One land owner has placed a speedbump on the road to slow traffic. An easement is the right for one person to use another's property for a specific purpose. Now, the DNRC is considering a commercial timber lease in the sections that the access road to my land occupies. The Law of Easements and Licenses in Land, 10-43 – 10-45, (West Group 2001). An easement holder may use the easement in any reasonable manner, notes FindLaw. Road easements may be private or public, depending on who needs to use the road and why. I live on a private road in a rural area of Montana. II. A survey will define the property lines to hopefully prevent any questions of land ownership or the need to file for prescriptive easements. Uses of Easements . Only one Montana statute specifically addresses prescriptive easements. An easement is a "nonpossessory" property interest that allows the holder of the easement to have a right of way or use property that they do not own or possess. house bill no. Perpetual easements provide the best protection for the land and make potential tax benefits available to the landowner. 186 MONTANA LAW REVIEW Vol. He's been teaching Property Law and related courses at various law schools since 1998. Section 23-2-322(1), MCA , "1) A prescriptive easement is a right to use the property of another that is acquired by open, exclusive, notorious, hostile, adverse, continuous, and uninterrupted use for a period of 5 years." Alex Esquire : ... Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains. Montana Easement Law : KEVIN and HEIDI DETTMERING v. FLATHEAD COUNTY, a political Subdivision of the State of Montana Call 888-354-4529 if you need a Easement and Road access Attorney in Montana. ... Alan Romero is a professor of law and Director of the Rural Law Center at the University of Wyoming College of Law. 1999 montana legislature. The landowner decides. The owner of a right-of-way easement possesses the legal right to use real property for his private use. Prior to 1973, these dedications are considered Right-of-Way; after 1973 they are easements. 2) Permanent, Temporary and Renewable rights (See Section IIC OWRCW – page 9) An easement is extinguished when its stated duration has expired or when the specific purpose for which it was granted no longer can be served by its continued existence. An "easement appurtenant" benefits another plot of land and runs with the land, regardless of who owns it. A right-of-way is a specific type of real estate easement, a land interest that allows one party to use another's land for a clearly defined purpose. The parties to an easement may specify which part of the servient land the dominant tenant may use, how the dominant tenant may use that land, the purposes for which the dominant tenant may use the land, and which land the easement benefits. Easements can be granted to another person, such as a neighbor, or to an entity, such as an electric and gas utility. During this time the landlocked parcel can not be accessed or used. Obtaining an Easement by Necessity involves a law suit in court which takes time, money. This is when someone is using a property owner’s land regularly for a certain period of time (set by state law) without being restricted by the owner. Rather, we recognize one public road right-of-way.” The Montana court indicates a refinement rather than a basic change to prescriptive easement law. The law implies intent by the landowner to provide an easement by necessity in favor of the landlocked parcel across the landowner's other lands when necessary to reach a public road. b. Under the common law of easement by necessity, a property owner must prove that both the servient and dominant tenements have a common source of title and a subsequent deprivation of access to a public road. An "easement in gross" gives the right-of-way to a specific person or organization, says Nolo. The easement gives people the right to use the road, but it does not give them right of possession. Basic Easement Law An easement "is a non-possessory interest in land,"5 meaning an ease-ment holder may use land owned by another individual. There are two types of easements: easements in gross and easements appurtenant.6 An The land to which the easement is attached is the dominant estate, and the land upon which a burden or servitude (easement) is held is called the servient estate (70-17-103). The width of the Right-of-Way or easement thus created would be as shown on the plat or in the dedication. However, an easement owner can't interfere with the easement holder's use and enjoyment of the easement. Common law dedication is recognized in Montana. Right-of-Way Easements for Private Use. If that doesn't work, Montana property line and fence laws can help resolve many common issues. KEVIN and HEIDI DETTMERING v. FLATHEAD COUNTY, a political Subdivision of the State of Montana Call 888-354-4529 if you need a Easement and Road access Attorney in Montana. Does the access road across