We are having a lot of trouble with trespassers—especially hunters, four-wheelers and 4-wheel-drive trucks. Not only do we dislike having strangers on our land, but we're concerned we might have some liability if any of them gets hurt. We have a wire fence, but they cut through it and come in on the more remote sides of our land. Is there anything we can do to stop this?
It is universally accepted that property owners must keep their premises reasonably safe for people on their land lawfully. The extent of the duty owed someone using your property varies by state. A trespasser, however, has unlawfully entered onto your land without consent. Generally speaking, the owner owes no duty of care to the trespasser.
In such cases, the landowner may not have to post warnings about dangerous areas, or even take reasonable care of the property. However, if the injured person can prove the owner knew it was likely trespassers would enter the property because of an attractive nuisance or a history of repeated trespassings, the owner could be liable for a premises liability claim.
Landowners are never allowed to "booby trap" their land against trespassers. Instead call your local law enforcement agency and continue to make reports each time someone cuts your fence. If you know the identity of the trespassers, sign an affidavit against them in your local small claims court.
—Joel Blackledge/Blackledge Law Firm
When our parents died, we inherited the farm. For about 60 years our parents came and went on this property with no problems of any kind. Now that they are gone, the person who owns the land adjoining ours has put up a locked gate at the entrance and posted his property. Without this entrance we lose our access to the land. What are our legal rights?
Under the laws in most states, the isolation of a piece of land, or land locking, is disfavored. There are rules allowing a person access to their land. The terms used in most states are "easement by prescription" or "easement by use."
You do have a right to access your property, and you can use the years of use by your parents as a basis for this request. Contact an attorney in your area and discuss your rights to an easement, as well as any rights you may have under the law of adverse possession.
—Scott Tidwell/Tidwell & Tidwell
A fellow I know has a quick claim deed to a 5-acre parcel of land. The land is registered to him at our county courthouse. He can't get a right-of-way to his land, though, because the owners of the larger tract surrounding his won't let him pass through their property. I am interested in buying these 5 acres, but I don't know how to get a right-of-way to access it. What steps do I need to take, and could this be very costly?
Most state courts will impose some sort of prescriptive easement for access to land-locked property, putting that easement on whatever access exists through the surrounding property. The access will be limited to what is reasonable use for your land's needs and what is least harmful to the surrounding property.
Forcing the issue through the courts will be expensive because you would need to hire an attorney, a land-use expert and possibly a surveyor. The least expensive, and most legally certain method, is to negotiate the easement with the existing owner of the surrounding land. Include size, maintenance and use restrictions for the easement road in your discussion.
To bring the owner to the negotiating table you will need a letter from your attorney laying out the state law on prescriptive easements. Then the neighbor's attorney can verify that his land may be subject to a court's determination as to extent and location of an easement access road. That should help this neighbor understand that negotiating with you at least provides him with more control, and at a lower cost than defending a lawsuit.
—Robert P. Achenbach/Agricultural Law Digest