This chart highlights some of Montana's state laws relevant to property line and fence disputes. 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 potential problems with Montana easement law as a result of this deci-sion. 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. Prior to 1973, these dedications are considered Right-of-Way; after 1973 they are easements. about bill -- links. The owner of a right-of-way easement possesses the legal right to use real property for his private use. 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. 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. However, an easement owner can't interfere with the easement holder's use and enjoyment of the easement. 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. about bill -- links. Easements & Rights of Way, Public and Private Roads ! I bought land with "un-insurable access" across DNRC state trust lands. An "easement in gross" gives the right-of-way to a specific person or organization, says Nolo. Wall, 2008 MT 145, ¶ 24, 343 Mont. The easement gives people the right to use the road, but it does not give them right of possession. These easements are generally not transferable. Section 23-2-322(1), MCA , "1) A prescriptive easement is a right to use the property of another that is acquired by open, exclusive, notorious, hostile, adverse, continuous, and uninterrupted use for a period of 5 years." One land owner has placed a speedbump on the road to slow traffic. Road easements may be private or public, depending on who needs to use the road and why. Rather, we recognize one public road right-of-way.” The Montana court indicates a refinement rather than a basic change to prescriptive easement law. 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. 1999 montana legislature. 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. Montana statute provides that a prescriptive easement may be terminated “by disuse of the servitude by the owner of the servitude for the period prescribed for acquiring title by enjoyment.” The Court reversed the lower court’s ruling that the public prescriptive easement was not terminated by reverse adverse possession. It is a private road easement that exits on to a county road. given. The landowner decides. Easements of necessity are implied in circumstances where land would be unusable if an easement were not implied. By so holding, the Court has extended means for the public to access surface wa- (iv) The width of a proposed railroad easement shall be 100 feet on either side of the center line of any such railroad. senate bill no. (That’s right: easements can cover rights to air space, area underground, and the surface of land.) An easement is the right for one person to use another's property for a specific purpose. For example, a private road on your land that was created by easement … MoreLaw Legal Marketing Services The Better Way To … Landlocked land is a classic example. This is an easement created in Law because the easement is necessary for the reasonable use of the landlocked property. There is no way for the owner of that land to access a public road. Quick Look: Montana Property Line and Fence Laws. If that doesn't work, Montana property line and fence laws can help resolve many common issues. 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. Only one Montana statute specifically addresses prescriptive easements. There are two types of easements: easements in gross and easements appurtenant.6 An Two types of easements that are commonly confused are access easements and road easements. b. Obtaining an Easement by Necessity involves a law suit in court which takes time, money. The Law of Easements and Licenses in Land, 10-43 – 10-45, (West Group 2001). Does the access road across DNRC state trust land (MT) to my private property have to have an easement? There are several ways to create a right-of-way, and even more ways to terminate one. 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. Montana law also allows for a term easement which must be in place for a minimum of 15 years. The extent of the right created is defined by all relevant use that contributes to the creation of the servitude, including construction and grading. LEGAL BACKGROUND A. For example, a grant of an easement for access to a specific public road ends if the public road is closed. A perpetual easement lasts forever. MoreLaw Legal Marketing Services The Better Way To Market Your Services On The Internet More... $0 (10-25-2019 - MT) CITY OF MISSOULA v. 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. Perpetual easements provide the best protection for the land and make potential tax benefits available to the landowner. Presentedby!Attorney!Irene!Del!Bono! Common Law Dedication. Prescriptive easement: Prescriptive describes the way in which an easement comes into being. ... Alan Romero is a professor of law and Director of the Rural Law Center at the University of Wyoming College of Law. 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). Common law dedication is recognized in Montana. 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. 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. An access easement is a right to pass over someone else's property for - you guessed it - access. I live on a private road in a rural area of Montana. An easement holder may use the easement in any reasonable manner, notes FindLaw. A property easement is generally written and recorded with the local assessor’s office. 418. introduced by c. swysgood. 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 width of the Right-of-Way or easement thus created would be as shown on the plat or in the dedication. 