Who is Responsible for Maintenance of an Easement?

Full question:

I am the owner of a small hobby farm in Washington Co Kentucky.To access my farm I have to drive across a deeded right of way which is mentioned in my deed and in the deed of the owner of the farm I travel across.For the last 24 years I have been the only one maintaining this road which is gravel.The maintenance consist of cutting the grass on the edge of the right of way.The road is 10 ft. wide and a half mile long, the easement is 20 ft. wide. Ordering the gravel and spreading it with my tractor. Filling pot holes 3 times a year. Digging and maintaining drainage ditches. Purchasing and installing culverts. Installing and cleaning out cattle guards. Pruning and trimming tree branches in the right of way and plowing snow and ice.The farm now has a new owner and I am told to stay off the road with my equipment and that he will maintain the road from now on. So far he is doing a fair job but the tree branches are scratching our cars and this winter he would not let me plow the snow so my wife had to stay in a motel and I had to put chains on my truck tires. His argument is that the plow damages the gravel surface which is partially true but since I have been maintaining it all these years I would just fix it in the Spring which I considered a traded off since chains are a real nuisance to put on in freezing weather for just a half mile and they won't work on my wife's car anyway. What are my options?

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

Answer:

It may be possible to ask a court for an injunction, declaratory relief. However, it may be a best settled as a matter of private negotiation with the owner. While the holder of an easement is typically responsible for it's maintenance, damage to the easement may cause it to terminate. He may be willing to create a road maintenance agreement in return for some form of compensation.

Once an easement is created, the owner of the easement has the right and the duty to maintain the easement for its purpose unless otherwise agreed between the owner of the easement and the owner of the underlying property. The owner of the easement can make repairs and improvements to the easement, provided that those repairs or improvements do not interfere in the use and enjoyment of the easement by the owner of the property through which the easement exists. Easements may be renegotiated under contract law principles, and may be terminated by abandonment when the easement holder intends to abandon an easement and takes actions which manifest that intent. Two types of easements include easements in gross and appurtenant easements. Easements in gross or personal easements are personal rights given to individuals or specific groups. Once the easement owner dies, 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.

A request for a declaratory judgment may be filed with the court, seeking to have a judicial declaration of the rights of parties involved. A petition for a declaratory judgment asks the court to define the legal relationship between the parties and their rights with respect to the matter before the court. It is used to determine the legal status of a situation, rather than the enforcement of the rights involved.