded easement already, or you might have a right
to a prescriptive easement, or to an easement by implication or by
necessity. None of these is easy to establish; do not expect to be
able to do it without getting professional assistance, and do not "bet
the farm" on succeeding even with the best lawyer in the state on your
side.
Oklahoma has a 15-year period for establishing a prescriptive
easement, during which your use of the road must have been "actual,
notorious, hostile, open, visible, continuous, exclusive and with a
claim of right", your ability to prove all these points must be by
"clear and positive proof", and all of the presumptions are against
you. While your story sounds like a good starting point for a
prescriptive-easement claim, the devil is in the details: your case
has to be good proof of every point the court requires, not just a
plausible story. There's a good article by the Oklahoma Bar
Association on adverse possession and prescriptive easement in
Oklahoma at http://www.okbar.org/barjournal/articles/sa031001.htm
Oklahoma also has easement by implication (see Story v. Hefner (1975),
at http://www.oscn.net/applications/ocisweb/DeliverDocument.asp?citeID=47018).
In easement by implication, which is not exactly the same as easement
by necessity, there must have been an implication that the easement
was to exist when the property was divided: "To establish an easement
by implication there must first be a conveyance that divides one
ownership into separately owned parts. At the time of the conveyance
one part of the property must be being used for the benefit of the
other part, creating a quasi-easement. The use must be apparent and
continuous and must be reasonably necessary to the enjoyment of the
quasi-dominant tract" (Story v. Hefner). Thus if your property had
access to the road only through your aunt's property, and it has
always been that way since the properties were divided, and access to
the road was then as now necessary to make use of the property, you
might have an easement by implication. If you're getting the idea that
proving these things are technical matters that require a lawyer to do
right, you're getting the right idea.
If a title search, which you should be able to do yourself at the
recorder's office, does not turn up a recorded easement allowing you
to use the road, you need to put as much effort as you can into
settling the matter amicably, no matter how obnoxious your relatives
are acting. If you have to take the matter to law, you will need a
lawyer who knows Oklahoma real estate laws and customs, and you will
have to live with the possibility that you will not prevail.
--
Not a lawyer,
Chris Green
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I really appreciate all the informaiton that you have given me. I'm first
going to look into title search to see if there was ever and easement. I'm
nearly sure
nothing like that was ever done since the relatives all got along real well
until the uncle died and the evil aunt took over the property. My father
had leased the uncle's property from the aunt fron his death in 1977 until
her son decided to move into the uncle's house about 10 years ago. My
father and the cousin were
friends and helped each other out until 2 years ago when a bad stroke left
my father unable to do anything with the land or cattle. My sister bought
the cattle
from my father and started taking care of them on my father's land. She and
my brother in law are the ones that got the fight started with the cousin
that eventually
led to him restricting access to the land by anyone in our family. My first
plan is to approch the cousin with the idea that if he will not let us have
easement back across to our property, we will sell the cattle and donate the
property to the US Department of Wildlife Services. This will kill him
because he is a poacher and could not live without having my father's land
to poach deer and turkeys off of. There is also a lake size pond on my
father's property that the cousin makes his own. He will also loose access
to that if the US Wildlife service gets it. I think that threat of him
loosing his little eden would make him think twice about keeping us from
accessing our land. I think he is just greedy enough that he will give us
easement to keep the Governement WD away from his poaching activities.
Outside of that I'm still looking for and attorney and looking into the
title records for a past easement.
I really thank you for all your help and informaiton.
John
"Wulfdog" <johnw@cwis.net> wrote in message
news:<ocydnYhz0tqyL9nd4p2dnA@cwis.net>...
My father's family has owned property in SE. Oklahoma for 100 plus
years.
The property has always had a road that connects it to the county road,
but
it goes through my aunt's property. We have always used this road to
access
our land and cattle until this last weekend when my loud mouthed
brother-n-law got in to an argument with my cousin who is currently
living
on my aunt's property. The drunken cousin has banned the family from
crossing his property to get to our property. The sherriff's office was
called, but they aren't able to grant us permission to cross eventhough
my
folks cattle are on the property. What are my family's rights to use
the
road? The road was established to a residence in the 1940s and has been
in
use by my family every since. There has not been any one living on my
folks
property since the late 60s early 70's. We do not have much money to
fight
this with high power attorneys. What can we do legally and is it
possible
to win this with out the assistance of attorneys for our part? Also
anyone
know where I can get educated about this to help myself fight this?
Thank you
There might be a recorded easement already, or you might have a right
to a prescriptive easement, or to an easement by implication or by
necessity. None of these is easy to establish; do not expect to be
able to do it without getting professional assistance, and do not "bet
the farm" on succeeding even with the best lawyer in the state on your
side.
Oklahoma has a 15-year period for establishing a prescriptive
easement, during which your use of the road must have been "actual,
notorious, hostile, open, visible, continuous, exclusive and with a
claim of right", your ability to prove all these points must be by
"clear and positive proof", and all of the presumptions are against
you. While your story sounds like a good starting point for a
prescriptive-easement claim, the devil is in the details: your case
has to be good proof of every point the court requires, not just a
plausible story. There's a good article by the Oklahoma Bar
Association on adverse possession and prescriptive easement in
Oklahoma at http://www.okbar.org/barjournal/articles/sa031001.htm
Oklahoma also has easement by implication (see Story v. Hefner (1975),
at
http://www.oscn.net/applications/ocisweb/DeliverDocument.asp?citeID=47018).
In easement by implication, which is not exactly the same as easement
by necessity, there must have been an implication that the easement
was to exist when the property was divided: "To establish an easement
by implication there must first be a conveyance that divides one
ownership into separately owned parts. At the time of the conveyance
one part of the property must be being used for the benefit of the
other part, creating a quasi-easement. The use must be apparent and
continuous and must be reasonably necessary to the enjoyment of the
quasi-dominant tract" (Story v. Hefner). Thus if your property had
access to the road only through your aunt's property, and it has
always been that way since the properties were divided, and access to
the road was then as now necessary to make use of the property, you
might have an easement by implication. If you're getting the idea that
proving these things are technical matters that require a lawyer to do
right, you're getting the right idea.
If a title search, which you should be able to do yourself at the
recorder's office, does not turn up a recorded easement allowing you
to use the road, you need to put as much effort as you can into
settling the matter amicably, no matter how obnoxious your relatives
are acting. If you have to take the matter to law, you will need a
lawyer who knows Oklahoma real estate laws and customs, and you will
have to live with the possibility that you will not prevail.
--
Not a lawyer,
Chris Green
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