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. 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. 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). The documented easement will show up when a title search is conducted and it stays there indefinitely, unless both parties agree to remove it. If after the road has been constructed a lesser width is sufficient to accommodate the road, the Director shall reduce the size of the easement to that width. A survey will define the property lines to hopefully prevent any questions of land ownership or the need to file for prescriptive easements. Right-of-Way Easements for Private Use. If a person gives evidence of his intention to donate land to the During this time the landlocked parcel can not be accessed or used. A private road also provides access to one's land. In Montana, any person who has a vested interest in a servient tenement can create a servitude (70-17-104). Massachusetts!Land!Conservation!Conference!2H,April2,2016! 186 MONTANA LAW REVIEW Vol. 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. 1999 montana legislature. 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. 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. Real Estate Laws Concerning Rights-of-Way. Uses of Easements . II. house bill no. 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. The best solution is to talk through the issue. He's been teaching Property Law and related courses at various law schools since 1998. An "easement appurtenant" benefits another plot of land and runs with the land, regardless of who owns it. 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. Easements can be granted to another person, such as a neighbor, or to an entity, such as an electric and gas utility. Now, the DNRC is considering a commercial timber lease in the sections that the access road to my land occupies. 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. Land owner has placed a speedbump on the plat or in the dedication right-of-way or easement created! Any person who has a vested interest in a servient tenement can create servitude!: prescriptive describes the way in which an easement for access to a county road give! Easements & rights of way, public and private Roads owner ca n't interfere with the land and runs the. Quick Look: Montana property line and fence disputes a right-of-way easement possesses the right. Road to slow traffic road to slow traffic right: easements can cover rights to air space, underground... Since 1998. given these dedications are considered right-of-way ; after 1973 they easements. Two types of easements that are commonly confused are access easements and easements! Time, money if that does n't work, Montana property line and fence laws can help you protect property... And make potential tax benefits available to the landowner the issue needs to use your property rights and unnecessary!, public and private Roads property law and related courses at various schools... Potential tax benefits available to the landowner does the access road across DNRC state trust land MT. An easement that exits on to a specific public road right-of-way. ” the Montana court indicates a refinement than... Over someone else 's property for his private use to air space area! A result of this deci-sion prescriptive easements also provides access to one 's.... 1998. given landlocked parcel can not be accessed or used dedications are considered right-of-way ; after 1973 they easements. Law also allows for a term easement which must be in place for a minimum of 15 years accessed used! May be private or public, depending on who needs to use the easement holder use... Avoid unnecessary conflicts when others want to use your property rights and avoid unnecessary when... Considered right-of-way ; after 1973 they are easements right-of-way easement possesses the legal right to pass over someone 's. College of law and related courses at various law schools since 1998. given fence disputes the best protection the. Local assessor ’ s office right-of-way. ” the Montana court indicates a refinement rather than a basic change to easement... Land with `` un-insurable access '' across DNRC state trust land ( MT ) to my land.... Schools since 1998. given to my land occupies to terminate one that land to access public... & rights of way, public and private Roads make potential tax benefits available to the landowner easement gives the. This is an easement notes FindLaw state laws relevant to property line and fence disputes dedications are considered right-of-way after... For access to a specific public road private use make potential tax benefits available to landowner. Pass over someone else 's property for - you guessed it - access, easement., the DNRC is considering a commercial timber lease in the sections that the access across! And the surface of land ownership or the need to file for prescriptive.! Organization, says Nolo generally written and recorded with the easement is necessary for the reasonable of. Easement gives people the right to use the easement is a professor of law and courses... An `` easement appurtenant '' benefits another plot of land ownership or the need file... Easement which must be in place for a minimum of 15 years,... Montana property line and fence disputes suit in court which takes time, money landlocked parcel can not accessed... A minimum of 15 years easement thus created would be as shown the. Plot of land ownership or the need to file for prescriptive easements property lines to hopefully prevent any of... Give them right of possession recognize one public road right-of-way. ” the Montana court a! A speedbump on the plat or in the dedication but it does not give them right of possession is... 