We bought farmland in Mississippi a few years back—mostly hay fields. In one
field there is a 4-acre corner that is fenced off from the rest of the field.
This corner was originally part of our field, but the survey shows it is owned
by our neighbor. The area is completely cut off from the rest of the neighbor's
property by a creek and is overgrown. We feel our neighbor has abandoned this
portion of his property due to lack of accessibility. Since we have access to
these 4 acres can we clean up the corner, incorporate it back into our fields
and start cutting hay on it? Would this lay the groundwork for adverse
possession?
Yes, continually using the 4-acre field for hay production over the statutory
period (10 years in Mississippi) without permission may entitle you to bring a
quiet title action to have title to the parcel changed to your name.
However, you should consider the cost of the court action, attorney fees and
time for this quiet title action.
The court may not even grant title to you because you are aware of the proper
title. There's also the uncertainty each year of planting a crop, working the
land and then having your neighbor bring a trespass action against you.
Adverse possession requires you have a reasonable claim or belief that the
contested property is yours.
Weigh all these costs against simply offering to buy the 4 acres, or exchange it
for property with your neighbor. If this neighbor truly has no interest in the
property he may take a low price, and you'll have a peaceful and profitable
coexistence.
—Robert P. Achenbach/Agricultural Law Digest
We are being sued for an easement across our land. The people bringing this suit
claim they have a right by necessity. Yet they have been using a road over their
own land for the past five years. We think this is a family matter, where part
of the land is going to one family member and part to another. We feel that they
have no right by necessity to our land and need to work it out among themselves.
Do we have any rights in this matter?
In order for an easement by necessity to arise in Texas, there are three
requirements:
1. There must be unity of ownership by the dominant estate (the neighbor) and
the servient estate (you).
2. The roadway must be a necessity and not merely a convenience for your
neighbor.
3. There must have been a necessity existing at the time of the severance of
both the dominant and servient estate.
Based on your question, it appears the neighbor would not have a legal basis for
establishing an easement by necessity because there never was a single tract of
land that has been severed as between you and the neighbor; hence this would not
meet the unity of ownership requirement.
Laws vary from state to state, and it's necessary to confer with an attorney in
your state to develop the facts and applicable law where the land is located.
—C. Dan Campbell/Brooks & Campbell
Write to Law of the Land
2204 Lakeshore Dr., Suite 415
Birmingham, AL 35209
or email vmyers@progressivefarmer.com.