Can an Easement Holder Block Construction of a Road?

Full question:

Parents deeded a portion of land to child for a house with mortgage. Child has access to his property through an existing road that is on his deed as a temporary access. It has been a road for the past 50 plus years. Because of mortgage guidelines a permanent easement was placed on the deed. There is no road and has never been a road - it is an easement on paper only. Child has since paid his mortgage off (if this is any bearing). Another person has always used the temporary easement for all these years and has recently found that the other easement is in existance which if road were constructed it would border in another area to the property that he goes to he could build another gate and go to it there. This is family property where the easement is and the child that has the house will be and has always been allowed to get to his property. What recourse can be done to keep a road that would be very costly from being constructed. This property is in the country and very wooded. This deed was made approximately 16 years ago.

• Category: Real Property
• Subcategory: Easements
• Date: 04/07/2025
• State: Alabama

Answer:

There are basically two types of easements- easements in gross and appurtenant easements. Easements in gross are personal rights given to individuals or specific groups. Once the easement owner dies or, in the case of corporations, dissolves, the easement terminates. Appurtenant easements are more permanent and are given to both the property and its owner. If the property owner with an easement sells the property, the new buyer gains the easement rights that belong with the property. To be a legal appurtenant easement, the properties involved must be adjacent to each other and must be owned by separate entities. The characterization of an easement will affect the rights to transfer the easement to another. Easements appurtenant are adjacent to the servient estate (the underlying land). If the dominant estate (the property which enjoys the benefit of an easement over the servient estate) is sold or otherwise transferred to another, the easement over the servient land is transferred with it.

When the title is transferred, the easement appurtenant typically remains with the property. This type of easement runs with the land; which means that if the property is bought or sold, it is bought or sold with the easement in place. The easement essentially becomes part of the legal description.

To terminate an easement, a condition for the purpose of the easement must have changed, such as:

• Easement's purpose no longer exists

• Ownership of the easement and of the land where the easement is located merges into one owner

• Land owner releases the easement

• Easement is abandoned

• Nonuse (of a prescriptive easement)

• Adverse possession by the owner of the land where the easement is located

• Court judgment in a quiet title action

• Misuse of the easement

Misuse of an easement does not usually terminate the easement but may give rise to claims for legal or equitable remedies. Legal proceedings may be necessary to interpret and determine the scope of easements.

An easement by implication can be created if it is at least reasonably necessary to the enjoyment of the original piece of property, the land is divided, so that the owner of a parcel is either selling part and retaining part, or subdividing the property and selling pieces to different new owners, and the use for which the implied easement is claimed existed prior to the severance or sale. The courts will find an easement by necessity if two parcels are so situated that an easement over one is strictly necessary to the enjoyment of the other. The creation of this sort of easement requires that at one time, both parcels of land were either joined as one or were owned by the same owner. An easement by necessity is allowed by law for the full enjoyment of property. An easement to provide access over adjacent property if crossing that property is absolutely necessary to reach a landlocked parcel would be one granted by necessity. Parcels without access to a public way may have an easement of access over adjacent land, if crossing that land is absolutely necessary to reach the landlocked parcel. This easement is extinguished upon termination of the necessity (for example, if a new public road is built adjacent to the landlocked tenement). An easement by necessity arises only when "strictly necessary".

However, the landlocked owner might be required to obtain a license for a new commercial use or to cause damage during access (e.g., a logging road or blazed trails). Some states disfavor granting easements by necessity when the need was created by the owner's own actions, say, by selling off plots of land resulting in a landlocked parcel.

A permissive easement is simply an allowance to use the land of another. It is essentially a license, which is fully revocable at any time by the property owner. In order to be completely certain that a permissive easement will not morph into a prescriptive easement, some landowners erect signs stating the grant of the permissive easement or license. Most litigated easements are those created without permission. An easement by prescription is one that is gained under principles of adverse possession. Adverse possession is a means by which someone may acquire title to the land of another through certain acts over a defined period of time. If a person uses another's land for more than the statute of limitations period prescribed by state law, that person may be able to derive an easement by prescription. The use of the land must be open, notorious, hostile, and continuous for a specified number of years as required by law in each state. The time period for obtaining an easement by adverse possession does not begin to run until the one seeking adverse possession actually trespasses on the land. The use of the easement must truly be adverse to the rights of the landowner of the property through which the easement is sought and must be without the landowner's permission. If the use is with permission, it is not adverse. There must be a demonstration of continuous and uninterrupted use throughout the statute of limitations period prescribed by state law.

Injunctive relief consists of a court order called an injunction, requiring an individual to do or not do a specific action. It must be proven that without the injunction, harm will occur which cannot be remedied by money damages. To issue a preliminary injunction, the courts typically require proof that (1) the movant has a ‘strong’ likelihood of success on the merits; (2) the movant would otherwise suffer irreparable injury; (3) the issuance of a preliminary injunction wouldn't cause substantial harm to others; and (4) the public interest would be served by issuance of a preliminary injunction.

The answer will depend on the facts and wording and nature of the current easement. It is possible the easement may need to be amended, or that the new use would terminate the easement and require a new easement to be created. I suggest contacting a local attorney who can review all of the facts and documents involved.