This Week's Q & A

Q: Like several of my neighbors, I own a double house lot; the rear lot abuts a "paper street," which has been shown on plot plans from the beginning of time. The abutting land on the other side of the street is owned by the town. Our problem arises because the town has just entered into an agreement to sell its land, including its portion of the paper street (to the center line) to a developer. This action makes our rear lots inaccessible, thus reducing the value of our property. The town insists that it has the right to sell its half of the paper street. Our contention is that we have "prescriptive easement rights" because we have used the street as a footpath for the past 20 years. Are we correct, and if so, how can we enforce our rights without undertaking costly legal action?

A: I can't respond to your question without first posing some questions of my own. First, why would the sale of half the street (or even the total elimination of the path) make your rear lots inaccessible? Presumably, you and your neighbors can still walk from the front of your properties to the rear lots without impediment. That being the case, why are you so concerned about access via the pathway? Because you are enamored of the tradition, or because you have another agenda that would make that rear lot access essential — for example, are you planning to construct homes on the vacant lots, which would require access to a public street?

If you have used the paper street continuously as a footpath for the past 20 years "in open and notorious claim of right," then you would have an easement by prescription. That would entitle you and your neighbors to continue using the path in the future as it has been used in the past -- namely, as a footpath. However, you do not necessarily have the right to pave the dirt path and open it to vehicular traffic, if it has not been used in hat way in the past. Adding uses that go beyond the traditional ones would (or could) be construed as "overburdening the easement."

It is possible (although not likely) that your deed conveys broader usage rights than you assume. For example, the deed may specify that you have access to the road for "reasonable vehicular uses," or that you are entitled to use it for all purposes for which roadways are commonly used in the town. If that right is spelled out in the deed and confirmed in your title, then you would be able to pave the road and create the access required for you to build on your lots, which, I suspect, is what you have in mind.

If you must rely solely on your easement rights, however, then you can't pave the road without first obtaining the permission of the developer who owns the other half. Presumably, that permission, if it is granted, would have a price tag attached to it. You can't prevent the city from conveying its portion of the road, to the center line. The town owns the property and has the right to sell it, whether you approve or not.

It seems to me that what you should be contemplating here is negotiation, not legal action. Start by checking the language of your deeds and titles to determine precisely what your rights are. Then approach the developer who now owns the abutting land to find out what he is planning. It may be that he is as interested as you in paving the road. Instead of bracing for a legal battle, you may find yourselves discussing a joint venture.