Full question:
We have a residence in Charleston County, SC (Johns Island). Our house/property faces a state maintained rural road. We are having a dsipute with a neighbor and her dog. She claims she may walk her dog on our property as long as she remains within the area of the easement. We believe easements are on private property but as an easement certain governments or utitlities may access for specific reasons but not private citizens for recreation or personal reasons. Can you advise? Is this treaspasing?
- Category: Real Property
- Subcategory: Easements
- Date:
- State: South Carolina
Answer:
We are trying to find a way to take your side on this, but it is difficult. The bottom line is it's a public road, and reasonable use thereof by the public is going to be allowed - including walking, bicycling, dog walking, and anything else normally done on a road.
The "road" is going to technically include the whole easement: the roadbed, the curb, and whatever land along the shoulder that is included in the easement. You may want to find out exactly how much land this is. Ask the road maintenance people, or the land records office - perhaps look at a plat of your neighborhood. Then you could fence it at the edge/border, and at least you'd have the fence between you and your undesirable neighbor.
Obviously your neighbor and/or dog is doing things that make you really unhappy, or you wouldn't have become confrontational about it. We've scooped enough poop out of our yards to get irritated at dog walkers. Maybe you feel the dog is dangerous to you or your family, maybe it is walked without a leash, maybe it strays across the easement boundary onto your proper property, maybe the dog and owner linger in front of your house rather than passing on through in a normal way. The closer your house/front porch is to this road, certainly the more unwelcome this "intrusion" is.
You need to find out exactly where the easement is, and mark it. It doesn't have to be a fence at first. Just some stakes and ribbon/tape/string/wire. Post a small "no trespassing" sign at each end. If the person or the dog are crossing this boundary, then yes, they are definitely trespassing - you can call the sheriff, and videotaping/photographing them doing this will help.
If they do not cross, there are still several things you can try.
Explain to them, verbally, or preferably in writing, exactly what you object to so much. The poop you can see and smell on your property, the dangerousness or loudness of the dog, any lingering in front of your house, whatever it is you have the problem with. Ask them (in the letter or verbally) to stop or walk their dog the other way down the road - not past your house.
If they don't stop, tell them you are going to videotape them, and that you are going to call the sheriff and an attorney if they continue the objectionable behavior. Tell them it may not be trespassing because of the easement, but it is certainly what is called a "private nuisance"** If this threat doesn't stop them, then actually videotape them (or pretend to) one day, and make sure they see you doing it.
**In legal terminology, a nuisance is a substantial interference with the right to use and enjoy land, which may be intentional, negligent or ultra hazardous in origin, and must be a result of defendant's activity. Nuisances can include noxious smells, noise, burning, misdirection of water onto other property, illegal gambling, unauthorized collections of rusting autos, indecent signs and pictures on businesses and many other activities. If a nuisance interferes with another person's quiet or peaceful or pleasant use of his/her property, it may be the basis for a lawsuit for damages and/or an injunction ordering the person or entity causing the nuisance to stop or limit the activity (such as closing down an activity in the evening).
If the videotaping doesn't stop them from coming back, then you are going to have to actually contact a local attorney. At first you can just ask them to write a letter on their letterhead, demanding your neighbor cease either the trespassing, the private nuisance, or both - and explaining how the neighbor's behavior qualifies as a private nuisance under state law. The attorney's letter should also explain the damages that will be sought. Also that because of the videotaped evidence, the judge will obviously rule in your favor. That attorney fees will be sought from the neighbor.
The lawyer will not bill you much for this letter. $75-$200, depending on his/her rates, etc. Hopefully, the letter will scare the neighbor into stopping. If not, I don't think the sheriff is going to do you much good (unless your neighbor or the dog is actually trespassing over the boundary of the easement), but you could file a complaint. If that doesn't help, you'll need to go back to the lawyer and sue the neighbor for real. The court will hopefully order the neighbor not to walk the dog in front of your house - if you win at court, which is never a sure thing.
Talking to a local attorney is highly recommended. Under no circumstances should you get into a physical confrontation with the neighbor.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
