Full question:
I hold a deeded & recorded Driveway easement, obtained by the prior owner with a full legally described specific location, an accompanying survey map, across neighbor's property to my property line. language in the easement describes it as appurtenance, perpetual ,and running with the land. any transfer of the land by any means conveys the easement to successors, according to the document. The current neighbor is signatory to the document, which was notarized. I believe that makes it an express easement.With Idaho statute 55-313 in mind, can my express easement simply be relocated at the will of the serviette property owner, without compensation and approval by me, the owner of the dominant property? Some case law in Idaho suggests it cannot, since the location was specifically agreed to in the deeded easement. Thanks.
- Category: Real Property
- Subcategory: Easements
- Date:
- State: Idaho
Answer:
Courts are divided. Some of the factors that may be considered, among others, include whether the original parties intended to create a right of way that could not be changed by the owner of the burdened property and whether (2) "affording the landowner this unilateral, but limited, authority to alter a right of way strikes a balance between the landowner's right to use and enjoy the property and the easement holder's right of ingress and egress".
The general rule is that the servient tenement owner cannot change the location of the easement. The Restatement view would allow the servient tenement owner to change location because might lead to better overall use of land and net benefit.
For further discussion, please see:
http://findarticles.com/p/articles/mi_qa3714/is_200304/ai_n9181373/
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.
