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. Once an easement is created, the holder of the easement rights has the right and the duty to maintain the easement for its stated purpose, unless otherwise agreed between the holder of the easement rights and the owner of the underlying property. (That’s right: easements can cover rights to air space, area underground, and the surface of land.) 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. The extent of the right created is defined by all relevant use that contributes to the creation of the servitude, including construction and grading. The owner of a right-of-way easement possesses the legal right to use real property for his private use. Now, the DNRC is considering a commercial timber lease in the sections that the access road to my land occupies. MoreLaw Legal Marketing Services The Better Way To … given. During this time the landlocked parcel can not be accessed or used. If that doesn't work, Montana property line and fence laws can help resolve many common issues. Prescriptive easement: Prescriptive describes the way in which an easement comes into being. 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. It is a private road easement that exits on to a county road. (iv) The width of a proposed railroad easement shall be 100 feet on either side of the center line of any such railroad. Knowing the difference between the two can help you protect your property rights and avoid unnecessary conflicts when others want to use your property. The easement gives people the right to use the road, but it does not give them right of possession. I live on a private road in a rural area of Montana. 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. Massachusetts!Land!Conservation!Conference!2H,April2,2016! A property easement is generally written and recorded with the local assessor’s office. senate bill no. 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. In Montana, any person who has a vested interest in a servient tenement can create a servitude (70-17-104). A survey will define the property lines to hopefully prevent any questions of land ownership or the need to file for prescriptive easements. house bill no. 418. introduced by c. swysgood. Only one Montana statute specifically addresses prescriptive easements. 186 MONTANA LAW REVIEW Vol. 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. II. An access easement is a right to pass over someone else's property for - you guessed it - access. The documented easement will show up when a title search is conducted and it stays there indefinitely, unless both parties agree to remove it. Perpetual easements provide the best protection for the land and make potential tax benefits available to the landowner. Uses of Easements . 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. The best solution is to talk through the issue. LEGAL BACKGROUND A. 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. 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. An easement is the right for one person to use another's property for a specific purpose. He's been teaching Property Law and related courses at various law schools since 1998. Quick Look: Montana Property Line and Fence Laws. There is no way for the owner of that land to access a public road. This chart highlights some of Montana's state laws relevant to property line and fence disputes. 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. The landowner decides. The Law of Easements and Licenses in Land, 10-43 – 10-45, (West Group 2001). There are several ways to create a right-of-way, and even more ways to terminate one. This is an easement created in Law because the easement is necessary for the reasonable use of the landlocked property. Easements & Rights of Way, Public and Private Roads ! the potential problems with Montana easement law as a result of this deci-sion. The width of the Right-of-Way or easement thus created would be as shown on the plat or in the dedication. Two types of easements that are commonly confused are access easements and road easements. Landlocked land is a classic example. 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. One land owner has placed a speedbump on the road to slow traffic. Wall, 2008 MT 145, ¶ 24, 343 Mont. Easements of necessity are implied in circumstances where land would be unusable if an easement were not implied. Montana law also allows for a term easement which must be in place for a minimum of 15 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. 1999 montana legislature. Common law dedication is recognized in Montana. However, an easement owner can't interfere with the easement holder's use and enjoyment of the easement. 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. For example, a grant of an easement for access to a specific public road ends if the public road is closed. 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). 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. 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. These easements are generally not transferable. Real Estate Laws Concerning Rights-of-Way. Easements can be granted to another person, such as a neighbor, or to an entity, such as an electric and gas utility. Right-of-Way Easements for Private Use. An "easement appurtenant" benefits another plot of land and runs with the land, regardless of who owns it. 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). ... Alan Romero is a professor of law and Director of the Rural Law Center at the University of Wyoming College of Law. 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. By so holding, the Court has extended means for the public to access surface wa- 1999 montana legislature. Common Law Dedication. I bought land with "un-insurable access" across DNRC state trust lands. Does the access road across DNRC state trust land (MT) to my private property have to have an easement? MoreLaw Legal Marketing Services The Better Way To Market Your Services On The Internet More... $0 (10-25-2019 - MT) CITY OF MISSOULA v. Road easements may be private or public, depending on who needs to use the road and why. 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. b. Obtaining an Easement by Necessity involves a law suit in court which takes time, money. Rather, we recognize one public road right-of-way.” The Montana court indicates a refinement rather than a basic change to prescriptive easement law. 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. A perpetual easement lasts forever. Prior to 1973, these dedications are considered Right-of-Way; after 1973 they are easements. about bill -- links. For example, a private road on your land that was created by easement … If a person gives evidence of his intention to donate land to the Presentedby!Attorney!Irene!Del!Bono! A private road also provides access to one's land. An easement holder may use the easement in any reasonable manner, notes FindLaw. about bill -- links. There are two types of easements: easements in gross and easements appurtenant.6 An 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. 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