The Gated Right-of-Way and the 12-Foot Encroachment
A 1952 subdivision plat in a NH town shows Lots 1-4 and a 40-ft-wide 'Right of Way' running from the town road between Lots 1 and 2 to Lot 4 at the rear. Lot 4's deed says 'together with a right of way over the existing driveway as shown on said plat.' The driveway has been gravel, plowed, and used continuously by Lot 4 owners since 1952. In 1998, Lot 2's owner built a garage that encroaches 12 ft into the platted right-of-way; Lot 4 owners continued to use the remaining 28 ft. In 2024 Lot 2's new owner installs a gate across the driveway and tells Lot 4 owner to stop using it. Lot 4 owner claims a prescriptive easement and also says the garage encroachment has become Lot 4's property by adverse possession. Your survey shows the plat centerline, the driveway centerline 6 ft south, the garage footprint, and a fence along the south side of the driveway that has been in place since at least 1985. The client is Lot 4 owner.
1. Identify the interests at issue and explain which facts support or defeat the express easement, prescriptive easement, and adverse possession claims.
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Lot 4 has an express easement created by the deed and the 1952 plat. The deed grants a right of way over the existing driveway as shown on the plat; the plat shows a 40-ft right of way. The physical driveway being 6 ft south of the plat centerline may affect the location or scope, but it does not automatically eliminate the express easement. A prescriptive easement claim is weakened because Lot 4's use since 1952 was under the express easement, so it was not adverse to Lot 2. Adverse possession of the 12-ft garage strip is also weak: Lot 4 did not possess that strip; Lot 2's garage occupied it. The fence since 1985 may be occupation evidence, but it is along the south side of the driveway and does not establish Lot 4's possession of the garage strip. The gate is a physical obstruction; whether it is an unlawful interference with the express easement is a legal question.
2. What would you show on the survey plan and what would you tell the client about the gate and garage?
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I would show the 1952 plat right of way with its centerline and 40-ft width, the physical driveway centerline 6 ft south, the gate, the garage footprint, and the fence. I would dimension the garage encroachment into the platted right of way and label it 'apparent encroachment.' I would label the fence as an occupation line, not a boundary. The plan notes would cite the deed and plat, state that the right-of-way location is per the 1952 plat, and state that legal status of the gate and encroachment is not determined by the survey. I would tell the client that the express easement is likely the strongest claim, that the gate may be an interference, that the prescriptive claim is complicated by the express easement, and that the adverse-possession claim to the garage strip is weak. I would recommend an attorney and advise against self-help removal of the gate.
3. The client asks you to draw the boundary at the fence because it has been there for 40 years. How do you respond?
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I would not draw the boundary at the fence on that basis. A surveyor can locate and show the fence and any occupation, but cannot create or transfer title by drawing a line. A 40-year fence may support a boundary-by-acquiescence, practical-location, or adverse-possession argument, but those require proof of the legal elements and, in New Hampshire, the 20-year adverse-possession period under RSA 508:2, plus continuity, hostility, and tacking. Here the fence is along the south side of the driveway, not the north 12-ft garage strip, so it does not prove possession of the strip the client wants. I would prepare an exhibit showing the fence and the plat right of way for the attorney, and keep the boundary survey tied to the record and physical evidence.