DNRC state trust land (MT) to my private property have to have an easement? senate bill no. Easements of necessity are implied in circumstances where land would be unusable if an easement were not implied. The documented easement will show up when a title search is conducted and it stays there indefinitely, unless both parties agree to remove it. 418. introduced by c. swysgood. It is a private road easement that exits on to a county road. Property easement law, also known as right of way laws, describes the rights to use some part of a property for a specific purpose, types of easements, and easements vs. right of way. If a person gives evidence of his intention to donate land to the The extent of the right created is defined by all relevant use that contributes to the creation of the servitude, including construction and grading. In fact, the decision overturns a recent law passed in Montana that specifies that specifically did not give the public the right to trespass from prescriptive easements. about bill -- links. Easements & Rights of Way, Public and Private Roads ! These easements are generally not transferable. There is no way for the owner of that land to access a public road. Real Estate Laws Concerning Rights-of-Way. (That’s right: easements can cover rights to air space, area underground, and the surface of land.) 1999 montana legislature. If after the road has been constructed a lesser width is sufficient to accommodate the road, the Director shall reduce the size of the easement to that width. The easement may strictly prohibit such construction, or, alternatively, it may permit such construction so long as the improvement can be constructed in a way not to interfere with the city’s easement rights (which may include the right to access, maintain, repair, construct, and/or inspect the sewer line or underground utility). A road easement is an easement which allows for the construction and use of a road on a parcel of land by someone other than the property owner. There are several ways to create a right-of-way, and even more ways to terminate one. (iv) The width of a proposed railroad easement shall be 100 feet on either side of the center line of any such railroad. This chart highlights some of Montana's state laws relevant to property line and fence disputes. An easement doesn't allow the easement holder to occupy the land or to exclude others from the land unless they interfere with the easement holder's use. LEGAL BACKGROUND A. Montana statute provides that a prescriptive easement may be terminated “by disuse of the servitude by the owner of the servitude for the period prescribed for acquiring title by enjoyment.” The Court reversed the lower court’s ruling that the public prescriptive easement was not terminated by reverse adverse possession. MoreLaw Legal Marketing Services The Better Way To … MoreLaw Legal Marketing Services The Better Way To Market Your Services On The Internet More... $0 (10-25-2019 - MT) CITY OF MISSOULA v. Common Law Dedication. A private road also provides access to one's land. An access easement is a right to pass over someone else's property for - you guessed it - access. Other types of easements exist that are not for access, such as an easement to place and operate a cell tower on someone's land. 77 easements as expansive enough to include reasonably foreseeable public uses,3 the right the Court granted the public and the means for defining the right are inconsistent with Montana’s established easement laws. Montana law also allows for a term easement which must be in place for a minimum of 15 years. For example, a grant of an easement for access to a specific public road ends if the public road is closed. Prescriptive easement: Prescriptive describes the way in which an easement comes into being. Quick Look: Montana Property Line and Fence Laws. In Montana, any person who has a vested interest in a servient tenement can create a servitude (70-17-104). Presentedby!Attorney!Irene!Del!Bono! 173, 183 P.3d 84.5 Easements arise by express grant or reservation in a written instrument of conveyance, written declaration of covenant,6 operation of law (implication from necessity or prior use), or prescription. A property easement is generally written and recorded with the local assessor’s office. about bill -- links. Landlocked land is a classic example. Wall, 2008 MT 145, ¶ 24, 343 Mont. In a dissent to the decision, Justice Laurie McKinnon noted that the Montana Court had to import prescriptive road law from other states to justify their decision. The best solution is to talk through the issue. Massachusetts!Land!Conservation!Conference!2H,April2,2016! the potential problems with Montana easement law as a result of this deci-sion. given. By so holding, the Court has extended means for the public to access surface wa- Two types of easements that are commonly confused are access easements and road easements. 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