A Locked Gate, a Fence Off the Deed Line, and a 35-Acre Minimum
Rancher Ben owns a 40-acre parcel in Big Horn County. For 12 years he has crossed his neighbor's land on a dirt road to haul hay, and the neighbor never gave permission but never objected until last month, when he locked a gate. Ben's deed describes the parcel as the 'NW 1/4 of the SE 1/4,' but his fence sits about 15 feet inside the deed line. A recorded utility easement crosses the parcel. Ben wants to split the 40 acres into four 10-acre lots and sell them; the county has a 35-acre minimum lot size in that zone. A well supplies the house.
1. Analyze Ben's claimed road right. What facts matter, and what should be done before marketing the parcel?
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Ben should not assume he has an easement. A prescriptive easement requires use that is open, notorious, adverse, and continuous for the statutory period. 'Never gave permission' helps show adversity, but a court will look at whether the neighbor objected, whether the use was occasional or seasonal, whether Ben maintained the road, and whether locking the gate interrupted the use. A recorded utility easement does not create a road right for Ben. The buyer's title commitment will except easements of record and may show no access easement. Ben should negotiate a written easement or seek a court determination before selling; a survey and title report should be ordered.
2. What should be done about the fence that is 15 feet inside the deed line?
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The fence is not the legal boundary if the deed line is 15 feet away. Ben should order an ALTA/NSPS survey and compare the deed description with monuments and occupancy. If Ben has treated the strip as his own for the statutory period, there may be an adverse possession or boundary-by-acquiescence argument, but that is litigation risk, not a marketable-title certainty. The seller's disclosure should mention the fence discrepancy. The buyer should not rely on the fence; the title company may require a quitclaim or boundary line agreement from the neighbor before insuring.
3. Can Ben split the parcel into four 10-acre lots? What are the land-use and disclosure issues?
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Ben cannot split the 40 acres into four 10-acre lots under a 35-acre minimum lot size. Ten-acre lots would violate the county zoning rule, and recording a plat without approval would not cure it. Ben's options are to seek rezoning or a variance if the county allows, sell the parcel as one 40-acre tract, or design a different split that meets the minimum. He also needs to confirm legal access, well and septic capacity, and any covenants. The licensee should direct Ben to the county planning office and not advertise the lots as buildable before approvals.