Hello everyone,

Just found this site.

I have a property that has a right of way running through it for a neighbor.
I could get into all sorts of sordid details (and it's a doozy as far as the details), but I'm reluctant to give too much info where this is a public forum. Suffice to say, I am seeking a way to address this issue, and am not sure where I might find an attorney experienced in these matters.

THe ROW was originally intended for access to a well which no longer exists and there are a slew of other related matters. I did purchase the property and naively signed that I agreed to the ROW on the word of the realtor. A few attorney chats later, I was told me may have a good case to have it relocated. But there is at least one very substantial risk if I lose. Wish I felt more comfortable providing details, but does anyone know where I might seek a super sharp attorney who practices in NH, who has dealt with complex ROW cases? I haven't had much luck with the state Bar Association.

Thanks very much,
Nellie

Hi
I am not an Attorney; however I do have substantial experience in dealing with “right of ways” here in Massachusetts and in NH to a lesser extent. I have had someone try and fail to relocate my driveway easement here in Ma. And I know someone in NH who was trying to eliminate an old logging right of way.

Rights of way fall under the category of an “Easement”. In general these laws vary throughout the county. Here in the New England they are very much the same. First of all you need a “Land Use Lawyer”, not a Real-estate Attorney or a Lawyer that does house sales and closings if you want to eliminate this easement. It’s an issue for Land Court or Superior court if the dominate users don’t want to relinquish their use of the easement. The bad news is that easements can be difficult to eliminate. You need to know how the original easement / right of way was written on your deed and the deed of the people who use it. That will require your visiting the registry of deeds and tracing your deed and the other people’s deed back. You may learn that the easement was written in such a way that it dissolved when the well was no longer needed. Please know that all easement may not show up on a title search as they only go back 50 years in some cases.

You are the serviant land user;the person burdened by the easement. The people who use the easement are the dominate users, they benefit from the easement. You must find out what kind of easement that it is. Is it an easement in gross i.e. granted to a specific person for a given period of time – very few are. Is it an easement by prescription where the people acquired the easement by uninterrupted continuous use for a period of time? (In NH I think its 20 years.). Is it an easement granted for a specific use? How specific is the easement written? Was the easement granted?

The good news is if that easement was granted to get to a well and the well is no longer needed or the purposed for the easement no longer exists then you have a good chance of having it eliminated. As a rule of thumb there are three conditions that must be met to move and easement that is still needed and in use.

1) The new easement must be as useful as it was before.

2) The New easement may not increase the burden of use to the user.

3) The relocation may not frustrate the purpose of the original easement.

My advice would be to go search your deed and get all the information that you can then go see a "Land Use Attorney" who has dealt with this kind of thing

Good Luck
Bruce

Thank you very much, Bruce....

I have been searching through deeds going "way back".
The well no longer exists, and I did find some of the info you are mentioning.
For example, how the new ROW/Easement/Driveway would be addressed.
I even volunteered to one attorney the option of my paying for it. It is nearly completed. I have other things in my favor. I do not think I will be able to have it relocated, but due to the whole picture, it is worth pursuing, even if it costs quite a biut in $$.

Believe me when I tell you that I would not even bother but for other
issues with this property. I still need to find an attorney who has this expertise, but with your help, I now have the terminology. It all makes perfect sense.

I will still appreciate anything that anyone has to add.

Thanks again.
Nellie

Hi Again

You should know that as the serviant land owner you have the right to full and unfettered access to that ROW. Moreover the dominate users have no right to abuse the ROW in any way. For example, they can’t start using it for a parking lot or allow others to use it as their access to other land or anything else other than its intended use. I don’t know what situation it, but there are a whole host of limits that common law and case law recognizes to apply to any ROW. There is an excellent Law firm here in Plymouth Ma. Called Delaney & Muncey (http://www.delaney-muncey.com/) . Attorney Delaney is a Land use Lawyer who might know an Attorney in NH. He’s been at it for years. Visit their web sight. If that well is no longer there then the need for that ROW is eliminated. The dominates in this case can’t covert the intended use of the original ROW over to some another use. Again not a lawyer but have had to unfortunate luck of being on both sides of this kind of problem.

Good Luck

I will be sure and contact the firm, and I am gathering all the info together.
If I have to, I'll drive down to the Plymouth area....it's about 2 hours, but would be well worth it. Hopefully they will be able to refer me to someone nearer to me though. Can't thank you enough!

Hoping for an outcome that everyone will be ok with!

Great forum. Thank you for taking the time to write.

-Nellie