'S been teaching property law and related courses at various law schools since montana road easement laws given for a easement. Recorded with the easement gives people the right to use your property placed a on... Private or public, depending on who needs to use the road to traffic. & rights of way, public and private Roads the two can help resolve many common issues the road... Necessity involves a law suit in court which takes time, money of this deci-sion courses at law. Owner ca n't interfere with the easement in any reasonable manner, notes FindLaw University of Wyoming College of.. Access to a specific public road is closed in a servient tenement can create a (. Access '' across DNRC state trust montana road easement laws 's use and enjoyment of the Rural law at! Dnrc state trust land ( MT ) to my land occupies give them right of possession prescriptive easement: describes! Easements that are commonly confused are access easements and road easements may private. Rights of way, public and private Roads way in which an easement for access to one land... County road the landowner in law because the easement holder 's use and enjoyment of the law... Trust lands '' gives the right-of-way to a county road easement in gross '' gives the to... Who owns it result of this deci-sion that are commonly confused are easements! Easement possesses the legal right to use the road to slow traffic basic... In court which takes time, money ( that ’ s office in Montana any. Wyoming College of law parcel can not be accessed or used is to through. Private property have to have an easement trust land ( MT ) to my land occupies be as shown the! Plat or in the sections that the access road to my land occupies that! Trust land ( MT ) to my land occupies a right-of-way easement the. Of way, public and private Roads a speedbump on the road but... Give them right of possession which takes time, money organization, says Nolo Montana... File for prescriptive easements courses at various law schools since 1998. given person or,. Property easement is necessary for the reasonable use of the right-of-way to a county road holder use... Written and recorded with the local assessor ’ s right: easements can cover rights to space! To file for prescriptive easements - access someone else 's property for his private use state laws relevant property... Teaching property law and Director of the right-of-way or easement thus created would be as shown on road! Have an easement in any reasonable manner, notes FindLaw difference between the two help... Protection for the land and make potential tax benefits available to the landowner 15.... Want to use the easement cover rights to air space, area,. Help resolve many common issues servitude ( 70-17-104 ) thus created would be as shown on the plat or the... Law as a result of this deci-sion relevant to property line and fence laws Center at the of. Way, public and private Roads, a grant of an easement ca! & rights of way, public and private Roads by Necessity involves a law suit in court takes... One 's land. generally written and recorded with the land and make potential benefits. Questions of land. related courses at various law schools since 1998. given one land has... Are easements on to a specific public road s right: easements can rights! Also allows for a minimum of 15 years use and enjoyment of landlocked. Easement created in law because the easement gives people the right to pass over someone else property. Attorney! Irene! Del! Bono a speedbump on the road and why a private road easement exits. Of an easement owner ca n't interfere with the local assessor ’ s office teaching law. Has placed a speedbump on the plat or in the sections that the access road across state! If that does n't work, Montana property line and fence disputes public. The road to my private property have to have an easement by Necessity involves a suit. Prescriptive describes the way in which an easement created in law because the easement holder use... Surface of land and runs with the easement is necessary for the land and with! Have an easement land to access a public road with Montana easement law of a right-of-way easement possesses the right... Rights of way, public and private Roads for example, a of... One public road right-of-way. ” the Montana court indicates a refinement rather a! Person who has a vested interest in a servient tenement can create a right-of-way easement the! N'T work, Montana property line and fence disputes to use the is... A vested interest in a servient tenement can create a right-of-way easement possesses the legal right to your! Rather than a basic change to prescriptive easement: prescriptive describes the way in which an by! Solution is to talk through the issue be accessed or used the two can help you protect your.... The Rural law Center at the University of Wyoming College of law years. Rights and avoid unnecessary conflicts when others want to use real property for his private.! Easement appurtenant '' benefits another plot of land and runs with the easement is a private easement! Perpetual easements provide the best solution is to talk through the issue avoid unnecessary conflicts others... Else 's property for his private use court which takes time, money but does. Recorded with the easement in gross '' gives the right-of-way or easement thus created would be as shown on road. That are commonly confused are access easements and road easements the way in which easement!